Exhibit 4.2
THE GUARANTORS PARTY HERETO, as Guarantors
AND
THE BANK OF
NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
77/8% SENIOR NOTES DUE 2020
March 9, 2010
TO THE INDENTURE DATED AS OF
October 15, 2009
TABLE OF CONTENTS
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ARTICLE 1
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ESTABLISHMENT; DEFINITIONS AND INCORPORATION BY REFERENCE
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SECTION 1.01. Establishment |
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1 |
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SECTION 1.02. Definitions |
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2 |
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SECTION 1.03. Other Definitions |
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26 |
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SECTION 1.04. Incorporation by Reference of Trust Indenture Act |
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27 |
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SECTION 1.05. Rules of Construction |
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27 |
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ARTICLE 2
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THE NOTES
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SECTION 2.01. Form and Dating |
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28 |
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SECTION 2.02. Execution and Authentication |
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29 |
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SECTION 2.03. Registrar and Paying Agent |
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29 |
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SECTION 2.04. Paying Agent to Hold Money in Trust |
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29 |
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SECTION 2.05. Holder Lists |
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30 |
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SECTION 2.06. Transfer and Exchange |
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30 |
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SECTION 2.07. Replacement Notes |
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32 |
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SECTION 2.08. Outstanding Notes |
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33 |
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SECTION 2.09. Treasury Notes |
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33 |
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SECTION 2.10. Temporary Notes |
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33 |
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SECTION 2.11. Cancellation |
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34 |
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SECTION 2.12. CUSIP or ISIN Numbers |
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34 |
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SECTION 2.13. Additional Notes |
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34 |
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ARTICLE 3
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REDEMPTION AND PREPAYMENT
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SECTION 3.01. Notices to Trustee |
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35 |
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SECTION 3.02. Selection of Notes to be Redeemed |
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35 |
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SECTION 3.03. Notice of Redemption |
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35 |
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SECTION 3.04. Effect of Notice Upon Redemption |
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36 |
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SECTION 3.05. Deposit of Redemption Price |
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36 |
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SECTION 3.06. Notes Redeemed in Part |
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37 |
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SECTION 3.07. Optional Redemption |
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37 |
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SECTION 3.08. Mandatory Redemption |
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38 |
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SECTION 3.09. Offer to Purchase |
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38 |
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ARTICLE 4
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COVENANTS
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SECTION 4.01. Payment of Notes |
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40 |
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SECTION 4.02. Maintenance of Office or Agency |
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40 |
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SECTION 4.03. Reports |
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40 |
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SECTION 4.04. Compliance Certificate |
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41 |
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SECTION 4.05. [Reserved] |
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42 |
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SECTION 4.06. [Reserved] |
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42 |
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SECTION 4.07. Restricted Payments |
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42 |
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SECTION 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries |
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44 |
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SECTION 4.09. Incurrence of Indebtedness |
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45 |
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SECTION 4.10. Limitation on Asset Sales |
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48 |
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SECTION 4.11. Affiliate Transactions |
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50 |
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SECTION 4.12. Liens |
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51 |
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SECTION 4.13. Offer to Repurchase Upon Change of Control |
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52 |
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SECTION 4.14. Corporate Existence |
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52 |
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SECTION 4.15. Additional Guarantors |
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52 |
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SECTION 4.16. Suspension of Covenants |
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52 |
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SECTION 4.17. Conduct of Business |
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53 |
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ARTICLE 5
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SUCCESSORS
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SECTION 5.01. Merger, Consolidation, or Sale of Assets |
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53 |
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SECTION 5.02. Successor Corporation Substituted |
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55 |
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ARTICLE 6
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DEFAULTS AND REMEDIES
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SECTION 6.01. Events of Default |
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55 |
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SECTION 6.02. Acceleration |
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57 |
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SECTION 6.03. Other Remedies |
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58 |
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SECTION 6.04. Amendments and Waivers |
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58 |
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SECTION 6.05. Control by Majority |
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58 |
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SECTION 6.06. Limitation on Suits |
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58 |
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SECTION 6.07. Rights of Holders of Notes to Receive Payment |
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58 |
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SECTION 6.08. Collection Suit by Trustee |
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59 |
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SECTION 6.09. Trustee May File Proofs of Claim |
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59 |
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SECTION 6.10. Priorities |
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59 |
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SECTION 6.11. Undertaking for Costs |
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60 |
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ARTICLE 7
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TRUSTEE
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SECTION 7.01. Certain Duties and Responsibilities |
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60 |
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SECTION 7.02. Notice of Defaults |
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60 |
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SECTION 7.03. Certain Rights of Trustee |
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61 |
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SECTION 7.04. Not Responsible for Recitals or Issuance of Notes |
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62 |
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SECTION 7.05. May Hold Notes and Serve as Trustee Under Other Indentures |
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62 |
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SECTION 7.06. Money Held in Trust |
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62 |
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SECTION 7.07. Compensation and Reimbursement |
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62 |
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SECTION 7.08. Disqualification: Conflicting Interests |
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63 |
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SECTION 7.09. Corporate Trustee Required: Eligibility |
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63 |
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SECTION 7.10. Resignation and Removal; Appointment of Successor |
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63 |
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SECTION 7.11. Acceptance of Appointment by Successor |
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64 |
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SECTION 7.12. Merger, Conversion, Consolidation or Succession to Business |
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65 |
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SECTION 7.13. Preferential Collection of Claims Against Issuer |
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65 |
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SECTION 7.14. Investment of Certain Payments Held by the Trustee. |
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65 |
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ARTICLE 8
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LEGAL DEFEASANCE AND COVENANT DEFEASANCE
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SECTION 8.01. Option to Effect Legal Defeasance or Covenant Defeasance |
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66 |
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SECTION 8.02. Legal Defeasance and Discharge |
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66 |
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SECTION 8.03. Covenant Defeasance |
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66 |
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SECTION 8.04. Conditions to Legal or Covenant Defeasance |
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67 |
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SECTION 8.05. Deposited Money and U.S. Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions |
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68 |
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SECTION 8.06. Satisfaction and Discharge |
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69 |
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SECTION 8.07. Repayment to Issuer |
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69 |
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SECTION 8.08. Survival |
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69 |
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ARTICLE 9
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AMENDMENT, SUPPLEMENT AND WAIVER
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SECTION 9.01. Without Consent of Holder |
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70 |
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SECTION 9.02. Supplemental Indentures with Consent of Holders |
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70 |
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SECTION 9.03. Compliance with Trust Indenture Act |
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72 |
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SECTION 9.04. Revocation and Effect of Consents |
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72 |
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SECTION 9.05. Trustee to Sign Amendments |
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72 |
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ARTICLE 10
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[RESERVED]
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ARTICLE 11
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GUARANTEES
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SECTION 11.01. Guarantees |
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72 |
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SECTION 11.02. Limitation on Liability |
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73 |
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SECTION 11.03. Successors and Assigns |
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74 |
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SECTION 11.04. No Waiver |
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74 |
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SECTION 11.05. [Reserved] |
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74 |
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SECTION 11.06. Release of Guarantor |
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74 |
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SECTION 11.07. Contribution |
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75 |
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ARTICLE 12
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[RESERVED]
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ARTICLE 13
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MISCELLANEOUS
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SECTION 13.01. Trust Indenture Act Controls |
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75 |
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SECTION 13.02. Notices |
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75 |
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SECTION 13.03. Communication by Holders of Notes with Other Holders of Notes |
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76 |
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SECTION 13.04. Certificate and Opinion as to Conditions Precedent |
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76 |
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SECTION 13.05. Statements Required in Certificate or Opinion |
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77 |
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SECTION 13.06. Rules by Trustee and Agents |
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77 |
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SECTION 13.07. No Personal Liability of Directors, Officers, Employees and
Stockholders |
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77 |
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SECTION 13.08. Governing Law |
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77 |
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SECTION 13.09. No Adverse Interpretation of Other Agreements |
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77 |
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SECTION 13.10. Successors |
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78 |
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SECTION 13.11. Severability |
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78 |
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SECTION 13.12. Counterpart Originals |
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78 |
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SECTION 13.13. Table of Contents, Headings, Etc |
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78 |
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SECTION 13.14. Force Majeure |
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78 |
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SECTION 13.15. Note Purchases by Issuer and Affiliates |
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78 |
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Section of |
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Trust Indenture |
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Section(s) of |
Act of 1939 |
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Second Supplemental Indenture |
§ 310 (a)(1) |
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7.10 |
(a)(2) |
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7.10 |
(a)(3) |
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N.A. |
(a)(4) |
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N.A. |
(a)(5) |
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7.10 |
(b) |
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7.08, 7.10 |
(c) |
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N.A. |
§ 311 (a) |
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7.11 |
(b) |
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7.11 |
(c) |
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N.A. |
§ 312 (a) |
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2.05, 13.03 |
(b) |
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2.05, 13.03 |
(c) |
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2.05 |
§ 313 (a) |
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7.06 |
(b)(1) |
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N.A. |
(b)(2) |
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7.06, 7.07 |
(c) |
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7.06, 13.02 |
(d) |
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7.06, 13.02 |
§ 314 (a) |
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4.03, 4.04, 13.05 |
(b) |
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N.A. |
(c)(1) |
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13.04 |
(c)(2) |
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13.04 |
(c)(3) |
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N.A. |
(d) |
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N.A. |
(e) |
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13.05 |
§ 315 (a) |
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7.01 |
(b) |
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7.05, 11.02 |
(c) |
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7.01 |
(d) |
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7.01 |
(e) |
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6.11 |
§ 316 (a)(1)(A) |
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6.05 |
(a)(1)(B) |
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6.04 |
(a)(2) |
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N.A. |
(a) (last sentence) |
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6.11 |
(b) |
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6.07 |
§ 317 (a)(1) |
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6.08 |
(a)(2) |
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6.09 |
(b) |
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2.04 |
§ 318 (a) |
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13.01 |
(b) |
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N.A. |
(c) |
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13.01 |
-v-
This
SECOND SUPPLEMENTAL INDENTURE, dated as of March 9, 2010 (this “
Second Supplemental
Indenture”), is by and between
Solutia Inc., a Delaware corporation (such corporation and any
successor as defined in the Base Indenture, the “
Issuer”), the Guarantors (as defined below) and
The Bank of
New York Mellon Trust Company, N.A., a national banking association, as trustee (such
institution and any successor as defined in the Base Indenture, the “
Trustee”).
WITNESSETH:
WHEREAS, the Issuer has previously executed and delivered an indenture, dated as of October
15, 2009 (the “Base Indenture”), with the Trustee providing for the issuance from time to time of
one or more series of the Issuer’s senior debt securities;
WHEREAS, Section 901 of the Base Indenture provides that the Issuer and the Trustee may enter
into an indenture supplemental to the Base Indenture to establish the form or terms of Securities
of any series as permitted by Section 301 and Section 901 of the Base Indenture; and
WHEREAS, the Issuer is entering into this
Second Supplemental Indenture to establish the form
and terms of its 7
7/
8% Senior Notes due 2020 (the “
Notes”; which defined term shall include the
Initial Notes and any Additional Notes);
WHEREAS, the Base Indenture is incorporated herein by reference and the Base Indenture, as
supplemented by this
Second Supplemental Indenture is herein called this “
Indenture,” as that term
is defined in the Base Indenture; and
WHEREAS, all acts and conditions necessary to authorize the execution and delivery of this
Second Supplemental Indenture and to make it a valid and binding obligation of the Issuer and the
Guarantors have been done or performed.
NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for
other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Issuer,
the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and
ratable benefit of the Holders of the Notes.
ARTICLE 1
ESTABLISHMENT; DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Establishment.
(a) There is hereby established a new series of Securities to be issued under this
Second
Supplemental Indenture, to be designated as the Issuer’s 7
7/
8% Senior Notes due 2020.
(b) There are to be authenticated and delivered on the date hereof Three Hundred Million
Dollars ($300,000,000) aggregate principal amount of the Notes. Additional Notes may be issued
under this Second Supplemental Indenture after the date hereof in accordance with Section 2.13.
(c) The Notes shall be issued in the form of one or more permanent Notes in substantially the
form set out in Exhibit A hereto.
(d) Each Note shall be dated the date of authentication thereof and shall bear interest from
the date of original issuance thereof or from the most recent date to which interest has been paid
or duly provided for.
(e) With respect to the Notes (and any Guarantees endorsed thereon) only, the Base Indenture
shall be supplemented pursuant to Sections 201, 301 and 901 thereof to establish the terms of the
Notes (and any Guarantees endorsed thereon) as set forth in this Second Supplemental Indenture,
including as follows:
(i) the provisions of Articles 1, 3, 4, 5, 6, 8, 9, 10 and 11 of the Base Indenture are
deleted and replaced in their entirety (other than Sections 103, 104, 111, 114, 512 and 906
of the Base Indenture) by the provisions of Articles 1 and 13, 2, 8, 6, 7, 5, 9, 4 and 3,
respectively, of this Second Supplemental Indenture;
(ii) the form and terms of the securities representing the Notes required to be
established pursuant to Article 2 of the Base Indenture shall be established in accordance
with Article 2 of this Second Supplemental Indenture; and
(iii) the provisions of Article 12 of the Base Indenture shall not be applicable to the
Notes.
To the extent that the provisions of this Second Supplemental Indenture (including those referred
to in clauses (i) and (ii) immediately above) conflict with any provision of the Base Indenture,
the provisions of this Second Supplemental Indenture shall govern and be controlling solely with
respect to the Notes (and any Guarantees endorsed thereon).
(f) Unless otherwise expressly specified, references in this Second Supplemental Indenture to
specific Article numbers or Section numbers refer to Articles and Sections contained in this Second
Supplemental Indenture, and not the Base Indenture or any other document.
SECTION 1.02. Definitions.
(a) All capitalized terms used herein and not otherwise defined below shall have the meanings
ascribed thereto in the Base Indenture.
(b) The following are definitions used in this Second Supplemental Indenture and to the extent
that a term is defined both herein and in the Base Indenture, unless otherwise specified, the
definition in this Second Supplemental Indenture shall govern solely with respect to the Notes (and
any Guarantee endorsed thereon).
“Acquired Indebtedness” means (1) with respect to any Person that becomes a Restricted
Subsidiary after the Issue Date, Indebtedness of such Person and its Subsidiaries existing at the
time such Person becomes a Restricted Subsidiary and (2) with respect to the Issuer or any
Restricted Subsidiary, any Indebtedness of a Person (other than the Issuer or a Restricted
Subsidiary) existing at the time such Person is merged with or into the Issuer or a Restricted
Subsidiary, or Indebtedness expressly assumed in connection with the acquisition of the stock or
any asset or assets from another Person; provided that such Indebtedness was not incurred by such
Person in connection with or in contemplation of such merger or acquisition.
“Additional Notes” means, subject to the Issuer’s compliance with Section 4.09, 77/8% Senior
Notes due 2020 issued from time to time after the Issue Date under the terms of this Second
Supplemental
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Indenture (other than pursuant to Sections 2.06, 2.07, 2.10 or 3.06 of this Second
Supplemental Indenture).
“affiliate” of any specified Person means any other Person, directly or indirectly,
controlling or controlled by or under direct or indirect common control with such specified Person.
For 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.
“Applicable Premium” means, with respect to any Note on any Redemption Date, the greater of:
(1) 1.0% of the principal amount of such Note; and
(2) the excess, if any, of (a) the present value at such Redemption Date of (i) the
redemption price of such Note at March 15, 2015 (such redemption price being set forth in
Section 3.07), plus (ii) all required interest payments due on such Note through March 15,
2015 (excluding accrued but unpaid interest to the Redemption Date), computed using a
discount rate equal to the Treasury Rate as of such Redemption Date plus 50 basis points;
over (b) then outstanding principal amount of such Note.
“Asset Sale” means any Transfer by the Issuer or any Restricted Subsidiary (other than to the
Issuer or a Restricted Subsidiary) of:
(1) any shares of Capital Stock of a Restricted Subsidiary (other than directors’
qualifying shares and, to the extent required by local ownership laws in foreign countries,
shares owned by foreign shareholders);
(2) all or substantially all the assets of any division, business segment or comparable
line of business of the Issuer or any Restricted Subsidiary; or
(3) any other assets of the Issuer or any Restricted Subsidiary outside of the ordinary
course of business of the Issuer or such Restricted Subsidiary.
Notwithstanding the foregoing, the term “Asset Sale” shall not include:
(a) for purposes of Section 4.10, a Transfer that constitutes a Permitted
Investment or a Restricted Payment permitted by Section 4.07 or permitted under
Section 5.01.
(b) sales of accounts receivable of the type specified in the definition of
“Qualified Securitization Transaction” to a Securitization Entity for the Fair
Market Value thereof;
(c) sales or grants of non-exclusive licenses to use the patents, trade
secrets, know-how and other intellectual property of the Issuer or any Restricted
Subsidiary to the extent that such licenses are granted in the ordinary course of
business, and do not prohibit the Issuer or any Restricted Subsidiary from using the
technologies licensed and do not require the Issuer or any Restricted Subsidiary to
pay any fees for any such use;
-3-
(d) a Transfer pursuant to any foreclosure of assets or other remedy provided
by applicable law by a creditor of the Issuer or any Restricted Subsidiary with a
Lien on such assets, if such Lien is permitted under this Second Supplemental
Indenture;
(e) a Transfer involving only Temporary Cash Investments or Inventory in the
ordinary course of business;
(f) any Transfer of damaged, worn-out or obsolete equipment in the ordinary
course of business;
(g) the lease or sublease of any real or personal property in the ordinary
course of business;
(h) a Transfer of assets having a Fair Market Value and a sale price of less
than $5.0 million;
(i) any Transfer constituting a taking, condemnation or other eminent domain
proceeding for which no proceeds are received;
(j) dispositions of accounts receivable in connection with the collection or
compromise thereof;
(k) dispositions of property to the extent that such property is exchanged for
credit against the purchase price of similar replacement property which is
concurrently purchased pursuant to a transaction otherwise permitted hereunder, in
each case under Section 1031 of the Code; or
(l) dispositions of the Equity Interests of or other Investments in any joint
venture to the extent required by the terms of customary buy/sell type arrangements
entered into in connection with the formation of such joint venture.
“Capital Lease Obligations” means an obligation that is required to be classified and
accounted for as a capital lease for financial reporting purposes in accordance with GAAP. The
amount of Indebtedness represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP (except for temporary treatment of
construction-related expenditures paid by any Person other than the Issuer or any of its Restricted
Subsidiaries under EITF 97-10, “The Effect of Lessee Involvement in Asset Construction,” which will
ultimately be treated as operating leases upon a sale-leaseback transaction), 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.
“Capital Stock” of any Person means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated)
equity of such Person, including any Preferred Stock, but excluding any debt securities convertible
into such equity.
“Change of Control” means the occurrence of any of the following events:
(1) any “person” or “group” (as such terms are 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 Voting Stock representing 50% or more of the
voting power of the total outstanding Voting Stock of the Issuer;
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(2) during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors (together with any new directors whose
election to the Board of Directors or whose nomination for election by the shareholders of
the Issuer was approved by a vote of the majority of the directors of the Issuer 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) cease for any reason to constitute a
majority of the Board of Directors then in office;
(3) the Issuer consolidates with or merges with or into another Person or another
Person merges with or into the Issuer, or all or substantially all the assets of the Issuer
and the Restricted Subsidiaries, taken as a whole, are Transferred to another Person, and,
in the case of any such merger or consolidation, the securities of the Issuer that are
outstanding immediately prior to such transaction and which represent 100% of the aggregate
voting power of the Voting Stock of the Issuer 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 Person
that represent immediately after such transaction, at least a majority of the aggregate
voting power of the Voting Stock of the surviving Person; or
(4) the Issuer liquidates or dissolves or the stockholders of the Issuer adopt a plan
of liquidation or dissolution.
“Code” means the Internal Revenue Code of 1986, as amended.
“Consolidated Coverage Ratio” as of any date of determination means the ratio of (a) the
aggregate amount of EBITDA for the period of the most recent four consecutive fiscal quarters for
which internal financial statements are available to (b) Consolidated Fixed Charges for such four
fiscal quarters; provided that:
(1) if the Issuer or any Restricted Subsidiary has incurred any Indebtedness since the
beginning of such period and prior to the event for which the Consolidated Coverage Ratio is
being calculated that remains outstanding prior to the event for which the calculation is
being made, EBITDA and Consolidated Fixed Charges for such period shall be calculated after
giving effect on a pro forma basis to such Indebtedness as if such Indebtedness had been
incurred on the first day of such period and the discharge of any other Indebtedness repaid,
repurchased, defeased or otherwise discharged with the proceeds of such new Indebtedness as
if such discharge had occurred on the first day of such period (except that, in the case of
Indebtedness used to finance working capital needs incurred under a revolving credit or
similar arrangement, the amount thereof shall be deemed to be the average daily balance of
such Indebtedness during such four-fiscal-quarter period);
(2) if since the beginning of such period the Issuer or any Restricted Subsidiary shall
have Transferred any assets in an Asset Sale, the EBITDA for such period shall be reduced by
an amount equal to the EBITDA (whether positive or negative) directly attributable to the
assets which are the subject of such Transfer for such period, and Consolidated Fixed
Charges for such period shall be reduced by an amount equal to the Consolidated Fixed
Charges directly attributable to any Indebtedness of the Issuer or any Restricted Subsidiary
repaid, repurchased, defeased, assumed by a third person (to the extent the Issuer and its
Restricted Subsidiaries are no longer liable for such Indebtedness) or otherwise discharged
with respect to the Issuer and its continuing Restricted Subsidiaries in connection with
such Transfer for such period (or, if the Capital Stock of any Restricted Subsidiary is
sold, the Consolidated Fixed Charges for such period directly
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attributable to the Indebtedness of such Restricted Subsidiary to the extent the Issuer
and its continuing Restricted Subsidiaries are no longer liable for such Indebtedness after
such sale);
(3) if since the beginning of such period the Issuer or any Restricted Subsidiary (by
merger or otherwise) shall have made an Investment in any Restricted Subsidiary (or any
Person which becomes a Restricted Subsidiary) or an acquisition of assets, which acquisition
constitutes all or substantially all of an operating unit or division of a business,
including any such Investment or acquisition occurring in connection with a transaction
requiring a calculation to be made hereunder, EBITDA and Consolidated Fixed Charges for such
period shall be calculated after giving pro forma effect thereto (including the incurrence
of any Indebtedness) as if such Investment or acquisition occurred on the first day of such
period;
(4) if since the beginning of such period any Person (that subsequently became a
Restricted Subsidiary or was merged with or into the Issuer or any Restricted Subsidiary
since the beginning of such period) shall have made any Transfer of assets in an Asset Sale,
any Investment or acquisition of assets that would have required an adjustment pursuant to
clause (2) or clause (3) above if made by the Issuer or a Restricted Subsidiary during such
period, EBITDA and Consolidated Fixed Charges for such period shall be calculated after
giving pro forma effect thereto as if such Transfer, Investment or acquisition occurred on
the first day of such period; and
(5) if the Issuer or any Restricted Subsidiary has repaid any Indebtedness since the
beginning of such period that no longer remains outstanding on such date of determination,
EBITDA and Consolidated Fixed Charges for such period shall be calculated after giving
effect on a pro forma basis to the repayment of such Indebtedness as if such Indebtedness
had repaid on the first day of such period as if such discharge had occurred on the first
day of such period.
For purposes of this definition, whenever pro forma effect is to be given to a transaction,
the amount of income, earnings or expense relating thereto and the amount of Consolidated Fixed
Charges associated with any Indebtedness incurred in connection therewith, the pro forma
calculations shall be (i) based on the reasonable good faith judgment of a responsible financial or
accounting officer of the Issuer and (ii) set forth in a certificate delivered to the Trustee from
such officer (it may include, for the avoidance of doubt, cost savings and operating expense
reductions resulting from such transaction (which are being given pro forma effect) that are
reasonably expected to be realized in the twelve month period immediately subsequent to such
transaction). If any Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest of such Indebtedness shall be calculated as if the rate in effect on the date
of determination had been the applicable rate for the entire period (taking into account any
Interest Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement has a
remaining term in excess of 12 months).
“Consolidated Fixed Charges” means, with respect to any period, the sum (without duplication)
of:
(1) the interest expense of the Issuer and the Restricted Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP consistently applied, including,
without limitation:
(a) amortization of debt issuance costs and debt discount;
(b) the net payments, if any, under Interest Rate Agreements (including
amortization of discounts);
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(c) the interest portion of any deferred payment obligation;
(d) accrued interest;
(e) commissions, discounts and other fees and charges incurred in respect of
letters of credit or bankers acceptance financings;
(2) the interest component of the Capital Lease Obligations paid or accrued during such
period;
(3) all interest capitalized during such period;
(4) interest accrued during such period on Indebtedness of the type described in clause
(6) or (7) of the definition of “Indebtedness”;
(5) the product of
(a) the amount of all dividends on any series of Preferred Stock of the Issuer
and the Restricted Subsidiaries (other than dividends paid in Qualified Stock and
other than dividends paid to the Issuer or to a Restricted Subsidiary) paid, accrued
or scheduled to be paid or accrued during such period; and
(b) a fraction, the numerator of which is one and the denominator of which is
one minus then current effective consolidated Federal, state and local tax rate of
the Issuer, expressed as a decimal;
and
(6) fees related to a Qualified Securitization Transaction.
“Consolidated Net Income” means, for any period, the net income (or loss) of the Issuer and
the Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with
GAAP consistently applied; provided that there shall not be included in such Consolidated Net
Income:
(1) any extraordinary, unusual, or non-recurring gains or losses or expenses;
(2) any net income or loss of any Person if such Person is not a Restricted Subsidiary,
except Consolidated Net Income shall be increased by the amount of cash actually distributed
by such Person during such period to the Issuer or a Restricted Subsidiary as a dividend or
other distribution (subject, in the case of a dividend or other distribution paid to a
Restricted Subsidiary, to the limitations contained in clause (3) below);
(3) the net income of any Restricted Subsidiary to the extent that the declaration of
dividends or similar distributions by that Restricted Subsidiary of that income is not at
the time permitted, directly or indirectly, without prior approval (that has not been
obtained), pursuant to the terms of its charter or any agreement, instrument and
governmental regulation applicable to such Restricted Subsidiary or its stockholders;
(4) any gain or loss realized upon the sale or other disposition of (x) any assets
(including pursuant to Sale and Leaseback Transactions) which is not sold or otherwise
disposed of in the ordinary course of business or (y) any Capital Stock of any Person;
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(5) any net after-tax income or loss from discontinued operations; and
(6) the cumulative effect of a change in accounting principles.
“Consolidated Net Tangible Assets” means, as of any date of determination, the Total Assets
less the sum of (1) the goodwill, net, and other intangible assets, and (2) all current
liabilities, in each case, reflected on the most recent consolidated balance sheet of the Issuer
and its Restricted Subsidiaries as at the end of the most recently ended fiscal quarter for which
financial statements have been or are required to have been delivered pursuant to this Second
Supplemental Indenture, as applicable, as of the date of determination, determined on a
consolidated basis in accordance with GAAP (and, in the case of any determination relating to any
Investment, on a Pro Forma Basis including any property or assets being acquired in connection
therewith).
“
Corporate Trust Office” means an office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office of The Bank of
New York Mellon Trust
Company, N.A., at the date of the execution of this Second Supplemental Indenture is located at 0
Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, Attn: Corporate Trust Administration.
“Credit Facilities” means (i) that certain $400,000,000 Credit Agreement dated as of February
28, 2008 among the Issuer, as U.S. borrower, Solaria Europe SPRL/BVA and Flexsys SA/NV, as European
borrowers, the lenders named therein, and Citibank, N.A. as administrative agent and as collateral
agent, (ii) that certain $1,200,000,000 Credit Agreement dated as of February 28, 2008 among the
Issuer, as borrower, the lenders named therein, and Citibank, N.A. as administrative agent and as
collateral agent, and (iii) any other documents evidencing Indebtedness, and in each case including
any notes, guarantees, collateral and security documents (including mortgages, pledge agreements
and other security arrangements), instruments and agreements executed in connection therewith, and
in each case as amended, amended and restated, supplemented, modified or Refinanced from time to
time, including, without limitation, any agreement or agreements extending the maturity of, or
Refinancing (including increasing the amount of borrowings or other Indebtedness outstanding or
available to be borrowed thereunder), all or any portion of the Indebtedness under such agreement,
including, without limitation, any indenture or indentures, and any successor or replacement
agreement or agreements, including, without limitation, any indenture or indentures with the same
or any other agents, creditor, lender or group of creditors, lenders, trustee or noteholders.
“Currency Agreement” means, with respect to any Person, any foreign exchange contract,
currency swap agreement or other similar agreement to which such Person is a party or a
beneficiary.
“Default” means any event which is, or after notice or passage of time or both would be, an
Event of Default.
“Designated Noncash Consideration” means the Fair Market Value of non-cash consideration
received by the Issuer or one of its Restricted Subsidiaries in connection with an Asset Sale that
is designated as Designated Noncash Consideration pursuant to an officer’s certificate, setting
forth the basis of such valuation, executed by a senior financial officer of the Issuer, less the
amount of cash or cash equivalents received in connection with a subsequent sale of such Designated
Noncash Consideration.
“Disqualified Stock” means, with respect to any Person, any Capital Stock which by its terms
(or by the terms of any security into which it is convertible or for which it is exchangeable) or
upon the happening of any event:
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(1) matures or is mandatorily redeemable pursuant to a sinking fund obligation or
otherwise; or
(2) is redeemable at the option of the holder thereof, in whole or in part,
in each case on or prior to the date that is 91 days after the Stated Maturity of the Notes and for
consideration that is not Qualified Stock; provided that any class of Capital Stock of such Person
that, by its terms, authorizes such Person to satisfy in full its obligations with respect to the
payment of dividends or upon maturity, redemption (pursuant to a sinking fund or otherwise) or
repurchase thereof or otherwise by the delivery of Qualified Stock, and that is not convertible,
puttable or exchangeable for Disqualified Stock or Indebtedness, will not be deemed to be
Disqualified Stock so long as such Person satisfies its obligations with respect thereto solely by
the delivery of Qualified Stock; provided further that any Capital Stock that would not constitute
Disqualified Stock but for provisions thereof giving holders thereof (or the holders of any
security into or for which such Capital Stock is convertible, exchangeable or exercisable) the
right to require the Issuer or any Restricted Subsidiary to redeem or purchase such Capital Stock
upon the occurrence of a change in control occurring prior to the final maturity date of the Notes
shall not constitute Disqualified Stock if the change in control provisions applicable to such
Capital Stock are no more favorable to such holders than the provisions set forth in Section 4.13
and such Capital Stock specifically provides that the Issuer or such Restricted Subsidiary will not
redeem or purchase any such Capital Stock pursuant to such provisions prior to the Issuer’s
purchase of the Notes as required pursuant to the provisions set forth in Section 4.13.
“Domestic Subsidiary” means a Restricted Subsidiary of the Issuer that is not a Foreign
Subsidiary.
“EBITDA” for any period means the sum of Consolidated Net Income for such period plus, without
duplication, the following to the extent deducted in calculating such Consolidated Net Income:
(1) Consolidated Fixed Charges;
(2) income tax expense determined on a consolidated basis in accordance with GAAP;
(3) depreciation expense determined on a consolidated basis in accordance with GAAP;
(4) amortization expense determined on a consolidated basis in accordance with GAAP;
(5) amounts attributable to minority interest;
(6) any unusual or non-recurring non-cash charge (including any impairment charge or
asset write-off pursuant to GAAP) (provided that if any such non-cash charge represents an
accrual or reserve for potential cash items in any future period, the cash payment in
respect thereof in such future period shall be subtracted from EBITDA to such extent, and
excluding amortization of a prepaid cash item that was paid in a prior period);
(7) all costs and expenses arising from or related to the Notes, the Credit Facilities,
the Equity Rights Offering, the Creditor Rights Offering or Solutia’s emergence from Chapter
11 protection incurred prior to October 15, 2010;
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(8) non-cash stock compensation, including any non-cash expenses arising from stock
options, stock grants or other equity-incentive programs, the granting of stock appreciation
rights and similar arrangements;
(9) to the extent the related loss is not added back in calculating such Consolidated
Net Income, proceeds of business interruption insurance policies to the extent of such
related loss;
(10) fees related to a Qualified Securitization Transaction;
(11) one-time cash charges associated with plant closures and other restructuring
charges, in all cases not exceeding $75.0 million in the aggregate prior to the final
maturity date of the Notes (excluding any such charges pursuant to the Transactions); and
(12) to the extent non-recurring and not capitalized, any fees, costs and expenses of
the Issuer and its Restricted Subsidiaries incurred as a result of acquisitions permitted
hereunder, Investments, Asset Sales permitted hereunder and the issuance, repayment or
amendment of Equity Interests or Indebtedness permitted hereunder (in each case, whether or
not consummated);
provided that EBITDA shall be reduced by the following:
(a) all non-cash items increasing such Consolidated Net Income (excluding (x) any
non-cash item to the extent that it represents an accrual of cash receipts to be received in
a subsequent period and (y) the amount attributable to minority interests);
(b) any non-recurring gains; and
(c) amounts paid in cash as dividends or other distributions to holders of minority
interests.
“Equity Offering” means a public or private offering or placement of Capital Stock of the
Issuer (other than Disqualified Stock) that generates gross proceeds to the Issuer thereof of at
least $25.0 million.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Fair Market Value” means, with respect to any asset, the price (after taking into account any
liabilities relating to such assets) that would be negotiated in an arm’s-length transaction for
cash between a willing seller and a willing and able buyer, neither of which is under any
compulsion to complete the transaction. Fair Market Value (other than of any asset with a public
trading market) in excess of $20.0 million shall be determined by the Board of Directors acting
reasonably and in good faith and shall be evidenced by a Board Resolution delivered to the Trustee.
“Foreign Subsidiary” means (i) a Restricted Subsidiary that is incorporated in a jurisdiction
other than the United States or a State thereof or the District of Columbia, and (ii) any
Restricted Subsidiary that has no material assets other than Capital Stock, securities or
indebtedness of one or more Foreign Subsidiaries (or Subsidiaries thereof).
“GAAP” means generally accepted accounting principles in the United States of America as in
effect and adopted by the Issuer on October 15, 2009.
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“Global Notes” means the global Notes substantially in the form of Exhibit A hereto issued in
accordance with Article 2.
“guarantee” means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Indebtedness or other obligation of any Person and any obligation,
direct or indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation of such 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
(2) entered into for the purpose of assuring in any other manner the obligee of such
Indebtedness or other obligation of the payment thereof or to protect such obligee against
loss in respect thereof (in whole or in part);
provided that the term “guarantee” shall not include endorsements for collection or deposit in the
ordinary course of business. The term “guarantee” used as a verb has a corresponding meaning. The
term “guarantor” shall mean any Person guaranteeing any obligation.
“Guarantee” means a full and unconditional senior guarantee of the Notes pursuant to this
Second Supplemental Indenture.
“Guarantor” means any Restricted Subsidiary of the Issuer that issues a Guarantee of the
Notes, in each case, until such Person is released from its Guarantee in accordance with this
Second Supplemental Indenture.
“Hedging Obligations” of any Person means the obligations of such Person pursuant to any
Interest Rate Agreement or Currency Agreement entered into in the ordinary course of business and
not for speculative purposes.
“Holder” means a Person in whose name a Note is registered.
“incur” means issue, create, assume, guarantee, incur or otherwise become liable for; provided
that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a
Restricted Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed
to be incurred by such Subsidiary at the time it becomes a Restricted Subsidiary. Neither the
accrual of interest nor the accretion of original issue discount shall be deemed to be an
incurrence of Indebtedness. The term “incurrence” when used as a noun shall have a correlative
meaning.
“Indebtedness” means, with respect to any Person, without duplication, and whether or not
contingent:
(1) all indebtedness of such Person for borrowed money or for the deferred purchase
price of assets or services or which is evidenced by a note, bond, debenture or similar
instrument, to the extent it would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP;
(2) all Capital Lease Obligations of such Person;
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(3) all obligations of such Person in respect of letters of credit or bankers’
acceptances issued or created for the account of such Person;
(4) net obligations of such Person under Interest Rate Agreements or Currency
Agreements;
(5) all Disqualified Stock issued by such Person and all Preferred Stock issued by any
Restricted Subsidiary of such Person, in each case, valued at the greater of its voluntary
or involuntary maximum fixed repurchase price plus accrued and unpaid dividends thereon;
(6) to the extent not otherwise included, any guarantee by such Person of any other
Person’s indebtedness or other obligations described in clauses (1) through (5) above; and
(7) all Indebtedness of others secured by a Lien on any asset of such Person, whether
or not such Indebtedness is assumed by such Person; provided that the amount of such
Indebtedness shall be the lesser of (x) the Fair Market Value of such asset at such date of
determination and (y) the amount of such Indebtedness.
For the avoidance of doubt, “Indebtedness” shall not include:
(a) current trade payables or other accrued liabilities incurred in the
ordinary course of business and payable in accordance with customary practices;
(b) deferred tax obligations;
(c) minority interest;
(d) non-interest bearing installment obligations and accrued liabilities
incurred in the ordinary course of business; and
(e) obligations of the Issuer or any Restricted Subsidiary pursuant to
contracts for, or options, puts or similar arrangements relating to, the purchase of
raw materials or the sale of Inventory at a time in the future entered into in the
ordinary course of business.
For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Stock which does
not have a fixed repurchase price shall be calculated in accordance with the terms of such
Disqualified Stock as if such Disqualified Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Second Supplemental Indenture, and if such
price is based upon, or measured by the Fair Market Value of, such Disqualified Stock, such Fair
Market Value is to be determined in good faith by the board of directors of the issuer of such
Disqualified Stock. The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and the maximum liability,
upon the occurrence of the contingency giving rise to the obligation, of any contingent obligations
as described above at such date; provided that the amount outstanding at any time of any
Indebtedness issued with original issue discount shall be deemed to be the face amount of such
Indebtedness less the remaining unamortized portion of the original issue discount of such
Indebtedness at such time as determined in conformity with GAAP. The accrual of interest, the
accretion or amortization of original issue discount, the payment of interest on any Indebtedness
in the form of additional Indebtedness or Disqualified Stock, the reclassification of preferred
stock as Indebtedness due to a change in accounting principles, and the payment of dividends on
Disqualified
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Stock in the form of additional shares of Disqualified Stock will not be deemed to be an
incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Second
Supplemental Indenture.
“Independent Financial Advisor” means a firm:
(1) which does not, and whose directors, officers or affiliates do not, have a material
financial interest in the Issuer or any of its Subsidiaries; and
(2) which, in the judgment of the Board of Directors, is otherwise independent and
qualified to perform the task for which it is to be engaged.
“Initial Notes” means $300,000,000 in aggregate principal amount of Notes issued under this
Second Supplemental Indenture on the Issue Date.
“Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement
or other similar financial agreement or arrangement.
“
Inventory” has the meaning provided in the Uniform Commercial Code of the State of
New York,
as amended.
“Investment” in any Person means any direct or indirect advance, loan or other extension of
credit (including by way of guarantee or similar arrangement) or capital contribution to, or any
purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by, such
Person. “Investment” excludes (a) any Restricted Payment of the type described in clause (2) of
the definition “Restricted Payment” and (b) any purchase or acquisition of Indebtedness of the
Issuer or any of its Subsidiaries.
For purposes of the definition of “Unrestricted Subsidiary,” the definition of “Restricted
Payment” and Section 4.07:
(1) “Investment” shall include the portion (proportionate to the Issuer’s direct and
indirect equity interest in such Subsidiary) of the Fair Market Value of the net assets of
any Restricted Subsidiary at the time that such Restricted Subsidiary is designated an
Unrestricted Subsidiary;
(2) any asset Transferred to or from an Unrestricted Subsidiary shall be valued at its
Fair Market Value at the time of such Transfer; and
(3) if the Issuer or any Restricted Subsidiary Transfers any Capital Stock of any
direct or indirect Restricted Subsidiary, or any Restricted Subsidiary issues Capital Stock,
such that, after giving effect to any such Transfer or issuance, such Person is no longer a
Restricted Subsidiary, the Issuer shall be deemed to have made an Investment on the date of
any such Transfer or issuance equal to the Fair Market Value of the Capital Stock of such
Person held by the Issuer or such Restricted Subsidiary immediately following any such
Transfer or issuance.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by
Moody’s and BBB- (or the equivalent) by S&P, or, in either case, an equivalent rating by any other
Rating Agency.
“Issue Date” means March 9, 2010.
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“Issuer Request” and “Issuer Order” mean, respectively, a written request or order signed in
the name of the Issuer by its Chairman or Vice Chairman of the Board, its President, its Chief
Financial Officer, or a Vice Chairman or Vice President of the Issuer, and also by its Treasurer,
an Assistant Treasurer, its Controller, an Assistant Controller, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
“Lien” means any mortgage, deed of trust, lien, pledge, charge, debenture, security interest
or encumbrance of any kind in respect of an asset with respect to any asset then held by the Issuer
or a Restricted Subsidiary, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any lease in the nature
thereof, any option or other agreement to sell or give a security interest in any asset and any
filing of, or agreement to give, any financing statement under the UCC or equivalent statutes) of
any jurisdiction other than to evidence a lease.
“Moody’s” means Xxxxx’x Investors Service, Inc. and any successor to its rating agency
business.
“Net Available Proceeds” from an Asset Sale means the aggregate cash proceeds received by such
Person and/or its affiliates in respect of such transaction, which amount is equal to the excess,
if any, of:
(1) the cash received by such Person and/or its affiliates (including any cash payments
received by way of deferred payment pursuant to, or monetization of, a note or installment
receivable or otherwise, but only as and when received) in connection with such transaction,
over
(2) the sum of (a) the amount of any Indebtedness that is secured by such asset and
which is repaid by such person in connection with such transaction (other than any such
Indebtedness assumed by the purchaser of such assets), plus (b) all fees, commissions, and
other expenses incurred by such Person in connection with such transaction, plus (c)
provision for taxes, including income taxes, attributable to the transaction or attributable
to required prepayments or repayments of Indebtedness with the proceeds of such transaction,
including any withholding taxes imposed on the repatriation of proceeds, plus (d) a
reasonable reserve for the after-tax cost of any indemnification payments (fixed or
contingent) attributable to seller’s indemnities to purchaser in respect of such transaction
undertaken by the Issuer or any of its Restricted Subsidiaries in connection with such
transaction, plus (e) if such Person is a Restricted Subsidiary, any dividends or
distributions payable to holders of minority interests in such Restricted Subsidiary from
the proceeds of such transaction, plus (f) any reasonable reserves established by, and
reflected on the financial statements of, the Issuer and its Restricted Subsidiaries in
accordance with GAAP (other than any taxes deducted pursuant to clause (c) above) (x)
associated with the assets that are the subject of such event and (y) retained by the Issuer
or any Restricted Subsidiary to fund contingent liabilities that are directly attributable
to such event and that are reasonably estimated to be payable by the Issuer or any
Restricted Subsidiary within 18 months following the date that such event occurred (other
than in the case of contingent tax liabilities, which shall be reasonably estimated to be
payable within the current or immediately succeeding tax year); provided that any amount by
which such reserves are reduced for reasons other than payment of any such contingent
liabilities shall be considered “Net Available Proceeds” on the date of such reduction.
“Net Cash Proceeds” with respect to any issuance or sale of Capital Stock, means the cash
proceeds of such issuance or sale net of attorneys’ fees, accountants’ fees, underwriters’ or
placement agents’ fees, discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such issuance or sale and net of taxes paid or payable as a result
thereof.
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“Obligations” means, with respect to any Indebtedness, any principal, interest, penalties,
fees, indemnification, reimbursements, costs, expenses, damages and other liabilities payable under
the documentation governing such Indebtedness.
“Officer” means the Chairman of the Board, Chief Executive Officer, the President, the Chief
Financial Officer, the Treasurer, the principal accounting officer, the Secretary or any Assistant
Secretary, any Executive Vice President or any Vice President of the Issuer.
“Officers’ Certificate” means a certificate, in form and substance reasonably satisfactory to
the Trustee, signed by two Officers of the Issuer, at least one of whom shall be the principal
executive officer, the Treasurer, the principal accounting officer, or principal financial officer
of the Issuer, and delivered to the Trustee.
“Opinion of Counsel” means a written opinion from legal counsel acceptable to the Trustee.
Counsel may be an employee of or counsel to the Issuer.
“Permitted Business” means (1) the same or a similar line of business as the Issuer and the
Restricted Subsidiaries are engaged in on the Issue Date as described in the Prospectus Supplement
and (2) such business activities as are complementary, incidental, ancillary or related to, or are
reasonable extensions of, the foregoing. Businesses related to the manufacturing, sale or
distribution of high performance chemical-based products and materials are Permitted Businesses.
“Permitted Investment” means:
(1) any Investment in Temporary Cash Investments, the Notes or the Senior Notes due
2017;
(2) any Investment in the Issuer or any Restricted Subsidiary;
(3) any Investment by the Issuer or any Restricted Subsidiary in a Person, if as a
result of such Investment:
(a) such Person becomes a Restricted Subsidiary; or
(b) such Person is merged or consolidated with or into, or Transfers or conveys
all or substantially all of its assets to, or is liquidated into, the Issuer or a
Guarantor;
(4) receivables owing to the Issuer or any Restricted Subsidiary if created or acquired
in the ordinary course of business and payable or dischargeable in accordance with customary
trade terms; provided that such trade terms may include such concessionary trade terms as
the Issuer or any such Restricted Subsidiary deems reasonable under the circumstances;
(5) loans or advances to employees of the Issuer or any Restricted Subsidiary that are
made in the ordinary course of business of the Issuer or such Restricted Subsidiary, in an
aggregate amount, taken together with all other loans or advances made pursuant to this
clause (5) that are at the time outstanding, not to exceed $15.0 million;
(6) Investments to the extent such Investment represents the non-cash portion of the
consideration received in an Asset Sale as permitted pursuant to Section 4.10 or represents
consideration received from the sale of assets not considered to be an Asset Sale for
purposes of such covenant;
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(7) Investments of cash or Temporary Cash Investments in any Restricted Subsidiary that
is not a Guarantor in the form of Indebtedness that is not subordinated by its terms to any
other obligations;
(8) Investments in securities of trade creditors or customers received pursuant to any
plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such
trade creditors or customers;
(9) Hedging Obligations incurred pursuant to clause (7) of Section 4.09(b);
(10) Additional Investments in an aggregate amount, taken together with all other
Investments made pursuant to this clause (10) that are at that time outstanding, not to
exceed the greater of $100.0 million or 5.0% of Consolidated Net Tangible Assets;
(11) any Investment by the Issuer or a Wholly Owned Subsidiary of the Issuer in a
Securitization Entity; provided that such Investment is in the form of a Purchase Money Note
or an equity interest or interests in accounts receivable generated by the Issuer or any of
its Subsidiaries;
(12) any Indebtedness of the Issuer to any of its Subsidiaries incurred in connection
with the purchase of accounts receivable and related assets by the Issuer from any such
Subsidiary which assets are subsequently conveyed by the Issuer to a Securitization Entity
in a Qualified Securitization Transaction;
(13) any guarantees of Indebtedness permitted by clause (6) of Section 4.09(b);
(14) Investments consisting of take-or-pay obligations contained in supply agreements
relating to products, services or commodities of a type that the Issuer or any of its
Subsidiaries uses or sells in the ordinary course of business;
(15) security deposits required by utility companies and other Persons in a similar
line of business to that of utility companies and governmental authorities that are utility
companies, in each case, made in the ordinary course of business of the Issuer and its
Subsidiaries;
(16) Investments existing on the Issue Date;
(17) advances of payroll payments to employees in the ordinary course of business; and
(18) Investments in respect of Treasury Services Agreements permitted under clause (13)
of the definition of “Permitted Indebtedness.”
The amount of any Permitted Investment made in assets other than cash shall be its Fair Market
Value.
The amount of any Investments outstanding for purposes of clause (10) or (14) above and the
amount of Investments deemed made since October 15, 2009 for purposes of clause (6) of Section
4.07(b) shall be equal to the aggregate amount of Investments made pursuant to such clause reduced
(but not below zero) by the following (to the extent not included in the calculation of
Consolidated Net Income for purposes of determining the Basket and without duplication):
-16-
(a) the aggregate net proceeds (including the Fair Market Value of assets other
than cash) received by the Issuer or any Restricted Subsidiary upon the sale or other
disposition of any Investment made pursuant to such clause;
(b) the net reduction in Investments made pursuant to such clause resulting from
dividends, repayments of loans or advances or other Transfers of assets to the Issuer
or any Restricted Subsidiary;
(c) to the extent that the amount available for Investments under such clause
was reduced as the result of the designation of an Unrestricted Subsidiary, the
portion (proportionate to the Issuer’s equity interest in such Subsidiary) of the
Fair Market Value of the net assets of such Unrestricted Subsidiary at the time such
Unrestricted Subsidiary is redesignated, or liquidated or merged into, a Restricted
Subsidiary; and
(d) the net reduction in Investments made pursuant to such clause resulting
from repayment of letters of credit or the expiration of letters of credit undrawn.
“Permitted Liens” means:
(1) Liens on assets of a Person at the time such Person becomes a Subsidiary or when
such assets are acquired (including by way of merger with such Person); provided that (a)
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 Subsidiary or such
assets were acquired and (b) such Lien does not extend to cover any assets of the Issuer or
any other Restricted Subsidiary;
(2) Liens existing on the Issue Date other than Liens securing Indebtedness incurred
under clause (3) of Section 4.09(b);
(3) Liens imposed by law that are incurred in the ordinary course of business and do
not secure Indebtedness for borrowed money, such as carriers’, warehousemen’s, mechanics’,
landlords’, materialmen’s, employees’, laborers’, employers’, suppliers’, banks’,
repairmen’s and other like Liens, in each case, for sums not yet due or that are being
contested in good faith by appropriate proceedings and that are appropriately reserved for
in accordance with GAAP if required by GAAP;
(4) Liens for taxes, assessments and governmental charges not yet due or payable or
subject to penalties for non-payment or that are being contested in good faith by
appropriate proceedings and that are appropriately reserved for in accordance with GAAP if
required by GAAP;
(5) Liens on assets acquired or constructed after the Issue Date securing Purchase
Money Indebtedness and Capital Lease Obligations; provided that such Liens shall in no event
extend to or cover any assets other than such assets acquired or constructed after the Issue
Date with the proceeds of such Purchase Money Indebtedness or Capital Lease Obligations;
(6) zoning restrictions, easements, rights-of-way, restrictions on the use of real
property, other similar encumbrances on real property incurred in the ordinary course of
business and minor irregularities of title to real property that do not (a) secure
Indebtedness or (b) individually or in the aggregate materially impair the value of the real
property affected thereby or the occupation, use and enjoyment in the ordinary course of
business of the Issuer and the Restricted Subsidiaries at such real property;
-17-
(7) terminable or short-term leases or permits for occupancy, which leases or permits
(a) expressly grant to the Issuer or any Restricted Subsidiary the right to terminate them
at any time on not more than six months’ notice and (b) do not individually or in the
aggregate interfere with the operation of the business of the Issuer or any Restricted
Subsidiary or individually or in the aggregate impair the use (for its intended purpose) or
the value of the property subject thereto;
(8) Liens resulting from operation of law with respect to any judgments, awards or
orders to the extent that such judgments, awards or orders do not cause or constitute an
Event of Default;
(9) bankers’ Liens, rights of setoff and other similar Liens existing solely with
respect to cash and cash equivalents on deposit in one or more accounts maintained by the
Issuer or any Restricted Subsidiary in accordance with the provisions of this Second
Supplemental Indenture, in each case granted in the ordinary course of business in favor of
the bank or banks with which such accounts are maintained, securing amounts owing to such
bank with respect to cash management and operating account arrangements; provided that in no
case shall any such Liens secure (either directly or indirectly) the repayment of any
Indebtedness;
(10) Liens securing Refinancing Indebtedness relating to Permitted Liens of the type
described in clauses (1), (2) and (5) of this definition; provided that such Liens extend
only to the assets securing the Indebtedness being Refinanced;
(11) other Liens securing obligations in an aggregate amount at any time outstanding
not to exceed the greater of (i) $50.0 million or (ii) 3.5% of Consolidated Net Tangible
Assets;
(12) Liens securing Indebtedness incurred under clause (3) of Section 4.09(b);
(13) Liens securing Hedging Obligations of the type described in clause (7) of Section
4.09(b);
(14) Liens securing Indebtedness of Foreign Subsidiaries;
(15) Liens in favor of the Issuer or any Guarantor;
(16) Liens on assets or shares of stock of a Person at the time such Person becomes a
Subsidiary; provided that 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 Subsidiary;
(17) pledges of or Liens on raw materials or on manufactured products as security for
any drafts or bills of exchange drawn in connection with the importation of such raw
materials or manufactured products;
(18) Liens in favor of banks that arise under Article 4 of the UCC on items in
collection and documents relating thereto and proceeds thereof and Liens arising under
Section 2-711 of the UCC;
(19) Liens arising or that may be deemed to arise in favor of a Securitization Entity
arising in connection with a Qualified Securitization Transaction;
(20) pledges or deposits by such Person under workers’ compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in connection with bids,
-18-
tenders, contracts (other than for the payment of Indebtedness) or leases to which such
Person is a party, or deposits to secure public or statutory obligations of such Person or
deposits of cash or United States government bonds to secure surety or appeal bonds to which
such Person is a party, or deposits as security for contested taxes or import duties or for
the payment of rent or deposits as security for the payment of insurance-related obligations
(including, but not limited to, in respect of deductibles, self-insured retention amounts
and premiums and adjustments thereto), in each case incurred in the ordinary course of
business;
(21) Liens in favor of the issuers of surety, performance, judgment, appeal and like
bonds or letters of credit issued in the ordinary course of business;
(22) Liens occurring solely by the filing of a UCC statement (or similar filings),
which filing (A) has not been consented to by the Issuer or any Restricted Subsidiary or (B)
arises solely as a precautionary measure in connection with operating leases or consignment
of goods;
(23) any obligations or duties affecting any property of the Issuer or any Restricted
Subsidiary to any municipality or public authority with respect to any franchise, grant,
license or permit that do not materially impair the use of such property for the purposes
for which it is held;
(24) Liens on any property in favor of domestic or foreign governmental bodies to
secure partial, progress, advance or other payments pursuant to any contract or statute not
yet due and payable;
(25) Liens encumbering deposits made to secure obligations arising from statutory,
regulatory, contractual or warranty requirements;
(26) deposits, pledges or other Liens to secure obligations under purchase or sale
agreements;
(27) Liens in the form of licenses, leases or subleases on any asset incurred by the
Issuer or any Restricted Subsidiary, which licenses, leases or subleases do not interfere,
individually or in the aggregate, in any material respect with the business of the Issuer or
such Subsidiary and is incurred in the ordinary course of business;
(28) Liens on receivables subject to factoring transactions;
(29) Liens on goods or inventory the purchase, shipment or storage price of which is
financed by a documentary letter of credit or banker’s acceptance issued or created for the
account of the Issuer or any Restricted Subsidiary; provided that such Lien secures only the
obligations of the Issuer or such Restricted Subsidiary in respect of such letter of credit
or banker’s acceptance;
(30) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for sale of goods (including under Article 2 of the Uniform Commercial Code)
and Liens that are contractual rights of set-off relating to purchase orders and other
similar agreements entered into by the Issuer or any of its Restricted Subsidiaries;
(31) Liens on insurance policies and the proceeds thereof securing the financing of the
premiums with respect thereto incurred in the ordinary course of business;
-19-
(32) ground leases in respect of real property on which facilities owned or leased by
the Issuer or any of its Restricted Subsidiaries are located;
(33) Liens or other matters disclosed in title policies in connection with the Credit
Facilities;
(34) Liens consisting of an agreement to sell or otherwise dispose of any property in
an Asset Sale permitted under Section 4.10, in each case solely to the extent such Asset
Sale would have been permitted on the date of the creation of such Lien; and
(35) Liens securing Indebtedness permitted to be incurred under clause (19) of Section
4.09(b).
“Person” means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
“Preferred Stock,” as applied to the Capital Stock of any corporation, means Capital Stock of
any class or classes (however designated) which is preferred as to the payment of dividends, or as
to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such corporation.
“principal” of a Note means the principal of the Note plus the premium, if any, payable on the
Note which is due or overdue or is to become due at the relevant time.
“Prospectus Supplement” means the prospectus supplement dated March 2, 2010 used to offer the
Initial Notes to prospective Holders.
“Purchase Money Indebtedness” means Indebtedness:
(1) consisting of the deferred purchase price of assets, conditional sale obligations,
obligations under any title retention agreement, other purchase money obligations, mortgages
and obligations in respect of industrial revenue bonds or similar Indebtedness; and
(2) incurred to finance the acquisition by the Issuer or a Restricted Subsidiary of
such asset, including additions and improvements or the installation, construction or
improvement of such asset;
provided that any Lien arising in connection with any such Indebtedness shall be limited to the
specified asset being financed or, in the case of real property or fixtures, including additions
and improvements, the real property on which such asset is attached; provided further that such
Indebtedness is incurred within 120 days after such acquisition of, or the completion of
construction of, such asset by the Issuer or Restricted Subsidiary.
“Purchase Money Note” means a promissory note evidencing a line of credit, which may be
irrevocable, from, or evidencing other Indebtedness owed to, the Issuer or any of its Subsidiaries
in connection with a Qualified Securitization Transaction, which note shall be repaid from cash
available to the maker of such note, other than amounts required to be established as reserves
pursuant to agreements, amounts paid to investors in respect of interest, principal and other
amounts owing to such investors and amounts paid in connection with the purchase of newly generated
receivables.
-20-
“Qualified Securitization Transaction” means any transaction or series of transactions that
may be entered into by the Issuer, any Restricted Subsidiary or a Securitization Entity pursuant to
which the Issuer or such Restricted Subsidiary or that Securitization Entity may, pursuant to
customary terms, sell, convey or otherwise transfer to, or grant a security interest in for the
benefit of, (1) a Securitization Entity or the Issuer or any Restricted Subsidiary which
subsequently transfers to a Securitization Entity (in the case of a transfer by the Issuer or such
Restricted Subsidiary) and (2) any other Person (in the case of transfer by a Securitization
Entity), any accounts receivable (whether now existing or arising or acquired in the future) of the
Issuer or any Restricted Subsidiary which arose in the ordinary course of business of the Issuer or
such Restricted Subsidiary, and any assets related thereto, including, without limitation, 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 (including contract rights) which are customarily transferred or in respect of
which security interests are customarily granted in connection with asset securitization
transactions involving accounts receivable.
“Qualified Stock” means any Capital Stock of the Issuer other than Disqualified Stock.
“Rating Agencies” means Moody’s and S&P or if Moody’s or S&P or both shall not make a rating
on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as
the case may be, selected by the Issuer which shall be substituted for Moody’s or S&P or both, as
the case may be.
“Refinance” means, in respect of any Indebtedness, to refinance, extend, increase, replace,
renew, refund, repay, prepay, redeem, defease or retire, or to issue other Indebtedness in exchange
or replacement for, such Indebtedness, in part or in whole. “Refinanced” and “Refinancing” shall
have correlative meanings.
“Refinancing Indebtedness” means, with respect to any Indebtedness, Indebtedness incurred to
Refinance such Indebtedness that does not:
(1) result in an increase in the aggregate principal amount of Indebtedness being
Refinanced as of the date of such proposed Refinancing (plus the amount of any premium
required to be paid under the terms of the instrument governing such Indebtedness and plus
the amount of reasonable expenses incurred in connection with such Refinancing) or
(2) create Indebtedness with (a) a Weighted Average Life to Maturity that is less than
the Weighted Average Life to Maturity of the Indebtedness being Refinanced or (b) a final
maturity earlier than the final maturity of the Indebtedness being Refinanced;
provided that (x) if the Indebtedness being Refinanced is subordinated in right of payment by its
terms to the Notes or a Guarantee, then such Refinancing Indebtedness shall be subordinated in
right of payment by its terms to the Notes or such Guarantee at least to the same extent and in the
same manner as the Indebtedness being Refinanced and (y) the obligor(s) on the Refinancing
Indebtedness shall not include any Person that is not the Issuer or a Guarantor or a Person that is
an obligor on the Indebtedness being Refinanced.
-21-
“Responsible Officer” when used with respect to the Trustee shall mean any officer in the
corporate trust department (or any successor group) of the Trustee with direct responsibility for
the administration of this Second Supplemental Indenture and shall also mean, with respect to a
particular corporate trust matter, any other officer to whom the corporate trust matter is referred
at the Corporate Trust Office because of his or her knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the administration of this Second
Supplemental Indenture.
“Restricted Payment” means, with respect to any Person:
(1) any dividend or other distribution declared or paid on any Capital Stock of the
Issuer (other than dividends or distributions payable solely in Qualified Stock);
(2) any payment to purchase, redeem or otherwise acquire or retire for value any
Capital Stock of the Issuer;
(3) any payment to purchase, redeem, defease or otherwise acquire or retire for value
any Subordinated Obligations prior to the Stated Maturity thereof (other than any Purchase
Money Indebtedness incurred after the Issue Date upon the sale, condemnation or casualty of
the related asset); or
(4) the making of an Investment (other than a Permitted Investment), including any
Investment in an Unrestricted Subsidiary (including by the designation of any Subsidiary of
the Issuer as an Unrestricted Subsidiary).
“Restricted Subsidiary” means each Subsidiary of the Issuer that is not an Unrestricted
Subsidiary.
“S&P” means Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc., and any
successor to its rating agency business.
“Securities” has the meaning assigned to such term in the Base Indenture.
“Securitization Entity” means a Wholly Owned Subsidiary of the Issuer (or another Person in
which the Issuer or any Subsidiary of the Issuer makes an Investment and to which the Issuer or any
Subsidiary of the Issuer Transfers accounts receivable):
(1) which is designated by the Board of Directors (as provided below) as a
Securitization Entity and engages in no activities other than in connection with the
financing of accounts receivable;
(2) no portion of the Indebtedness or any other obligations (contingent or otherwise)
of which (a) is guaranteed by the Issuer or any of its Subsidiaries (other than the
Securitization Entity) (excluding guarantees of obligations (other than the principal of,
and interest on, Indebtedness) pursuant to Standard Securitization Undertakings), (b) is
recourse to or obligates the Issuer or any of its Subsidiaries (other than the
Securitization Entity) in any way other than pursuant to Standard Securitization
Undertakings or (c) subjects any asset of the Issuer or any of its Subsidiaries (other than
the Securitization Entity), directly or indirectly, contingently or otherwise, to the
satisfaction thereof, other than pursuant to Standard Securitization Undertakings and other
than any interest in the accounts receivable (whether in the form of an equity interest in
such assets or subordinated indebtedness payable primarily from such financed assets)
retained or acquired by the Issuer or any of its Subsidiaries;
-22-
(3) with which neither the Issuer nor any of its Subsidiaries has any material
contract, agreement, arrangement or understanding other than on terms no less favorable to
the Issuer or such Subsidiary than those that might be obtained at the time from Persons
that are not affiliates of the Issuer, other than fees payable in the ordinary course of
business in connection with servicing receivables of such entity; and
(4) to which neither the Issuer nor any of its Subsidiaries has any obligation to
maintain or preserve such entity’s financial condition or cause such entity to achieve
certain levels of operating results.
Any such designation by the Board of Directors shall be evidenced to the Trustee by filing
with the Trustee a certified copy of the resolution giving effect to such designation and an
officers’ certificate certifying that such designation complied with the foregoing conditions.
“Senior Notes due 2017” means the $400 million in aggregate principal amount of the Issuer’s
83/4% Senior Notes due 2017 issued on October 15, 2009.
“Significant Subsidiary” means (1) any Restricted Subsidiary that is a “significant
subsidiary” of the Issuer on a consolidated basis within the meaning of Regulation S-X promulgated
by the SEC or (2) any Restricted Subsidiary that, when aggregated with all other Restricted
Subsidiaries that are not otherwise Significant Subsidiaries and as to which any event described in
clause (g) or (h) of Section 6.01 has occurred and is continuing, would constitute a Significant
Subsidiary under clause (1) of this definition.
“Standard Securitization Undertakings” means representations, warranties, covenants and
indemnities entered into by the Issuer or any of its Subsidiaries which are reasonably customary in
an accounts receivable securitization transaction.
“Stated Maturity” means, with respect to any security, the date specified in such security as
the fixed date on which the final 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 unless such contingency has occurred).
“Subordinated Obligation” means any Indebtedness of the Issuer or a Guarantor (whether
outstanding on the Issue Date or thereafter incurred) which is subordinated by its terms in right
of payment to the Notes or the Guarantee of the Issuer or such Guarantor.
“Subsidiary” means, in respect of any Person, any corporation, association, partnership or
other business entity of which Voting Stock representing more than 50% of the total voting power of
all outstanding Voting Stock of such Person is at the time owned, directly or indirectly, by:
(1) such Person;
(2) such Person and one or more Subsidiaries of such Person; or
(3) one or more Subsidiaries of such Person.
-23-
“Temporary Cash Investments” means any of the following:
(1) any investment in direct obligations of the United States of America or any agency
thereof or obligations guaranteed by the United States of America or any agency thereof;
(2) investments in time or demand deposit accounts, certificates of deposit and money
market deposits maturing within 180 days of the date of acquisition thereof issued by a bank
or trust company which is organized under the laws of the United States of America, any
State thereof or any foreign country recognized by the United States, and which bank or
trust company has capital, surplus and undivided profits aggregating in excess of
$50,000,000 (or the foreign currency equivalent thereof) and has outstanding debt which is
rated “A-2” or higher by Moody’s, “A” or higher by S&P or the equivalent rating by any other
nationally recognized statistical rating organization (as defined in Rule 436 under the
Securities Act) or any money-market fund sponsored by a registered broker dealer or mutual
fund distributor;
(3) repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in clause (1) above entered into with a bank meeting the
qualifications described in clause (2) above;
(4) investments in commercial paper, maturing not more than 90 days after the date of
acquisition, issued by a corporation (other than an affiliate of the Issuer) organized and
in existence under the laws of the United States of America, any State thereof or the
District of Columbia or any foreign country recognized by the United States of America with
a rating at the time as of which any investment therein is “P-2” or higher from Moody’s,
“A-2” or higher from S&P or the equivalent rating by any other nationally recognized
statistical rating organization (as defined above);
(5) investments in securities with maturities of six months or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory of the United
States of America, or by any political subdivision or taxing authority thereof, and rated at
least “A” by Moody’s or “A” by S&P; and
(6) shares of any money market mutual fund rated at least AAA or the equivalent thereof
by S&P, at least Aaa or the equivalent thereof by Moody’s or any other mutual fund at least
95% of whose assets consist of the type specified in clauses (1) through (5) above.
“Total Assets” means the total assets of the Issuer and its Restricted Subsidiaries on a
consolidated basis, as shown on the most recent balance sheet of the Issuer.
“Transfer” means to sell, assign, transfer, lease (other than pursuant to an operating lease
entered into in the ordinary course of business), convey or otherwise dispose of, including by
consolidation, merger or otherwise, in one transaction or a series of transactions. “Transferred,”
“Transferor” and “Transferee” have correlative meanings.
“Treasury Rate” means, as of any Redemption Date, the yield to maturity as of such Redemption
Date of United States Treasury securities with a constant maturity (as compiled and published in
the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available
at least two Business Days prior to the Redemption Date (or, if such Statistical Release is no
longer published, any publicly available source of similar market data)) most nearly equal to the
period from the Redemption Date to March 15, 2015; provided, however, that if the period from the
Redemption Date to March 15,
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2015 is less than one year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year will be used.
“Treasury Services Agreements” means, with respect to the Issuer or any of its Restricted
Subsidiaries, any direct or indirect liability, contingent or otherwise, of such Person in respect
of cash pooling services, cash management services (including treasury, depository, overdraft
(daylight and temporary), credit or debit card, electronic funds transfer and other cash management
arrangements), including obligations for the payment of fees, interest, charges, expenses,
attorneys’ fees and disbursements in connection therewith to the extent provided for in the
documents evidencing such cash management services.
“UCC” means the Uniform Commercial Code in effect in the applicable jurisdiction.
“Unrestricted Subsidiary” means:
(1) any Subsidiary of the Issuer that at the time of determination shall have been
designated an Unrestricted Subsidiary by the Issuer; and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Issuer may designate any Subsidiary of the Issuer (including any newly acquired or newly formed
Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns
any Capital Stock or Indebtedness of, or holds any Lien on any assets of, the Issuer or any other
Subsidiary of the Issuer that is not a Subsidiary of the Subsidiary to be so designated; provided
that:
(1) no Default has occurred and is continuing or would occur as a consequence thereof;
(2) (x) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to
the Coverage Ratio Exception or (y) the Consolidated Coverage Ratio of the Issuer and the
Restricted Subsidiaries is equal to or greater than immediately prior to such designation;
and
(3) either (x) the Subsidiary to be so designated has total assets of $1,000 or less or
(y) if such Subsidiary has assets greater than $1,000, such designation would be permitted
under Section 4.07 (treating the Fair Market Value of the Issuer’s proportionate interest in
the net worth of such Subsidiary on such date calculated in accordance with GAAP as the
amount of the Investment).
The Issuer may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that:
(1) no Default has occurred and is continuing; and
(2) Indebtedness of such Unrestricted Subsidiary and all Liens on any asset of such
Unrestricted Subsidiary outstanding immediately following such redesignation would, if
incurred at such time, be permitted to be incurred under this Second Supplemental Indenture.
Any designation of a Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary, as the
case may be, that involves total assets of $20.0 million or more shall be approved by the Board of
Directors.
“U.S. Government Obligations” means direct obligations (or certificates representing an
ownership interest in such obligations) of the United States of America (including any agency or
instrumentality
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thereof) for the payment of which the full faith and credit of the United States of America is
pledged and which are not callable at the issuer’s option.
“Voting Stock” of a 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.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the
number of years obtained by dividing:
(1) then outstanding aggregate principal amount of such Indebtedness into
(2) the sum of the total of the products obtained by multiplying (x) the amount of each
then remaining installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (y) the number of
years (calculated to the nearest one-twelfth) that will elapse between such date and the
making of such payment.
“Wholly Owned Subsidiary” means a Restricted Subsidiary all the Capital Stock of which (other
than directors’ qualifying shares) is owned by the Issuer and/or one or more Wholly Owned
Subsidiaries.
SECTION 1.03. Other Definitions.
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Term |
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Defined in Section |
Affiliate Transaction
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4.11 |
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Authentication Order
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2.02 |
(d) |
Base Indenture
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Preamble
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Basket
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4.07 |
(a) |
Change of Control Offer
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4.13 |
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Covenant Defeasance
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8.03 |
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Covenant Suspension
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4.16 |
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Coverage Ratio Exception
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4.09 |
(a) |
DTC
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2.03 |
(b) |
Event of Default
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6.01 |
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Excess Proceeds
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4.10 |
(b) |
Second Supplemental Indenture
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Preamble
|
Guaranteed Obligations
|
|
|
11.01 |
|
Indenture
|
|
Preamble
|
Issuer
|
|
Preamble
|
Issuer Surviving Entity
|
|
|
5.01 |
(a) |
Legal Defeasance
|
|
|
8.02 |
|
Net Proceeds Deficiency
|
|
|
4.10 |
(c) |
Net Proceeds Offer
|
|
|
4.10 |
(c) |
Notes
|
|
Preamble
|
Offer Amount
|
|
|
3.09 |
(b) |
Offer Period
|
|
|
3.09 |
(b) |
Offered Price
|
|
|
4.10 |
(c) |
Offer to Purchase
|
|
|
3.09 |
(a) |
Paying Agent
|
|
|
2.03 |
(a) |
Payment Default
|
|
|
6.01 |
(e) |
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|
|
|
|
|
Term |
|
Defined in Section |
Permitted Indebtedness
|
|
|
4.09 |
(b) |
Purchase Date
|
|
|
3.09 |
(b) |
Redemption Date
|
|
|
2.08 |
(d) |
Registrar
|
|
|
2.03 |
(a) |
Required Filing Dates
|
|
|
4.03 |
(a) |
Reversion Date
|
|
|
4.16 |
|
Suspended Covenants
|
|
|
4.16 |
|
Suspension Period
|
|
|
4.16 |
|
Trustee
|
|
Preamble, 8.05
|
SECTION 1.04. Incorporation by Reference of Trust Indenture Act.
(a) Whenever this Second Supplemental Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part of this Second Supplemental
Indenture.
(b) The following Trust Indenture Act terms used in this Second Supplemental Indenture have
the following meanings:
“indenture securities” means the Notes and the Guarantees;
“indenture security holder” means a Holder;
“indenture to be qualified” means this Second Supplemental Indenture;
“indenture trustee” or “institutional trustee” means the Trustee; and
“obligor” on the Notes means the Issuer and any successor obligor upon the Notes.
(c) All other terms used in this Second Supplemental Indenture that are defined by the Trust
Indenture Act, defined by Trust Indenture Act reference to another statute or defined by SEC rule
under the Trust Indenture Act and not otherwise defined herein have the meanings so assigned to
them either in the Trust Indenture Act, by another statute or SEC rule, as applicable.
SECTION 1.05. Rules of Construction.
(a) Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined herein has the meaning assigned to it in
accordance with GAAP;
(iii) “or” is not exclusive;
(iv) words in the singular include the plural, and in the plural include the singular;
(v) all references in this instrument to “Articles,” “Sections” and other subdivisions
are to the designated Articles, Sections and subdivisions of this instrument as originally
executed;
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(vi) the words “herein,” “hereof” and “hereunder” and other words of similar import
refer to this Second Supplemental Indenture as a whole and not to any particular Article,
Section or other subdivision.
(vii) “including” means “including without limitation;”
(viii) provisions apply to successive events and transactions; and
(ix) references to sections of or rules under the Securities Act, the Exchange Act or
the Trust Indenture Act shall be deemed to include substitute, replacement or successor
sections or rules adopted by the SEC from time to time thereunder.
ARTICLE 2
THE NOTES
Pursuant to Section 201 of the Base Indenture, the provisions of this Article 2 establish the
form of the Notes under this Second Supplemental Indenture, and to the extent that any provisions
of this Article 2 are duplicative, or in contradiction with, the Base Indenture, the provisions of
this Article 2 shall govern the Notes.
SECTION 2.01. Form and Dating.
(a) General. The Notes and the Trustee’s certificate of authentication shall be
substantially in the form of Exhibit A hereto, which is hereby incorporated in and
expressly made part of this Second Supplemental Indenture. The Notes may have notations, legends
or endorsements required by law, stock exchange rule or usage in addition to those set forth on
Exhibit A. Each Note shall be dated the date of its authentication. The Notes shall be in
minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. The terms and
provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this
Second Supplemental Indenture and the Issuer, the Guarantors and the Trustee, by their execution
and delivery of this Second Supplemental Indenture, expressly agree to such terms and provisions
and to be bound thereby. However, to the extent any provision of any Note conflicts with the
express provisions of this Second Supplemental Indenture, the provisions of this Second
Supplemental Indenture shall govern and be controlling.
(b) Book-Entry Provisions. This Section 2.01(b) shall only apply to Global Notes
deposited with the Trustee, as custodian for the Depositary. Participants and indirect
participants shall have no rights under this Second Supplemental Indenture with respect to any
Global Note held on their behalf by the Depositary or by the Trustee as the custodian for the
Depositary or under such Global Note, and the Depositary shall be treated by the Issuer, the
Trustee and any agent of the Issuer or the Trustee as the absolute owner of such Global Note for
all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer,
the Trustee or any agent of the Issuer or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or impair, as between the
Depositary and its participants or indirect participants, the Applicable Procedures or the
operation of customary practices of the Depositary governing the exercise of the rights of a holder
of a beneficial interest in any Global Note.
(c) Certificated Notes. Except as otherwise provided herein, owners of beneficial
interests in Global Notes will not be entitled to receive physical delivery of certificated Notes.
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For greater certainty, the provisions of this Section 2.01(c) are subject to the requirements
relating to notations, legends or endorsements on Notes required by law, stock exchange rule, or
agreements to which any the Issuer is subject, if any.
SECTION 2.02. Execution and Authentication.
(a) One Officer shall sign the Notes for the Issuer by manual or facsimile signature.
(b) If an Officer whose signature is on a Note no longer holds that office at the time a Note
is authenticated, the Note shall nevertheless be valid.
(c) A Note shall not be valid until authenticated by the manual signature of the Trustee. The
signature shall be conclusive evidence that the Note has been authenticated under this Second
Supplemental Indenture.
(d) The Trustee shall, upon a written order of the Issuer signed by one Officer (an
“Authentication Order”), authenticate Notes for original issue.
(e) The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate
Notes. Unless otherwise provided in the appointment, an authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Second Supplemental Indenture to
authentication by the Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with Holders or an Affiliate of the Issuer or any of their
respective Subsidiaries.
SECTION 2.03. Registrar and Paying Agent.
(a) The Issuer shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (“Registrar”) and an office or agency where Notes may be
presented for payment (“Paying Agent”). The Registrar shall keep a register of the Notes and of
their transfer and exchange. The Issuer may appoint one or more co-registrars and one or more
additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying
Agent” includes any additional paying agent. The Issuer may change any Paying Agent or Registrar
without notice to any Holder. The Issuer shall notify the Trustee in writing of the name and
address of any Agent not a party to this Second Supplemental Indenture. If the Issuer fails to
appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such.
The Issuer or any of its Subsidiaries may act as Paying Agent or Registrar.
(b) The Issuer initially appoints The Depository Trust Issuer (“DTC”) to act as Depositary
with respect to the Global Notes.
(c) The Issuer initially appoints the Trustee to act as the Registrar and Paying Agent and to
act as Custodian with respect to the Global Notes, and the Trustee hereby initially agrees so to
act.
SECTION 2.04. Paying Agent to Hold Money in Trust.
The Issuer shall require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent shall hold in trust for the benefit of the Holders or the Trustee all money held by
the Paying Agent for the payment of principal, premium, if any, or interest on the Notes, and shall
notify the Trustee of any default by the Issuer in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The
Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon
payment over to the Trustee, the Paying Agent (if other than the Issuer or a Subsidiary) shall have
no further liability for the money. If the
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Issuer or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Issuer, the Trustee shall serve as Paying Agent for the
Notes.
SECTION 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders and shall otherwise comply with
Trust Indenture Act Section 312(a). If the Trustee is not the Registrar, the Issuer shall furnish
to the Trustee at least seven Business Days before each Interest Payment Date and at such other
times as the Trustee may request in writing, a list in such form and as of such date or such
shorter time as the Trustee may allow, as the Trustee may reasonably require of the names and
addresses of the Holders, and the Issuer shall otherwise comply with Trust Indenture Act Section
312(a).
Holders may communicate pursuant to Trust Indenture Act Section 312(b) with other Holders with
respect to their rights under this Second Supplemental Indenture or under the Notes. The Issuer,
the Trustee, the Registrar and any other Person shall have the protection of Trust Indenture Act
Section 312(c).
SECTION 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Certificated Notes. When certificated Notes are
presented to the Registrar with a request:
(1) to register the transfer of such certificated Notes; or
(2) to exchange such certificated Notes for an equal principal amount of certificated
Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if its reasonable
requirements for such transaction are met; provided, however, that the certificated Notes
surrendered for transfer or exchange shall be duly endorsed or accompanied by a written instrument
of transfer in form reasonably satisfactory to the Issuer and the Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing;
(b) Restrictions on Transfer of a Certificated Note for a Beneficial Interest in a Global
Note. Subject to certain conditions, the Notes represented by the global securities will be
exchangeable for certificated Notes in definitive form of like tenor as such Notes if (1) the
Depositary notifies the Issuer that it is unwilling or unable to continue as Depositary for the
Global Note and a successor is not promptly appointed or if at any time the Depositary ceases to be
a clearing agency registered under the Exchange Act or (2) the Issuer in its discretion at any time
determines not to have all of the Notes represented by the global securities.
Any Notes that are exchangeable pursuant to the preceding sentence will be exchanged for
certificated Notes issuable in authorized denominations and registered in such names as the
Depositary shall direct.
(c) Transfer and Exchange of Global Notes. Subject to Section 2.06(e), the Global
Note is not exchangeable, except for the Global Note of the same aggregate denominations to be
registered in the name of the Depositary or its nominee. The transfer and exchange of Global Notes
or beneficial interests therein shall be effected through the Depositary, in accordance with this
Second Supplemental Indenture
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(including applicable restrictions on transfer set forth herein, if any) and the procedures of
the Depositary therefor.
(d) Restrictions on Transfer and Exchange of Global Notes. Notwithstanding any other
provisions of this Second Supplemental Indenture (other than the provisions set forth in subsection
(e) of this Section 2.06), a Global Note may not be transferred as a whole except by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary.
(e) Authentication in Absence of Depositary. If at any time:
(1) the Issuer delivers to the Trustee notice from the Depositary that it is unwilling
or unable to continue to act as Depositary or that it is no longer a clearing agency
registered under the Exchange Act and, in either case, a successor Depositary is not
appointed by the Issuer within 120 days after the date of such notice from the Depositary;
(2) the Issuer in its sole discretion determines that the Global Notes (in whole but
not in part) should be exchanged for certificated Notes and delivers a written notice to
such effect to the Trustee; or
(3) there has occurred and is continuing a Default or Event of Default with respect to
the Notes and beneficial owners holding interests representing an aggregate principal amount
of at least 51% of such Notes represented by Global Notes advise the Trustee in writing that
the continuation of a book-entry system through the Depositary is no longer in such owner’s
best interests.
then the Issuer will execute, and the Trustee, upon receipt of an Officers’ Certificate requesting
the authentication and delivery of certificated Notes to the Persons designated by the Issuer, will
authenticate and deliver certificated Notes, in an aggregate principal amount equal to the
principal amount of Global Notes, in exchange for such Global Notes.
(f) Cancellation and/or Adjustment of Global Note. At such time as all beneficial
interests in a Global Note have either been exchanged for certificated Notes, redeemed, repurchased
or canceled, such Global Note shall be returned to the Depositary for cancellation or retained and
canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a
Global Note is exchanged for certificated Notes, redeemed, repurchased or canceled, the principal
amount of Notes represented by such Global Note shall be reduced and an adjustment shall be made on
the books and records of the Trustee (if it is then the Custodian for such Global Note) with
respect to such Global Note, by the Trustee or the Custodian, to reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of Notes.
(1) To permit registrations of transfers and exchanges, the Issuer shall execute and the
Trustee shall authenticate certificated Notes and Global Notes at the Registrar’s request.
(2) No service charge shall be made for any registration of transfer or exchange, but the
Issuer may require payment of a sum sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith.
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(3) The Registrar shall not be required to register the transfer of or exchange of (a) any
Note selected for redemption in whole or in part pursuant to Article 3, except the unredeemed
portion of any Note being redeemed in part, or (b) any Note for a period beginning 15 Business Days
before the mailing of a notice of an offer to repurchase or redeem Notes or 15 Business Days before
an Interest Payment Date (whether or not an Interest Payment Date or other date determined for the
payment of interest), and ending on such mailing date or Interest Payment Date, as the case may be.
(4) Prior to the due presentation for registration of transfer of any Note, the Issuer, the
Guarantors, the Trustee, the Paying Agent or the Registrar may deem and treat the person in whose
name a Note is registered as the absolute owner of such Note for the purpose of receiving payment
of principal of and interest on such Note and for all other purposes whatsoever, whether or not
such Note is overdue, and none of the Issuer, the Trustee, the Paying Agent or the Registrar shall
be affected by notice to the contrary.
(5) All Notes issued upon any transfer or exchange pursuant to the terms of this Second
Supplemental Indenture shall evidence the same debt and shall be entitled to the same benefits
under this Second Supplemental Indenture as the Notes surrendered upon such transfer or exchange.
(h) No Obligation of the Trustee.
(1) The Trustee shall have no responsibility or obligation to any beneficial owner of a Global
Note, a member of, or a participant in the Depositary or other Person with respect to the accuracy
of the records of the Depositary or its nominee or of any participant or member thereof, with
respect to any ownership interest in the Notes or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depositary) of any notice (including any
notice of redemption) or the payment of any amount, under or with respect to such Notes. All
notices and communications to be given to the Holders and all payments to be made to Holders under
the Notes shall be given or made only to or upon the order of the registered Holders (which shall
be the Depositary or its nominee in the case of a Global Note). The rights of beneficial owners in
any Global Note in global form shall be exercised only through the Depositary subject to the
applicable rules and procedures of the Depositary. The Trustee may rely and shall be fully
protected in relying upon information furnished by the Depositary with respect to its members,
participants and any beneficial owners.
(2) The Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Second Supplemental Indenture or
under applicable law with respect to any transfer of any interest in any Note (including, without
limitation, any transfers between or among Depositary participants, members or beneficial owners in
any Global Note) other than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly required by, the terms of
this Second Supplemental Indenture, and to examine the same to determine substantial compliance as
to form with the express requirements hereof.
SECTION 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Issuer and the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any Note, the Issuer shall issue
and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if
the Trustee’s requirements are met. If required by the Trustee or the Issuer, an indemnity bond
must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Issuer to
protect the Issuer, the Trustee, any Agent and any authenticating agent from any loss that any of
them may suffer if a Note is replaced. The Issuer may charge for its expenses in replacing a Note.
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In case any such mutilated, destroyed, lost or stolen Note had become or is about to become
due and payable, the Issuer, in its discretion, may, instead of issuing a new Note, pay such Note,
upon satisfaction of the conditions set forth in the preceding paragraph.
Every replacement Note is an additional obligation of the Issuer and shall be entitled to all
of the benefits of this Second Supplemental Indenture equally and proportionately with all other
Notes duly issued hereunder.
The provisions of this Section 2.07 are exclusive and shall preclude (to the extent lawful)
all other rights and remedies of any Holder with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Note.
SECTION 2.08. Outstanding Notes.
(a) The Notes outstanding at any time are all the Notes authenticated by the Trustee except
for those cancelled by it, those delivered to it for cancellation, those reductions in the interest
in a Global Note effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.08 as not outstanding. Except as set forth in Section 3.09, a Note
does not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note;
however, Notes held by the Issuer or a Subsidiary of the Issuer shall not be deemed to be
outstanding for purposes of Section 2.08(b).
(b) If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.
(c) If the principal amount of any Note is considered paid under Section 4.01, it ceases to be
outstanding and interest on it ceases to accrue.
(d) If the Paying Agent (other than the Issuer, a Subsidiary or an Affiliate of any thereof)
segregates and holds in trust, in accordance with this Second Supplemental Indenture, on a date of
redemption (a “Redemption Date”) or maturity date, money sufficient to pay all principal, premium,
if any, and interest payable on that date with respect to the Notes payable on that date, then on
and after that date such Notes shall be deemed to be no longer outstanding and shall cease to
accrue interest.
SECTION 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, amendment, supplement, waiver or consent, Notes owned by the Issuer, or by any
Affiliate of the Issuer, shall be considered as though not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in relying on any such direction,
amendment, supplement, waiver or consent, only Notes that the Trustee knows are so owned shall be
so disregarded.
SECTION 2.10. Temporary Notes.
Until certificates representing Notes are ready for delivery, the Issuer may prepare and the
Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary
Notes shall be substantially in the form of certificated Notes but may have variations that the
Issuer considers appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate
certificated Notes in exchange for temporary Notes.
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Holders of temporary Notes shall be entitled to all of the benefits of this Second
Supplemental Indenture.
SECTION 2.11. Cancellation.
The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee, or at the direction of the Trustee, the Registrar or
the Paying Agent, upon direction by the Issuer and no one else shall cancel all Notes surrendered
for registration of transfer, exchange, payment, replacement or cancellation and shall dispose of
such cancelled Notes in accordance with its customary procedures (subject to the record retention
requirements of the Exchange Act). Certification of the disposal of all cancelled Notes shall be
delivered to the Issuer from time to time upon written request. The Issuer may not issue new Notes
to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.
SECTION 2.12. CUSIP or ISIN Numbers.
The Issuer in issuing the Notes may use “CUSIP” or “ISIN” numbers (if then generally in use),
and, if so, the Trustee shall use “CUSIP” or “ISIN” numbers in notices of redemption as a
convenience to Holders; provided, however, that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Notes or as contained in any
notice of a redemption and that reliance may be placed only on the other identification numbers
printed on the Notes, and any such redemption shall not be affected by any defect in or omission of
such numbers. The Issuer will promptly notify the Trustee of any change in the “CUSIP” or “ISIN”
numbers.
SECTION 2.13. Additional Notes.
The Issuer shall be entitled, subject to its compliance with Section 4.09, to issue Additional
Notes under this Second Supplemental Indenture in an unlimited aggregate principal amount which
shall have identical terms as the Initial Notes, other than with respect to the date of issuance
and issue price and first payment of interest. The Initial Notes and any Additional Notes shall be
treated as a single class for all purposes under this Second Supplemental Indenture, including,
without limitation, waivers, amendments, redemptions and offers to purchase.
With respect to any Additional Notes, the Issuer shall set forth in a resolution of its Board
of Directors and an Officers’ Certificate, a copy of each which shall be delivered to the Trustee,
the following information:
(a) the aggregate principal amount of such Additional Notes to be authenticated and
delivered pursuant to this Second Supplemental Indenture; and
(b) the issue price, the issue date and the CUSIP number(s) of such Additional Notes.
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ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01. Notices to Trustee.
If the Issuer elects to redeem Notes pursuant to the optional redemption provisions of Section
3.07 of this Second Supplemental Indenture and paragraph 5 of the Notes, it shall furnish to the
Trustee an Officers’ Certificate setting forth (i) the Section of this Second Supplemental
Indenture pursuant to which the redemption shall occur, (ii) the Redemption Date, (iii) the
principal amount of Notes to be redeemed, and (iv) the redemption price. If the Issuer elects to
redeem Notes pursuant to the provisions of Section 3.07 of this Second Supplemental Indenture and
paragraph 5 of the Notes, it shall furnish such Officers’ Certificate to the Trustee at least 30
days but not more than 60 days before a Redemption Date unless a shorter notice shall be reasonably
satisfactory to the Trustee. Each Officers’ Certificate shall be accompanied by an Opinion of
Counsel from the Issuer to the effect that such redemption will comply with the conditions herein.
Any such notice may be cancelled at any time prior to notice of such redemption being mailed to any
Holder and shall, therefore, be void and of no effect.
SECTION 3.02. Selection of Notes to be Redeemed.
If less than all of the Notes are to be redeemed or purchased in an offer to purchase at any
time, the Trustee shall select the Notes to be redeemed or purchased on a pro rata basis, by lot or
by such method as the Trustee shall deem fair and appropriate. In the event of partial redemption,
the particular Notes to be redeemed shall be selected, unless otherwise provided herein, not less
than 30 nor more than 60 days prior to the Redemption Date by the Trustee from the outstanding
Notes not previously called for redemption.
The Trustee shall promptly notify the Issuer in writing of the Notes selected for redemption
and, in the case of any Note selected for partial redemption, the principal amount thereof to be
redeemed. No Notes of principal amount of $2,000 or less shall be redeemed in part, except that if
all of the Notes of a Holder are to be redeemed, the entire outstanding amount of Notes held by
such Holder shall be redeemed. Except as provided in the preceding sentence, provisions of this
Second Supplemental Indenture that apply to Notes called for redemption also apply to portions of
Notes called for redemption.
SECTION 3.03. Notice of Redemption.
Subject to the provisions of Section 3.09, at least 30 days but not more than 60 days before a
Redemption Date, the Issuer shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed (including the CUSIP or ISIN number) and
shall state:
(a) the Redemption Date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the principal amount of such
Note to be redeemed and that, after the Redemption Date upon surrender of such Note, a new
Note or Notes in principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Note;
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(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price;
(f) that, unless the Issuer defaults in making such redemption payment, interest on
Notes called for redemption ceases to accrue on and after the Redemption Date;
(g) the paragraph of the Notes and Section of this Second Supplemental Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy of the CUSIP
number, if any, listed in such notice or printed on the Notes.
At the Issuer’s request, the Trustee shall give the notice of redemption in the Issuer’s name
and at its expense; provided, however, that the Issuer gives the Trustee at least 3 Business Days
prior notice of such request. Any redemption and notice thereof may, in the Issuer’s discretion,
be subject to the satisfaction of one or more conditions precedent.
SECTION 3.04. Effect of Notice Upon Redemption.
Once notice of redemption is mailed in accordance with Section 3.03, Notes called for
redemption become irrevocably due and payable on the Redemption Date at the redemption price stated
in the notice. Upon surrender to the Paying Agent, such Notes shall be paid at the redemption
price stated in the notice, plus accrued interest to the Redemption Date (subject to the right of
Holders of record on the relevant Regular Record Date to receive interest due on the related
Interest Payment Date). Failure to give notice or any defect in the notice to any Holder shall not
affect the validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price.
On or before 11:00 a.m. Eastern Time on any Redemption Date, the Issuer shall deposit with the
Trustee or with the Paying Agent money sufficient to pay the redemption price of and accrued
interest on all Notes (or portions of Notes) to be redeemed on that date. The Trustee or the
Paying Agent shall promptly return to the Issuer any money deposited with the Trustee or the Paying
Agent by the Issuer in excess of the amounts necessary to pay the redemption price of, and accrued
interest on, all Notes to be redeemed.
If the Issuer complies with the provisions of the preceding paragraph, on and after the
Redemption Date, interest shall cease to accrue on the Notes or the portions of Notes called for
redemption, whether or not such Notes are presented for payment. If a Note is redeemed on or after
a Regular Record Date but on or prior to the related Interest Payment Date, then any accrued and
unpaid interest shall be paid to the Person in whose name such Note was registered at the close of
business on such Regular Record Date. If any Note called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Issuer to comply with the preceding
paragraph, interest shall be paid on the unpaid principal from the Redemption Date until such
principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in
each case at the rate provided in the Notes and in Section 4.01.
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SECTION 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Issuer shall issue and, upon the
Issuer’s written request, the Trustee shall authenticate for the Holder at the expense of the
Issuer a new Note equal in principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.07. Optional Redemption.
Except as set forth in subparagraphs (a) and (c) below, the Notes are not redeemable before
March 15, 2015.
(a) At any time prior to March 15, 2015, the Issuer may redeem all or part of the Notes
(which includes Additional Notes, if any), at a redemption price equal to 100% of the
principal amount of Notes redeemed plus the Applicable Premium as of, and accrued and unpaid
interest, if any, to, but not including, the Redemption Date, subject to the rights of
Holders of Notes on the relevant record date to receive interest due on the relevant
interest payment date.
(b) On or after March 15, 2015, the Issuer at its option may redeem all or a part of
the Notes, at the redemption prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid interest thereon, if any, to the applicable Redemption Date
(subject to the rights of Holders of Notes of record on the relevant record date to receive
interest due on the relevant interest payment date), if redeemed during the twelve-month
period beginning on March 15 of the years indicated below:
|
|
|
|
|
Year |
|
Percentage |
2015 |
|
|
103.938 |
% |
2016 |
|
|
102.625 |
% |
2017 |
|
|
101.313 |
% |
2018 and thereafter |
|
|
100.000 |
% |
(c) Notwithstanding the provisions of subparagraphs (a) and (b) of this Section 3.07,
at any time on or prior to March 15, 2013, the Issuer may at its option on any one or more
occasions redeem up to 35% of the aggregate principal amount of Notes issued under this
Second Supplemental Indenture (which includes the Additional Notes, if any) at a redemption
price of 107.875% of the principal amount thereof, plus accrued and unpaid interest, if any,
to, but not including, the Redemption Date, with the Net Cash Proceeds of one or more Equity
Offerings; provided, that:
(1) at least 65% of the aggregate principal amount of Notes issued under this
Second Supplemental Indenture (which includes the Additional Notes, if any) remains
outstanding immediately after the occurrence of such redemption (excluding Notes
held, by the Issuer and its Subsidiaries); and
(2) the redemption must occur within 90 days of the date of the closing of
such Equity Offering.
(d) Any prepayment pursuant to this Section 3.07 shall be made pursuant to the
provisions of Sections 3.01 through 3.06.
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SECTION 3.08. Mandatory Redemption.
Except as set forth in Sections 4.10 and 4.13, the Issuer shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.
SECTION 3.09. Offer to Purchase.
(a) In the event that, pursuant to Section 4.10 or Section 4.13, the Issuer shall be required
to commence an offer to all Holders to purchase Notes and, at the Issuer’s option, holders of other
pari passu Indebtedness (each an “Offer to Purchase”), it shall follow the procedures specified
below.
(b) The Offer to Purchase shall remain open for a period of 20 Business Days following its
commencement and no longer, except to the extent that a longer period is required by applicable law
(the “Offer Period”). No later than five Business Days after the termination of the Offer Period
(the “Purchase Date”), the Issuer shall purchase the principal amount of Notes required to be
purchased pursuant to Section 4.10 or Section 4.13 (the “Offer Amount”) or, if less than the Offer
Amount has been tendered, all Notes tendered in response to the Offer to Purchase. Payment for any
Notes so purchased shall be made in the same manner as interest payments are made.
If the Purchase Date is on or after a Regular Record Date and on or before the related
Interest Payment Date, any accrued and unpaid interest shall be paid to the Person in whose name a
Note is registered at the close of business on such Regular Record Date, and no additional interest
shall be payable to Holders who tender Notes pursuant to the Offer to Purchase.
Upon the commencement of the Offer to Purchase, the Issuer shall send, by first class mail, a
notice to each of the Holders, which shall not be later than 10 days after the Issuer becomes
obligated to make an Offer to Purchase with a copy to the Trustee. The notice shall contain all
instructions and materials necessary to enable such Holders to tender Notes pursuant to the Offer
to Purchase. The Offer to Purchase shall be made to all Holders. The notice, which shall govern
the terms of the Offer to Purchase, shall state:
(1) that the Offer to Purchase is being made pursuant to this Section 3.09 and Section
4.10 or 4.13, as the case may be, and the length of time the Offer to Purchase shall remain
open;
(2) that either (a) in the case of a Change of Control Offer, a Change of Control has
occurred and that such noteholder has the right to require the Issuer to purchase such
holder’s Notes at a purchase price in cash equal to 101% of the principal amount thereof or
(b) in the case of a Net Proceeds Offer, there are Excess Proceeds and such noteholder has
the right to require the Issuer to purchase such holder’s Notes at the Offered Price, in
each case, 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 on an interest
payment date that is on or prior to the date fixed for purchase);
(3) the Purchase Date (which shall be no earlier than 30 days nor later than 60 days
from the date such notice is mailed);
(4) the Offer Amount (including information as to any other pari passu Indebtedness
included in the Offer to Purchase), the purchase price and the Purchase Date;
(5) that any Note not tendered or accepted for payment shall continue to accrete or
accrue interest;
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(6) that, unless the Issuer defaults in making such payment, any Note accepted for
payment pursuant to the Offer to Purchase shall cease to accrue interest after the Purchase
Date;
(7) that Holders electing to have a Note purchased pursuant to an Offer to Purchase may
only elect to have all of such Note purchased and may not elect to have only a portion of
such Note purchased;
(8) that Holders electing to have a Note purchased pursuant to any Offer to Purchase
shall be required to surrender the Note, with the form entitled “Option of Holder to Elect
Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the
Issuer, a Depositary, if appointed by the Issuer, or a Paying Agent at the address specified
in the notice at least three days before the Purchase Date;
(9) that Holders shall be entitled to withdraw their election if the Issuer, the
Depositary or the Paying Agent, as the case may be, receives, not later than the expiration
of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such Note purchased;
(10) that, in the case of an Offer to Purchase, if the aggregate principal amount of
Notes tendered by Holders into an Offer to Purchase exceeds the Offer Amount, the Trustee
shall select the Notes to be purchased (i) if the Notes are listed, in compliance with the
requirements of the principal national securities exchange on which the Notes are then
listed or (ii) if the Notes are not so listed, on a pro rata basis, by lot or by such method
as the Trustee shall deem fair and appropriate (with such adjustments as may be deemed
appropriate by the Issuer so that only Notes in denominations of $2,000, or integral
multiples of $1,000, shall be purchased); and
(11) that Holders whose Notes were purchased only in part shall be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer).
On or before the Purchase Date, the Issuer shall, to the extent lawful, accept for payment, in
accordance with clause (10) above, the Offer Amount of Notes or portions thereof tendered pursuant
to the Offer to Purchase, or if less than the Offer Amount has been tendered, all Notes tendered,
and shall deliver to the Trustee an Officers’ Certificate stating that such Notes or portions
thereof were accepted for payment by the Issuer in accordance with the terms of this Section 3.09.
The Issuer, the Depositary or the Paying Agent, as the case may be, shall promptly (but in any case
not later than five days after the Purchase Date) mail or deliver to each tendering Holder an
amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Issuer
for purchase, and the Issuer shall promptly issue a new Note, and the Trustee, upon written request
from the Issuer shall authenticate and mail or deliver such new Note to such Holder, in a principal
amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be
promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer shall publicly
announce the results of the Offer to Purchase on the Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase pursuant to this
Section 3.09 shall be made pursuant to the provisions of Section 3.01 through 3.06.
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ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Notes.
The Issuer shall pay or cause to be paid the principal of, premium, if any, interest on, the
Notes on the dates and in the manner provided in the Notes and in this Second Supplemental
Indenture. Principal, premium, if any, and interest shall be considered paid on the date due if
the Paying Agent, if other than the Issuer or a Subsidiary thereof, holds as of 11:00 a.m. Eastern
Time on the due date money deposited by the Issuer in immediately available funds and designated
for and sufficient to pay all principal, premium, if any, and interest then due and the Paying
Agent is not prohibited from paying such money to the Holders on that date. Interest shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 4.02. Maintenance of Office or Agency.
(a) The Issuer shall maintain an office or agency in the Borough of Manhattan, City of
New
York (which unless otherwise provided will be the office of the Trustee) where Notes may be
presented or surrendered for registration of transfer or for exchange and where notices and demands
to or upon the Issuer in respect of the Notes and this Second Supplemental Indenture may be served.
The Issuer 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 Issuer 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 Issuer hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
(b) The Issuer 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. The Issuer 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 Issuer hereby designates the Corporate Trust Office of the Trustee, as one such
office, drop facility or agency of the Issuer in accordance with Section 4.02(a).
SECTION 4.03. Reports.
(a) Whether or not the Issuer is then subject to Section 13(a) or 15(d) of the Exchange Act,
the Issuer will electronically file with the Commission, so long as the Notes are outstanding, the
annual reports, quarterly reports and other periodic reports that the Issuer would be required to
file with the Commission pursuant to Section 13(a) or 15(d) if the Issuer 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 the Issuer would be required so to file such documents if the Issuer were
so subject, unless, in any case, if such filings are not then permitted by the Commission.
(b) 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 Issuer will, within 15 days
of each Required Filing Date, transmit by mail to noteholders, as their names and addresses appear
in the Note register, without cost to such noteholders, and file with the Trustee copies of, the
annual reports, quarterly reports and other periodic reports that the Issuer would be required to
file with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act if the Issuer were
subject to such Section 13(a) or 15(d),
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and, promptly upon written request, supply copies of such documents to any prospective holder
or beneficial owner at the Issuer’s cost.
(c) So long as the rules and regulations of the Commission would allow (including pursuant to
any applicable exemptive relief) the Issuer to file periodic reports or information (if they were
required by the Exchange Act to file such reports or information) on a consolidated or combined
basis, the Issuer will be deemed to have satisfied their requirements in the above paragraphs if
the Issuer files the reports and other information of the types otherwise so required within the
applicable time periods.
(d) The Issuer shall at all times comply with Trust Indenture Act § 314(a).
(e) Should the Issuer deliver to the Trustee any such information, reports or certificates or
any annual reports, information, documents and other reports pursuant to Trust Indenture
Act § 314(a), delivery of such information, reports or certificates or any annual reports,
information, documents and other reports 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 Issuer’s compliance with
any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on
Officers’ Certificates).
SECTION 4.04. Compliance Certificate.
(a) The Issuer and each Guarantor shall deliver to the Trustee, within 120 days after the end
of each fiscal year, an Officers’ Certificate stating that a review of the activities of the Issuer
and its Subsidiaries during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether the Issuer has kept, observed, performed and
fulfilled its obligations under this Second Supplemental Indenture, and further stating, as to each
such Officer signing such certificate, that to the best of his or her knowledge the Issuer has
kept, observed, performed and fulfilled each and every covenant contained in this Second
Supplemental Indenture and is not in default in the performance or observance of any of the terms,
provisions and conditions of this Second Supplemental Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default of which he or she
may have knowledge and what action the Issuer is taking or proposes to take with respect thereto)
and that to the best of his or her knowledge no event has occurred and remains in existence by
reason of which payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what action the Issuer is
taking or proposes to take with respect thereto. For the purposes of this paragraph, such
compliance shall be determined without regard to any grace period or requirement of notice provided
under this Second Supplemental Indenture. The Issuer shall also comply with Trust Indenture Act
Section 314(a)(4).
(b) The Issuer shall, so long as any of the Notes are outstanding, deliver to the Trustee,
forthwith and in any event within 90 Business Days upon any Officer becoming aware of any Default
or Event of Default or an event which, with notice or the lapse of time or both, would constitute
an Event of Default, an Officers’ Certificate specifying such Default or Event of Default and what
action the Issuer is taking or proposes to take with respect thereto.
-41-
SECTION 4.05. [Reserved].
SECTION 4.05. [Reserved].
SECTION 4.07. Restricted Payments.
(a) The Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to,
directly or indirectly, declare or make a Restricted Payment if:
(1) a Default has occurred and is continuing or would result therefrom;
(2) the Issuer could not incur at least $1.00 of additional Indebtedness pursuant to
the Coverage Ratio Exception; or
(3) the aggregate amount of such Restricted Payment, together with all other Restricted
Payments (the amount of any Restricted Payments made in assets other than cash to be valued
at its Fair Market Value) declared or made since October 15, 2009 (other than any Restricted
Payment described in clause (2), (3), (4) or (6) of Section 4.07(b)), would exceed the sum
(the “Basket”) of
(A) 50% of the Consolidated Net Income accrued during the period (treated as
one accounting period) from July 1, 2009 to the end of the most recent fiscal
quarter prior to the date of such Restricted Payment for which internal financial
statements are available (or, in case such Consolidated Net Income shall be a
deficit, minus 100% of such deficit); plus
(B) the aggregate Net Cash Proceeds from the issuance and sale (other than to a
Subsidiary of the Issuer) of, and the Fair Market Value of any property received in
exchange for, Qualified Stock received by the Issuer subsequent to October 15, 2009
or from the issue or sale of debt securities of the Issuer that have been converted
or exchanged into Qualified Stock, together with the aggregate cash and Temporary
Cash Investments received by the Issuer or any of its Restricted Subsidiaries at the
time of such conversion or exchange; provided that for purposes of determining the
Fair Market Value of property received (other than of any asset with a public
trading market) in excess of $50.0 million shall be determined by an Independent
Financial Advisor, which determination shall be evidenced by an opinion addressed to
the Issuer and delivered to the Trustee; plus
(C) the amount by which Indebtedness or Disqualified Stock incurred or issued
subsequent to October 15, 2009 is reduced on the Issuer’s consolidated balance sheet
upon the conversion or exchange (other than by a Subsidiary of the Issuer) into
Qualified Stock (less the amount of any cash, or the Fair Market Value of any other
asset, distributed by the Issuer or any Restricted Subsidiary upon such conversion
or exchange); provided that such amount shall not exceed the aggregate Net Cash
Proceeds received by the Issuer or any Restricted Subsidiary after October 15, 2009
from the issuance and sale (other than to a Subsidiary of the Issuer) of such
Indebtedness or Disqualified Stock; plus
(D) to the extent not included in the calculation of the Consolidated Net
Income referred to in Section 4.07(a)(3)(A), an amount equal to, without
duplication:
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(I) 100% of the aggregate net proceeds (including the Fair Market Value
of assets) received by the Issuer or any Restricted Subsidiary upon the sale
or other disposition of any Investment (other than a Permitted Investment)
made by the Issuer or any Restricted Subsidiary since October 15, 2009; plus
(II) the net reduction in Investments (other than Permitted
Investments) in any Person resulting from dividends, repayments of loans or
advances or other Transfers of assets subsequent to October 15, 2009, in
each case to the Issuer or any Restricted Subsidiary from such Person
(including by way of such Person becoming a Restricted Subsidiary); plus
(III) if the Basket was reduced as the result of the designation of a
Restricted Subsidiary as an Unrestricted Subsidiary, the portion
(proportionate to the Issuer’s equity interest in such Subsidiary) of the
Fair Market Value of the net assets of such Unrestricted Subsidiary at the
time such Unrestricted Subsidiary is redesignated, or liquidated or merged
into, a Restricted Subsidiary;
provided that the foregoing shall not exceed, in the aggregate, the amount of all Investments which
previously reduced the Basket.
(b) The provisions of Section 4.07(a) shall not prohibit the following:
(1) dividends paid within 90 days after the date of declaration thereof if at such date
of declaration such dividend would have been permitted under this Second Supplemental
Indenture;
(2) any repurchase, redemption, retirement or other acquisition of Capital Stock or
Subordinated Obligations made in exchange for, or out of the proceeds of the substantially
concurrent issuance and sale (other than to a Subsidiary of the Issuer) of, Qualified Stock
or, with respect to any such Subordinated Obligations, in exchange for or out of the
proceeds of the substantially concurrent incurrence and sale (other than to a Subsidiary of
the Issuer) of Refinancing Indebtedness thereof; provided that (x) no such exchange or
issuance and sale shall increase the Basket and (y) no Default has occurred and is
continuing or would occur as a consequence thereof;
(3) payments by the Issuer or any Restricted Subsidiary in respect of Indebtedness of
the Issuer or any Restricted Subsidiary owed to the Issuer or another Restricted Subsidiary;
(4) repurchases of Capital Stock deemed to occur upon the exercise of stock options or
warrants if such Capital Stock represents a portion of the exercise price thereof and
repurchases of Capital Stock deemed to occur upon the withholding of a portion of the
Capital Stock granted or awarded to an employee to pay for the taxes payable by such
employee upon such grant or award;
(5) cash payments in lieu of the issuance of fractional shares in connection with the
exercise of warrants, options or other securities convertible into or exchangeable for
Capital Stock of the Issuer; provided, however, that any such cash payment shall not be for
the purpose of evading the limitation of the covenant described under this subheading (as
determined in good faith by the Board of Directors);
-43-
(6) Restricted Payments in an aggregate amount since October 15, 2009 not to exceed
$75.0 million pursuant to this clause (6);
(7) so long as no Default has occurred and is continuing, the purchase, redemption or
other acquisition of shares of Capital Stock of the Issuer or any of its Subsidiaries from
consultants, former consultants, employees, former employees, directors or former directors
of the Issuer or any of its Subsidiaries (or permitted transferees of such employees, former
employees, directors or former directors), pursuant to the terms of the agreements
(including employment agreements) or plans (or amendments thereto) approved by the Board of
Directors under which such individuals purchase or sell or are granted the option to
purchase or sell, shares of such Capital Stock; provided, however, that the aggregate amount
of such Restricted Payments pursuant to this clause (7) (excluding amounts representing
cancellation of Indebtedness) shall not exceed $5.0 million in any calendar year (with
unused amounts in any calendar year being carried over to the next succeeding calendar
year); or
(8) the declaration and payments of dividends on Disqualified Stock issued pursuant to
Section 4.09; so long as at the time of payment of such dividend, no Default shall have
occurred and be continuing (or result therefrom).
SECTION 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries.
The Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to,
directly or indirectly, create or otherwise cause or permit to exist or become effective any
consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary of the
Issuer to:
(a) pay dividends or make any other distributions on its Capital Stock to the Issuer or
any other Restricted Subsidiary or pay any Indebtedness owed to the Issuer or any other
Restricted Subsidiary;
(b) make any loans or advances to, or guarantee any Indebtedness of, the Issuer or any
other Restricted Subsidiary, or
(c) Transfer any of its assets to the Issuer or any other Restricted Subsidiary,
except:
(1) any encumbrance or restriction pursuant to an agreement as in effect at or entered
into on the Issue Date (including this Second Supplemental Indenture and the Credit
Facilities), as such encumbrance or restriction is in effect on the Issue Date;
(2) any Lien permitted under this Second Supplemental Indenture that restricts the
Transfer of assets which are subject to such Lien;
(3) restrictions on the Transfer of assets imposed under any agreement to sell such
assets permitted under this Second Supplemental Indenture pending the closing of such sale;
(4) any instrument governing Acquired Indebtedness, which encumbrance or restriction is
not applicable to any Person, or the assets of any Person, other than the Person or the
assets of the Person so acquired;
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(5) customary provisions in partnership agreements, limited liability company
organizational governance documents, joint venture agreements and other similar agreements
entered into in the ordinary course of business that restrict the Transfer of ownership
interests in or the payment of dividends or distributions from such partnership, limited
liability company, joint venture or similar Person;
(6) Purchase Money Indebtedness and Capital Lease Obligations incurred pursuant to
clause (8) of Section 4.09(b) that impose restrictions of the nature described in clause (c)
above on the assets acquired;
(7) any encumbrances or restrictions imposed by any amendments or Refinancings of the
contracts, instruments or obligations referred to in clause (1), (4) or (6) above or clause
(11) below; provided that such amendments or Refinancings are, in the good faith judgment of
the Board of Directors, no more materially restrictive with respect to such encumbrances and
restrictions than those prior to such amendment or Refinancing;
(8) covenants to maintain net worth, total assets or liquidity and similar financial
responsibility covenants under contracts with customers or suppliers in the ordinary course
of business;
(9) any such encumbrance or restriction consisting of customary provisions in leases
governing leasehold interests to the extent such provisions restrict the Transfer of the
lease or the property leased thereunder;
(10) customary provisions in leases, subleases, licenses, sublicenses and service
contracts in the ordinary course of business of the Issuer and the Restricted Subsidiaries
between the Issuer or any Restricted Subsidiary and its customers and other contracts
restricting the assignment thereof;
(11) any agreement as in effect at the time any Person becomes a Subsidiary of the
Issuer; provided that such agreement was not entered into in contemplation of such Person
becoming a Subsidiary;
(12) any agreement with respect to Indebtedness of a Foreign Subsidiary permitted under
this Second Supplemental Indenture so long as such prohibitions or limitations are only with
respect to the properties and revenues of such Subsidiary or any Subsidiary of such Foreign
Subsidiary;
(13) indentures, agreements, notes, instruments and other documents governing
Indebtedness permitted to be incurred under this Second Supplemental Indenture so long as
the restrictions imposed pursuant to such Indebtedness are no more restrictive, taken as a
whole, than those restrictions contained in the Credit Facilities on October 15, 2009; and
(14) any restriction imposed by applicable law, rule, regulation or order.
SECTION 4.09. Incurrence of Indebtedness.
(a) The Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to,
incur, directly or indirectly, any Indebtedness; provided that the Issuer or any Guarantor may
incur Indebtedness if, immediately after giving effect to such incurrence, the Consolidated
Coverage Ratio is at least 2.0 to 1.0 determined on a pro forma basis (including a pro forma
application of the net proceeds
-45-
therefrom), as if the additional Indebtedness had been incurred, and the application of
proceeds therefrom, had occurred at the beginning of such four-quarter period (this proviso, the
“Coverage Ratio Exception”).
(b) Section 4.09(a) will not prohibit incurrence of the following Indebtedness (collectively,
“Permitted Indebtedness”):
(1) the Notes issued on the Issue Date and any related Guarantees;
(2) Indebtedness of the Issuer or any Restricted Subsidiary to the extent outstanding
on the Issue Date, including the Senior Notes due 2017 (other than Indebtedness under
clauses (i) and (ii) of the definition of “Credit Facilities”);
(3) Indebtedness of the Issuer or any Restricted Subsidiary under Credit Facilities in
an aggregate amount at any time outstanding pursuant to this clause (3) (including amounts
outstanding on the Issue Date) not to exceed the greater of:
(A) $1,500.0 million; and
(B) the sum of (x) $1,100.0 million, (y) 75% of the net book value of the
Inventory of the Issuer and the Restricted Subsidiaries and (z) 85% of the net book
value of the accounts receivable of the Issuer and the Restricted Subsidiaries, in
each case determined on a consolidated basis in accordance with GAAP;
(4) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to the
Coverage Ratio Exception, clause (1) of this Section 4.09(b), clause (2) of this Section
4.09(b) (other than any Indebtedness owed to the Issuer or any of its Subsidiaries), this
clause (4), or clause (16) of this Section 4.09(b);
(5) Indebtedness owed by the Issuer or any Restricted Subsidiary to the Issuer or a
Restricted Subsidiary; provided that
(A) any such Indebtedness owed by the Issuer shall be subordinated by its terms
to the prior payment in full in cash of all Obligations with respect to the Notes,
and any such Indebtedness owed by any Guarantor (other than to the Issuer or any
other Guarantor) shall be subordinated by its terms to the prior payment in full in
cash of all Obligations with respect to the Guarantee of such Guarantor; and
(B) if such Indebtedness is held by a Person other than the Issuer or a
Restricted Subsidiary, the Issuer or such Restricted Subsidiary shall be deemed to
have incurred Indebtedness not permitted by this clause (5);
(6) (x) the guarantee by the Issuer or any Guarantor of Indebtedness of the Issuer or a
Guarantor and (y) the guarantee by any Restricted Subsidiary that is not a Guarantor of
Indebtedness of any other Restricted Subsidiary that is not a Guarantor; provided that, in
each case, the Indebtedness being guaranteed is incurred pursuant to the Coverage Ratio
Exception or is Permitted Indebtedness;
(7) Hedging Obligations;
(8) Purchase Money Indebtedness and Capital Lease Obligations of the Issuer or any
Restricted Subsidiary incurred to finance the acquisition, construction or improvement of
any
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assets (including capital expenditures of the Issuer or any Restricted Subsidiary), and
Refinancings thereof, in an aggregate amount at any time outstanding pursuant to this clause
(8) not to exceed the greater of (x) $75.0 million and (y) 5.0% of Consolidated Net Tangible
Assets;
(9) Indebtedness of any Foreign Subsidiary in an aggregate amount not to exceed at any
time outstanding pursuant to this clause (9) not to exceed the greater of (x) $75.0 million
and (y) 5.0% of Consolidated Net Tangible Assets;
(10) Indebtedness of the Issuer or any of its Restricted Subsidiaries represented by
worker’s compensation claims and other statutory or regulatory obligations, self-insurance
obligations, tender, bid, performance, government contract, surety or appeal bonds, standby
letters of credit and warranty and contractual service obligations of like nature, trade
letters of credit or documentary letters of credit, in each case to the extent incurred in
the ordinary course of business of the Issuer or such Restricted Subsidiary;
(11) customary indemnification, adjustment of purchase price or similar obligations, in
each case, incurred in connection with the acquisition or disposition of any assets of the
Issuer or any Restricted Subsidiary (other than guarantees of Indebtedness incurred by any
Person acquiring all or any portion of such assets for the purpose of financing such
acquisition);
(12) obligations in respect of performance bonds and completion, guarantee, surety and
similar bonds in the ordinary course of business;
(13) Indebtedness in respect of Treasury Services Agreements (including Indebtedness
arising from the honoring by a bank or other financial institution of a check, draft or
similar instrument inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds);
(14) Indebtedness arising in connection with endorsement of instruments for deposit in
the ordinary course of business;
(15) Indebtedness consisting of take-or-pay obligations contained in supply agreements
relating to products, services or commodities of a type that the Issuer or any of its
Subsidiaries uses or sells in the ordinary course of business;
(16) Acquired Indebtedness; provided that after giving effect to such acquisition or
merger, either
(A) the Issuer would be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Coverage Ratio Exception; or
(B) the Consolidated Coverage Ratio of the Issuer and the Restricted
Subsidiaries is equal to or greater than immediately prior to such acquisition or
merger;
(17) Indebtedness consisting of the financing of insurance premiums;
(18) Indebtedness consisting of Guarantees incurred in the ordinary course of business
under repurchase agreements or similar agreements in connection with the financing of sales
of goods in the ordinary course of business;
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(19) additional Indebtedness in an aggregate principal amount not to exceed $75.0
million at any time outstanding pursuant to this clause (19); and
(20) the incurrence of Indebtedness by Unrestricted Subsidiaries.
(c) For purposes of determining compliance with this Section 4.09, in the event that an item
of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness
described in clauses (1) through (20) above or is entitled to be incurred pursuant to the Coverage
Ratio Exception, the Issuer shall, in its sole discretion, classify such item of Indebtedness and
may divide and classify such Indebtedness in more than one of the types of Indebtedness described
and may later reclassify such item into any one or more of the categories of Indebtedness described
above (provided that at the time of reclassification it meets the criteria in such category or
categories). The maximum amount of Indebtedness that the Issuer or any Restricted Subsidiary may
incur pursuant to this covenant will not be deemed to be exceeded solely as the result of
fluctuations in the exchange rates of currencies. In determining the amount of Indebtedness
outstanding under one of the clauses above, the outstanding principal amount of any particular
Indebtedness of any Person shall be counted only once and any obligation of such Person or any
other Person arising under any guarantee, Lien, letter of credit or similar instrument supporting
such Indebtedness shall be disregarded so long as it is permitted to be incurred by the Person or
Persons incurring such obligation.
(d) Accrual of interest or dividends, the accretion of accreted value, the accretion or
amortization of original issue discount and the payment of interest or dividends in the form of
additional Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, of the same
class will not be deemed to be an incurrence of Indebtedness, Disqualified Stock or Preferred
Stock.
(e) For purposes of determining compliance with, and the outstanding principal amount of any
particular Indebtedness incurred pursuant to and in compliance with, this Section 4.09, any other
obligation of the obligor on such Indebtedness (or of any other Person who could have incurred such
Indebtedness under this section) arising under any Guarantee, Lien or letter of credit, bankers’
acceptance or other similar instrument or obligation supporting such Indebtedness shall be
disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or
other similar instrument or obligation secures the principal amount of such Indebtedness.
(f) Notwithstanding the provisions of clauses (a) through (e) of this Section 4.09, the Issuer
will not, and will not permit any other Guarantor to, incur any Indebtedness that purports to be by
its terms (or by the terms of any agreement or instrument governing such Indebtedness) subordinated
in right of payment to any other Indebtedness of the Issuer or of such other Guarantor, as the case
may be, unless such Indebtedness is also by its terms made subordinated in right of payment to the
Notes or the Guarantee of such Guarantor, as applicable, to at least the same extent as such
Indebtedness is subordinated in right of payment to such other Indebtedness of the Issuer or such
Guarantor, as the case may be.
SECTION 4.10. Limitation on Asset Sales.
(a) The Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to,
directly or indirectly, consummate any Asset Sale unless:
(i) the Issuer or such Restricted Subsidiary receives consideration at the time of such
Asset Sale at least equal to the Fair Market Value of the assets included in such Asset
Sale; and
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(ii) at least 75% of the total consideration received in such Asset Sale consists of
cash, Temporary Cash Investments or assets referred to in clause (c) below, in each case,
valued at the Fair Market Value thereof, or a combination of the foregoing.
For purposes of clause (ii) above, the following shall be deemed to be cash:
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(A) |
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the amount (without duplication) of any liability (other than
Subordinated Obligations) that would be recorded on a balance sheet prepared in
accordance with GAAP of the Issuer or such Restricted Subsidiary that is
expressly (I) assumed by a Person other than the Issuer or a Restricted
Subsidiary, or (II) is expunged by the holder of such liability, and with
respect to which, in each case, the Issuer or such Restricted Subsidiary, as
the case may be, is unconditionally released from further liability with
respect thereto; |
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(B) |
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the amount of any obligations or securities received from such
Transferee that are within 180 days repaid, converted into or sold or otherwise
disposed of for cash or Temporary Cash Investments (to the extent of the cash
or Temporary Cash Investments actually so received); and |
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(C) |
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any Designated Noncash Consideration received by the Issuer or
any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market
Value, taken together with all other Designated Noncash Consideration received
pursuant to this clause since October 15, 2009 that is at the time outstanding
and held by the Issuer or any Restricted Subsidiary, not to exceed the greater
of (x) $75.0 million or (y) 2.5% of Total Assets at the time of the receipt of
such Designated Noncash Consideration, with the Fair Market Value of each item
of Designated Noncash Consideration being measured at the time received and
without giving effect to subsequent changes in value. |
If at any time any non-cash consideration received by the Issuer or any Restricted Subsidiary
in connection with any Asset Sale is repaid, converted into or sold or otherwise disposed of for
cash or Temporary Cash Investments (other than interest received with respect to any such non-cash
consideration), then the date of such repayment, conversion, sale or other disposition shall be
deemed to constitute the date of an Asset Sale hereunder and the Net Available Proceeds thereof
shall be applied in accordance with this Section 4.10.
(b) If the Issuer or any Restricted Subsidiary engages in an Asset Sale, the Issuer or a
Restricted Subsidiary shall, no later than 365 days following the consummation thereof, apply an
amount equal to all or any of the Net Available Proceeds therefrom as follows:
(i) to repay or otherwise retire amounts owing under the Credit Facilities in
accordance with the Credit Facilities;
(ii) to repay or otherwise retire amounts owing under other Indebtedness (other than
Subordinated Obligations) that is secured by a Lien, which Lien is permitted by this Second
Supplemental Indenture, and to correspondingly reduce commitments with respect thereto;
and/or
(iii) to make (1) an Investment in or expenditure for assets (including Capital Stock
of any Person) that replace the assets that were the subject of the Asset Sale or in assets
(including Capital Stock of any Person) that will be used in the Permitted Business and (2)
capital expenditures that will be used in the Permitted Business (or, in each case of (1)
and (2), enter into a
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binding commitment for any such investment or expenditure); provided that such binding
commitment shall be treated as a permitted application of the Net Available Proceeds from
the date of such commitment until and only until the earlier of (x) the date on which such
investment or expenditure is consummated and (y) the 180th day following the expiration of
the aforementioned 365-day period. If the Investment or expenditure contemplated by such
binding commitment is not consummated on or before the 180th day, such commitment shall be
deemed not to have been a permitted application of Net Available Proceeds.
The amount of Net Available Proceeds not applied or invested as provided in this clause (b)
will constitute “Excess Proceeds.”
(c) When the aggregate amount of Excess Proceeds equals or exceeds $50.0 million, the Issuer
will be required to make an offer to purchase from all noteholders an aggregate principal amount of
Notes and, if the Issuer is required to do so under the terms of any other Indebtedness ranking
pari passu with such Notes, such other Indebtedness on a pro rata basis with the Notes, equal to
the amount of such Excess Proceeds (a “Net Proceeds Offer”) in accordance with the procedures set
forth in Section 3.09.
The offer price for the Notes will be payable in cash and will be equal to 100% of the
principal amount of the Notes tendered pursuant to a Net Proceeds Offer (the “Offered Price”). If
the aggregate Offered Price of Notes validly tendered and not withdrawn by noteholders thereof
exceeds the amount of Excess Proceeds, Notes to be purchased will be selected on a pro rata basis.
Upon completion of such Net Proceeds Offer in accordance with the foregoing provisions, the amount
of Excess Proceeds shall be reduced to zero.
To the extent that the aggregate Offered Price of Notes tendered pursuant to a Net Proceeds
Offer (and if applicable, the aggregate amount of pari passu Indebtedness being repaid, on a pro
rata basis with the Notes) is less than the Excess Proceeds (such shortfall constituting a “Net
Proceeds Deficiency”), the Issuer may use the Net Proceeds Deficiency, or a portion thereof, for
general corporate purposes.
(d) In the event of the Transfer of substantially all (but not all) of the assets of the
Issuer and the Restricted Subsidiaries as an entirety to a Person in a transaction covered by and
effected in accordance with Section 5.01, the Transferee shall be deemed to have sold for cash at
Fair Market Value the assets of the Issuer and the Restricted Subsidiaries not so Transferred for
purposes of this covenant, and shall comply with the provisions of this covenant with respect to
such deemed sale as if it were an Asset Sale (with such Fair Market Value being deemed to be Net
Available Proceeds for such purpose).
(e) The Issuer shall comply, to the extent applicable, with the requirements of Section 14(e)
of the Exchange Act and any other securities laws or regulations in connection with any purchase of
Notes pursuant to this Second Supplemental Indenture. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Second Supplemental Indenture,
the Issuer shall comply with the applicable securities laws and regulations and will not be deemed
to have breached its obligations under this Second Supplemental Indenture by virtue of this
compliance.
SECTION 4.11. Affiliate Transactions.
(a) The Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to,
directly or indirectly, in one transaction or series of related transactions, Transfer any of its
assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any affiliate of the Issuer (an “Affiliate
Transaction”), unless the terms thereof, taken as a whole, are no less favorable to the Issuer or
such Restricted Subsidiary than those that
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could be obtained at the time of such transaction in arm’s-length dealings with a Person that
is not such an affiliate.
(b) The Board of Directors must approve each Affiliate Transaction that involves aggregate
payments or other assets or services with a Fair Market Value in excess of $20.0 million. This
approval must be evidenced by a board resolution that states that such board has determined that
the transaction complies with the foregoing provisions.
(c) If the Issuer or any Restricted Subsidiary enters into an Affiliate Transaction that
involves aggregate payments or other assets or services with a Fair Market Value in excess of $50.0
million, then prior to the consummation of that Affiliate Transaction, the Issuer must obtain a
favorable opinion from an Independent Financial Advisor that it has determined such Affiliate
Transaction to be fair, from a financial point of view, to the noteholders, and deliver that
opinion to the Trustee.
(d) The provisions of clauses (a), (b) and (c) of this Section 4.11 shall not prohibit the
following:
(1) transactions exclusively between, among or solely for the benefit of (i) the Issuer
and one or more Restricted Subsidiaries or (ii) Restricted Subsidiaries; provided, in each
case, that no affiliate of the Issuer (other than another Restricted Subsidiary) owns more
than 10% of the Capital Stock in any such Restricted Subsidiary;
(2) customary director, officer and employee compensation (including bonuses) and other
benefits (including retirement, health, stock option and other benefit plans) and
indemnification arrangements, and agreements to register securities of directors, officers,
employees or other affiliates, in each case approved by the Board of Directors;
(3) Restricted Payments which are made in accordance with Section 4.07 and Investments
constituting Permitted Investments;
(4) any issuance by the Issuer or any Restricted Subsidiary of Qualified Stock;
(5) transactions between the Issuer or any Subsidiary and any Securitization Entity in
connection with a Qualified Securitization Transaction, in each case, provided that such
transactions are not otherwise prohibited by this Second Supplemental Indenture;
(6) transactions with a Person that is an affiliate solely because the Issuer or any
Restricted Subsidiary owns Capital Stock in such Person; provided that no affiliate of the
Issuer (other than a Restricted Subsidiary) owns more than 10% of the Capital Stock in such
Person; or
(7) purchases and sales of raw materials or Inventory in the ordinary course of
business on market terms.
SECTION 4.12. Liens.
The Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to,
directly or indirectly, incur any Lien of any kind securing Indebtedness on any asset of the Issuer
or any Restricted Subsidiary (including Capital Stock of a Restricted Subsidiary), whether owned at
the Issue Date or thereafter acquired, or any income or profits therefrom or assign or convey any
right to receive income therefrom, except Permitted Liens, unless the Notes and the Guarantees are
secured on an equal and ratable basis with the obligations so secured until such time as such
obligations are no longer secured by a Lien;
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provided that if the obligations so secured are subordinated in right of payment by their
terms to the Notes or a Guarantee, the Lien securing such obligations will also have subordinated
Lien priority by its terms to the Lien securing the Notes and the Guarantees at least to a
comparable extent.
SECTION 4.13. Offer to Repurchase Upon Change of Control.
(a) If a Change of Control occurs, each noteholder will have the right to require the Issuer
to purchase all or a portion (equal to $2,000 or an integral multiple of $1,000 in excess thereof)
of such holder’s Notes (the “Change of Control Offer”) at a purchase price equal to 101% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the date of purchase
(subject to the right of holders of record on the relevant record date to receive interest due on
an interest payment date that is on or prior to the date fixed for redemption), in accordance with
the provisions of the next paragraph.
(b) Within 30 days following any Change of Control, the Issuer shall mail a notice to each
noteholder, with a copy to the Trustee, in accordance with the procedures set forth in Section
3.09, that a noteholder must follow in order to have its Notes purchased
(c) The Issuer shall comply, to the extent applicable, with the requirements of Section 14(e)
of the Exchange Act and any other securities laws or regulations in connection with the purchase of
Notes pursuant to this Second Supplemental Indenture. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Second Supplemental Indenture,
the Issuer shall comply with the applicable securities laws and regulations and will not be deemed
to have breached its obligations under any covenant of this Second Supplemental Indenture by virtue
of this compliance.
SECTION 4.14. Corporate Existence.
Except as otherwise permitted by Article 5, the Issuer will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence.
SECTION 4.15. Additional Guarantors.
The Issuer shall cause any Subsidiary, whether currently existing or subsequently acquired or
created, that Guarantees the Issuer’s obligations or the obligations of any Domestic Subsidiary
(other than an Unrestricted Subsidiary) under any Credit Facility to execute and deliver to the
Trustee a Guarantee pursuant to which such Restricted Subsidiary will unconditionally Guarantee, on
a joint and several basis, the full and prompt payment of the principal of, premium, if any and
interest on the Notes and all other obligations under this Second Supplemental Indenture on a
senior unsecured basis. Notwithstanding the foregoing, in the event any Guarantor is released and
discharged in full from all of its obligations under guarantees of any Credit Facility, then the
Guarantee of such Guarantor shall be automatically and unconditionally released or discharged;
provided that such Restricted Subsidiary has not incurred any Indebtedness in reliance on its
status as a Guarantor under Section 4.09 unless such Guarantor’s obligations under such
Indebtedness so incurred are satisfied in full or simultaneously discharged or are otherwise
permitted under one of the exceptions available to Restricted Subsidiaries that are not Guarantors
under the definition of “Permitted Indebtedness” at the time of such release.
SECTION 4.16. Suspension of Covenants.
During any period of time that (i) the Notes have Investment Grade Ratings from both Rating
Agencies, and (ii) no Default has occurred and is continuing under this Second Supplemental
Indenture (the events described in the foregoing clauses (i) and (ii) being collectively referred
to as a “Covenant
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Suspension”), the Issuer and its Restricted Subsidiaries shall not be subject to the following
provisions of this Second Supplemental Indenture (the “Suspended Covenants”):
(1) Section 4.07;
(2) Section 4.08;
(3) Section 4.09;
(4) Section 4.10;
(5) Section 4.11;
(6) Section 4.15;
(7) Section 4.17; and
(8) clause (c)(1) of Section 5.01.
In the event that the Issuer and the Restricted Subsidiaries are not subject to the Suspended
Covenants under this Second Supplemental Indenture for any period of time as a result of the
foregoing, and on any subsequent date (the “Reversion Date”) (a) one or both of the Rating Agencies
withdraw their Investment Grade Rating or downgrade the rating assigned to the Notes below an
Investment Grade Rating or (b) the Issuer or any of its affiliates enters into an agreement to
effect a transaction that would result in a Change of Control and one or more of the Rating
Agencies indicate that if consummated, such transaction (alone or together with any related
recapitalization or refinancing transactions) would cause such Rating Agency to withdraw its
Investment Grade Rating or downgrade the ratings assigned to the Notes below an Investment Grade
Rating, then the Issuer and the Restricted Subsidiaries will thereafter again be subject to the
Suspended Covenants under this Second Supplemental Indenture with respect to future events. The
period beginning on the first day of a Covenant Suspension and ending on a Reversion Date is called
a “Suspension Period.” The ability of the Issuer and the Restricted Subsidiaries to make
Restricted Payments after the time of such withdrawal, downgrade, Default or Event of Default will
be calculated as if the covenant governing Restricted Payments had been in effect during the entire
period of time from the Issue Date.
SECTION 4.17. Conduct of Business. |
The Issuer will not, and will not permit any Restricted Subsidiary to, engage in any business
other than the Permitted Business.
ARTICLE 5
SUCCESSORS
SECTION 5.01. Merger, Consolidation, or Sale of Assets.
(a) The Issuer shall not, in a single transaction or series of related transactions,
consolidate or merge with or into any Person, or Transfer (or cause or permit any Restricted
Subsidiary of the Issuer to Transfer all or substantially all of the Issuer’s assets (determined on
a consolidated basis for the Issuer and its Subsidiaries) whether as an entirety or substantially
as an entirety to any Person unless:
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(1) either:
(A) the Issuer is the surviving or continuing Person; or
(B) the Person (if other than the Issuer) formed by such consolidation or into
which the Issuer is merged or the Transferee of such assets (the “Issuer Surviving
Entity”):
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(x) |
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shall be a corporation, partnership or limited liability company
organized and validly existing under the laws of the United States or any
State thereof or the District of Columbia; provided that in the case where
the surviving Person is not a corporation, a co-obligor of the Notes is a
corporation; and |
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(y) |
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shall expressly assume, by supplemental indenture (in
form and substance satisfactory to the Trustee), executed and delivered to
the Trustee, the due and punctual payment of the principal of and premium,
if any, and interest on all of the Notes and the performance of every
covenant under the Notes and this Second Supplemental Indenture on the
part of the Issuer to be performed or observed; and |
(2) each of the conditions specified in paragraph (c) is satisfied.
For purposes of the foregoing, the Transfer in a single transaction or series of related
transactions of all or substantially all of the assets of one or more Restricted Subsidiaries of
the Issuer, the Capital Stock of which constitutes all or substantially all of the assets of the
Issuer (determined on a consolidated basis for the Issuer and its Subsidiaries), shall be deemed to
be the Transfer of all or substantially all of the assets of the Issuer.
(b) No Guarantor will, and the Issuer will not cause or permit any such Guarantor to,
consolidate with or merge with or into any Person unless
(1) either
(A) such Guarantor shall be the surviving or continuing Person; or
(B) the Person (if other than a Guarantor) formed by such consolidation or into
which such Guarantor is merged shall expressly assume, by supplemental indenture (in
form and substance satisfactory to the Trustee) executed and delivered to the
Trustee, all of the obligations of such Guarantor under its Guarantee and the
performance of every covenant under such Guarantor’s Guarantee and this Second
Supplemental Indenture on the part of such Guarantor to be performed or observed;
and
(2) each of the conditions specified in paragraph (c) below (other than clause (1)
thereof) is satisfied.
The requirements of Sections 5.01(a)(2) and (b)(2) shall not apply to (x) a consolidation or
merger of any Guarantor with and into the Issuer or any other Guarantor, so long as the Issuer or a
Guarantor survives such consolidation or merger, or (y) a Transfer of any Guarantor that complies
with Section 4.10.
(c) The following additional conditions shall apply to each transaction described in Sections
5.01(a) and (b), except that clause (1) below shall not apply to a transaction described in Section
5.01(b):
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(1) immediately after giving effect to such transaction and the assumption contemplated
above (including giving effect to any Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction), the Issuer (or the Issuer Surviving
Entity, if applicable)
(x) could incur at least $1.00 of additional Indebtedness pursuant to the
Coverage Ratio Exception; or
(y) the Consolidated Coverage Ratio of the Issuer and the Restricted
Subsidiaries is equal to or greater than immediately prior to such acquisition or
merger;
(2) immediately before and immediately after giving effect to such transaction and the
assumption contemplated above (including giving effect to any Indebtedness incurred or
anticipated to be incurred and any Lien granted in connection with or in respect of the
transaction), no Default has occurred and is continuing; and
(3) the Issuer shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such transaction and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture comply with the
applicable provisions of this Second Supplemental Indenture, that all conditions precedent
in this Second Supplemental Indenture relating to such transaction have been satisfied and
that supplemental indenture is enforceable.
SECTION 5.02. Successor Corporation Substituted.
Upon any consolidation, combination or merger, or any transfer of all or substantially all of
the assets of the Issuer in accordance with Section 5.01, in which the Issuer is not the continuing
corporation, the successor Person formed by such consolidation or into which the Issuer is merged
or to which such conveyance, lease or transfer is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Issuer under this Second Supplemental Indenture and
the Notes with the same effect as if such surviving entity had been named as such and that, in the
event of a conveyance or transfer (but not a lease), the conveyor or transferor (but not a lessor)
shall be released from the provisions of this Second Supplemental Indenture.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
Any of the following shall constitute an Event of Default:
(a) default for 30 days in the payment when due of interest on any Note;
(b) default in the payment when due of principal on any Note, whether upon maturity,
acceleration, optional redemption, required repurchase or otherwise;
(c) failure to perform or comply with the covenant described under Section 4.13 or the
provisions of Section 3.09 applicable to a Change of Control Offer.
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(d) failure to perform or comply with any covenant, agreement or warranty in this
Second Supplemental Indenture (other than any specified in clause (a), (b) or (c) above)
which failure continues for 60 days after written notice thereof has been given to the
Issuer by the Trustee or to the Issuer and the Trustee by the holders of at least 25% in
aggregate principal amount of then outstanding Notes;
(e) default under any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any Indebtedness for money borrowed by the
Issuer or any Restricted Subsidiary, whether such Indebtedness now exists or is created
after the Issue Date, which
(A) is caused by a failure to pay such Indebtedness at Stated Maturity (after
giving effect to any grace period related thereto) (a “Payment Default”); or
(B) results in the acceleration of such Indebtedness prior to its Stated
Maturity
and in each case, the principal amount of any such Indebtedness as to which a Payment
Default or acceleration shall have occurred, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default or the maturity of which has
been so accelerated, aggregates $25.0 million or more;
(f) one or more final and non-appealable judgments, orders or decrees for the payment
of money of $25.0 million or more, individually or in the aggregate, shall be entered
against the Issuer or any Restricted Subsidiary or any of their respective properties and
which final and non-appealable judgments, orders or decrees are not covered by third party
indemnities or insurance as to which coverage has not been disclaimed and are not paid,
discharged, bonded or stayed within 60 days after their entry;
(g) a court having jurisdiction in the premises enters (x) a decree or order for relief
in respect of the Issuer or any of its Significant Subsidiaries in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or (y) a decree or order adjudging the Issuer or any of its Significant
Subsidiaries a bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the Issuer or any
of its Significant Subsidiaries under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Issuer or any of its Significant Subsidiaries or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed and in effect
for a period of 60 consecutive days;
(h) the Issuer or any of its Significant Subsidiaries:
(i) commences a voluntary case or proceeding under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law or any other case
or proceeding to be adjudicated a bankrupt or insolvent; or
(ii) consents to the entry of a decree or order for relief in respect of the
Issuer or any of its Significant Subsidiaries in an involuntary case or proceeding
under any applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or to
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the commencement of any bankruptcy or insolvency case or proceeding against the
Issuer or any of its Significant Subsidiaries; or
(iii) files a petition or answer or consent seeking reorganization or relief
under any applicable federal or state law; or
(iv) consents to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Issuer or any of its Significant Subsidiaries or of any
substantial part of its property; or
(v) makes an assignment for the benefit of creditors; or
(vi) admits in writing its inability to pay its debts generally as they become
due;
(vii) or takes corporate action in furtherance of any such action; or
(i) the Guarantee of any Guarantor that is a Significant Subsidiary ceases to be in
full force and effect (other than in accordance with the terms of such Guarantee and this
Second Supplemental Indenture) or is declared null and void and unenforceable or is found
invalid or any Guarantor denies its liability under its Guarantee (other than by reason of
release of a Guarantor from its Guarantee in accordance with the terms of this Second
Supplemental Indenture and the Guarantee).
SECTION 6.02. Acceleration.
If an Event of Default occurs and is continuing (other than an Event of Default described in
clause (g) or (h) above with respect to the Issuer), the Trustee or the holders of at least 25% in
principal amount of the outstanding Notes may declare the principal of and accrued but unpaid
interest on all the Notes to be due and payable. Upon such a declaration, such principal and
interest shall be due and payable immediately. If an Event of Default described in clause (g) or
(h) above occurs with respect to the Issuer, the principal of and interest on all the Notes will
immediately become due and payable without any declaration or other act on the part of the Trustee
or any holders of the Notes. Under certain circumstances, the holders of a majority in principal
amount of the outstanding Notes may rescind any such acceleration with respect to the Notes and its
consequences.
At any time after a declaration of acceleration with respect to the Notes as described in the
preceding paragraph, the Holders of a majority in principal amount of the Notes may rescind and
cancel such declaration and its consequences (i) if the rescission would not conflict with any
judgment or decree, (ii) if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of the acceleration,
(iii) to the extent the payment of such interest is lawful, interest on overdue installments of
interest and overdue principal, which has become due otherwise than by such declaration of
acceleration, has been paid, (iv) if the Issuer has paid the Trustee its reasonable compensation
and reimbursed the Trustee for its expenses, disbursements and advances; and (v) in the event of
the cure or waiver of an Event of Default of the type described in clauses (g) or (h) of
Section 6.01, the Trustee shall have received an Officers’ Certificate and an Opinion of Counsel
that such Event of Default has been cured or waived. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
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SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the
performance of any provision of the Notes or this Second Supplemental Indenture. The Trustee may
maintain a proceeding even if it does not possess any of the Notes or does not produce any of them
in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent
permitted by law.
SECTION 6.04. Amendments and Waivers.
Holders of a majority in principal amount of the then outstanding Notes may direct the time,
method and place of conducting any proceeding for exercising any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Second Supplemental Indenture that the Trustee determines
may be unduly prejudicial to the rights of other Holders of Notes or that may involve the Trustee
in personal liability.
SECTION 6.05. Control by Majority.
Holders of a majority in principal amount of the then outstanding Notes may direct the time,
method and place of conducting any proceeding for exercising any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Second Supplemental Indenture that the Trustee determines
may be unduly prejudicial to the rights of other Holders of Notes or that may involve the Trustee
in personal liability.
SECTION 6.06. Limitation on Suits.
Except to enforce the right to receive payment of principal or interest when due, no
noteholder may pursue any remedy with respect to this Second Supplemental Indenture or the Notes
unless:
(a) such holder has previously given the Trustee notice that an Event of Default is
continuing;
(b) holders of at least 25% in principal amount of the outstanding Notes have requested the
Trustee to pursue the remedy;
(c) such holders have offered the Trustee security or indemnity satisfactory to it against any
loss, liability or expense;
(d) the Trustee has not complied with such request within 60 days after the receipt thereof
and the offer of security or indemnity; and
(e) the holders of a majority in principal amount of the outstanding Notes have not given the
Trustee a direction inconsistent with such request within such 60-day period.
SECTION 6.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Second Supplemental Indenture, the right of any
Holder to receive payment of principal, premium, if any, and interest on the Note, on or after the
respective due dates expressed in the Note (including in connection with an offer to purchase), or
to bring suit
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for the enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs and is continuing, the
Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Issuer for the whole amount of principal of, premium on, if any, and interest remaining
unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Issuer
(or any other obligor upon the Notes), its creditors or its property and shall be entitled and
empowered to collect, receive and distribute any money or other property payable or deliverable on
any such claims and any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 7.07. To the extent that the payment
of any such compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 7.07 out of the estate in any such
proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and
shall be paid out of, any and all distributions, dividends, money, securities and other properties
that the Holders may be entitled to receive in such proceeding whether in liquidation or under any
plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of
any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it shall pay out the money in the
following order:
First: to the Trustee, its agents and attorneys for amounts due under Section 7.07,
including payment of all compensation, expense and liabilities incurred, and all advances
made, by the Trustee and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes for principal,
premium, if any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal, premium, if any, and
interest, respectively; and
Third: to the Issuer or to such party as a court of competent jurisdiction shall
direct.
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The Trustee may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Second Supplemental
Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a
court in its discretion may require the filing by any party litigant in the suit of an undertaking
to pay the costs of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses made by the party litigant. This
Section does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.06, or a
suit by Holders of more than 10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
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SECTION 7.01. Certain Duties and Responsibilities. |
The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of this Second Supplemental 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 duties hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Second Supplemental Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee shall be subject to
the provisions of this Section 7.01.
The Trustee undertakes to perform such duties and only such duties as are specifically set
forth in this Second Supplemental Indenture and no implied covenants or obligations shall be read
into this Second Supplemental Indenture against such Trustee.
The Trustee shall not be liable for any error of judgment made in good faith by a Responsible
Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent
facts.
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SECTION 7.02. Notice of Defaults. |
If a Default occurs and is continuing and is known to the Trustee, the Trustee must mail to
each Holder notice of the Default within 90 days after it occurs. Notwithstanding the foregoing,
except in the case of a Default in the payment of principal of or interest on any Note, the Trustee
may withhold notice if and so long as a committee of its trust officers determines that withholding
notice is in the interest of the Holders. In addition, the Issuer is required to deliver to the
Trustee, within 120 days after the end of each fiscal year, a Officers’ Certificate indicating
whether the signers thereof know of any Default that occurred during the previous year. The Issuer
also is required to deliver to the Trustee, within 30 days after the occurrence thereof, written
notice of any event which would constitute certain Defaults, their status and what action the
Issuer is taking or proposes to take in respect thereof.
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SECTION 7.03. Certain Rights of Trustee. |
Subject to the provisions of Section 7.01:
(a) the Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Issuer mentioned herein shall be sufficiently
evidenced by a Issuer Request or Issuer Order or as otherwise expressly provided herein and
any resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Second Supplemental 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 willful misconduct on its part, rely upon an Officers’
Certificate;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Second Supplemental Indenture at the request or direction of any of the
Holders pursuant to this Second Supplemental Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to it against the costs, expenses
and liabilities which might be incurred by it in compliance with such request or direction;
(f) 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 Issuer, personally or by agent or attorney at the expense
of the Issuer and shall incur no liability of any kind by reason of such inquiry or
investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(h) The Trustee shall not be charged with knowledge of any default or Event of Default
unless either (1) a Responsible Officer of the Trustee shall have actual knowledge of such
default or Event of Default or (2) written notice of such default or Event of Default shall
have been given to the Trustee by the Issuer or any Guarantor or by any Holder;
(i) 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 Second Supplemental Indenture;
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(j) in no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of
profit) irrespective of whether the Trustee has been advised of the likelihood of such loss
or damage and regardless of the form of action; and
(k) 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.
SECTION 7.04. Not Responsible for Recitals or Issuance of Notes. |
The recitals contained herein and in the Notes, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Issuer, and the Trustee does not assume any
responsibility for their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Second Supplemental Indenture or of the Notes. The Trustee shall not be
accountable for the use or application by the Issuer of the Notes or the proceeds thereof.
SECTION 7.05. May Hold Notes and Serve as Trustee Under Other Indentures. |
The Trustee, any Paying Agent or any other agent of the Issuer, in its individual or any other
capacity, may become the owner or pledgee of Notes and, subject to Sections 7.08 and 7.13, may
otherwise deal with the Issuer with the same rights it would have if it were not Trustee, Paying
Agent or such other agent.
Subject to the provisions of Section 7.08, the Trustee may become and act as trustee under
other indentures under which other securities, or certificates of interest or participation in
other securities, of the Issuer are outstanding in the same manner as if it were not Trustee.
SECTION 7.06. Money Held in Trust. |
Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Issuer.
SECTION 7.07. Compensation and Reimbursement. |
The Issuer agrees
(a) to pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the Trustee, and each
predecessor Trustee, upon its request for all expenses, disbursements and advances incurred
or made by the Trustee in accordance with any provision of this Second Supplemental
Indenture (including the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance as shall be determined
to have been caused by its own negligence or willful misconduct; and
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(c) to fully indemnify the Trustee, and each predecessor Trustee, for, and to hold it
harmless against, any loss, liability or expense incurred without negligence or willful
misconduct on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the 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.
As security for the performance of the obligations of the Issuer under this Section the
Trustee shall have a lien prior to the Notes upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the Holders of the Notes. When the
Trustee incurs expenses or renders services in connection with an Event of Default specified in
Section 501 or in connection with Article Five, the expenses (including the reasonable fees and
expenses of its counsel) and the compensation for the service in connection therewith are intended
to constitute expenses of administration under any bankruptcy law. The provisions of this Section
shall survive the resignation or removal of the Trustee and the termination of this Second
Supplemental Indenture.
SECTION 7.08. Disqualification: Conflicting Interests. |
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign to the extent and in the
manner provided by, and subject to the provisions of the Trust Indenture Act and this Second
Supplemental Indenture. To the extent permitted by such Act, the Trustee shall not be deemed to
have a conflicting interest by virtue of being a trustee under the Base Indenture with respect to
Securities of more than one series.
SECTION 7.09. Corporate Trustee Required: Eligibility. |
There shall at all times be a Trustee hereunder which shall be a corporation organized and
doing business under the laws of the United States of America, any State thereof or the District of
Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $500,000,000 subject to supervision or examination by Federal or State
authority and having its Corporate Trust Office in The City of
New York. If such corporation
publishes reports of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article.
SECTION 7.10. Resignation and Removal; Appointment of Successor. |
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section 7.11.
(b) The Trustee may resign at any time by giving written notice thereof to the Issuer. If the
instrument of acceptance by a successor Trustee required by Section 7.11 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition at the expense of the Issuer any court of competent jurisdiction for
the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a majority in principal
amount of the Notes then outstanding voting as a single class, delivered to the Trustee and to the
Issuer. If the instrument of acceptance by a successor Trustee required by Section 7.11 shall not
have been
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delivered to the Trustee within 30 days after the giving of such notice of removal, the removed
Trustee may petition at the expense of the Issuer any court of competent jurisdiction for the
appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 7.08(a) after written request
therefor by the Issuer or by any Holder who has been a bona fide Holder for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 7.09 and shall fail to resign
after written request therefor by the Issuer or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the
Issuer by or pursuant to a Board Resolution may remove the Trustee, or (ii) subject to
Section 6.05, any Holder who has been a bona fide Holder for at least six months may, on
behalf of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, the Issuer, by or pursuant to a Board
Resolution, shall promptly appoint a successor Trustee and shall comply with the applicable
requirements of Section 7.11. If, within one year after such resignation, removal or incapability,
or the occurrence of such vacancy, a successor Trustee shall be appointed by Act of the Holders of
a majority in principal amount of the Notes then outstanding voting as a single class delivered to
the Issuer and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of Section 7.11,
become the successor Trustee and to that extent supersede the successor Trustee appointed by the
Issuer. If no successor Trustee shall have been so appointed by the Issuer or the Holders and
accepted appointment in the manner required by Section 7.11, any Holder who has been a bona fide
Holder for at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor Trustee.
(f) The Issuer shall give notice of each resignation and each removal of the Trustee and each
appointment of a successor Trustee in the manner provided in Section 13.02. Each notice shall
include the name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 7.11. Acceptance of Appointment by Successor. |
(a) In case of the appointment hereunder of a successor Trustee, every such successor Trustee
so appointed shall execute, acknowledge and deliver to the Issuer and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Issuer or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer
and deliver to such successor Trustee all property and money held by such retiring Trustee
hereunder. Any Trustee ceasing to act shall, nevertheless, retain its prior lien upon all property
or funds held or collected by such Trustee to secure any amounts then due it pursuant to the
provisions of Section 7.07.
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(b) In case of the appointment hereunder of a successor Trustee, the Issuer, the retiring
Trustee and each successor Trustee shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such successor Trustee relates;
and upon the execution and delivery of such supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the Issuer or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.
(c) Upon request of any such successor Trustee, the Issuer shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (a) or (b) of this Section 7.11, as the
case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance
such successor Trustee shall be qualified and eligible under this Article 7.
SECTION 7.12. Merger, Conversion, Consolidation or Succession to Business. |
Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Notes shall have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Notes so authenticated with the same effect as if such successor
Trustee had itself authenticated such Notes.
SECTION 7.13. Preferential Collection of Claims Against Issuer. |
If and when the Trustee shall be or become a creditor of the Issuer (or any other obligor upon
the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Issuer (or any such other obligor).
SECTION 7.14. Investment of Certain Payments Held by the Trustee. |
Any amounts deposited by the Issuer and held by the Trustee hereunder, other than pursuant to
Section 8.04 or Section 8.06, shall be invested by the Trustee from time to time at the direction
of the Issuer in such investments as may be specified in writing by the Issuer and reasonably
agreed to by the Trustee from time to time; provided that no amounts deposited in respect of any
payment on the Notes shall be invested in an investment that matures after the due date of such
payment and that the Trustee shall have no liability to the Issuer for any loss on such
investments; provided, further, that in investing trust funds pursuant to the terms of this Section
7.14 and liquidating any investments held in trust hereunder, the Trustee may, to the extent
permitted by law, purchase securities (including for the purposes of this paragraph securities as
to which the Trustee or a Trustee Affiliate is the issuer or guarantor) from, and sell securities
to, itself or any Trustee Affiliate and purchase securities underwritten by, or in which a market
is made by, the Trustee or a Trustee Affiliate. For the purposes hereof, a “Trustee Affiliate”
shall mean an entity that directly, or indirectly through one or more intermediaries, controls, or
is controlled by,
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or is under common control with, the Trustee. Any income or gain realized as a result of any
such investment shall be promptly distributed to the Issuer after payment of any amounts required
to be paid to the Holders entitled thereto, except after the occurrence and during the continuance
of an Event of Default. The Trustee shall have no liability to the Issuer for any loss resulting
from any investment made in accordance with this Section 7.14, and shall bear no expense in
connection with any investment pursuant to this Section 7.14. Any such investment may be sold
(without regard to maturity date) by the Trustee whenever necessary to make any distribution
required by this Second Supplemental Indenture.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuer may, at the option of its Board of Directors evidenced by a resolution set forth in
an Officers’ Certificate, at any time, elect to have either Section 8.02 or 8.03 applied to all
outstanding Notes upon compliance with the conditions set forth below in this Article 8.
SECTION 8.02. Legal Defeasance and Discharge.
Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.02,
the Issuer shall, subject to the satisfaction of the conditions set forth in Section 8.04, be
deemed to have been discharged from its obligations with respect to all outstanding Notes on the
date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this
purpose, Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the
entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be
“outstanding” only for the purposes of Section 8.05 and the other Sections of this Second
Supplemental Indenture referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Notes and this Second Supplemental Indenture (and the Trustee, on demand of
and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except
for the following provisions which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of outstanding Notes to receive solely from the trust fund
described in Section 8.04, and as more fully set forth in such Section, payments in respect of the
principal amount of, premium, if any, and interest on such Notes when such payments are due,
(b) the Issuer’s obligations with respect to such Notes under Article 2 and Section 4.02, (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the Issuer’s obligations
in connection therewith and (d) the provisions of this Article 8 with respect to Legal Defeasance.
Subject to compliance with this Article 8, the Issuer may exercise its option under this
Section 8.02 notwithstanding the prior exercise of its option under Section 8.03.
SECTION 8.03. Covenant Defeasance.
Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.03,
the Issuer shall, subject to the satisfaction of the conditions set forth in Section 8.04, be
released from its obligations under the covenants contained in Sections 4.07, 4.08, 4.09, 4.10,
4.11, 4.12, 4.13, 4.14, 4.15 and 4.17 with respect to the outstanding Notes on and after the date
the conditions set forth in Section 8.04 are satisfied (hereinafter, “Covenant Defeasance”), and
the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver,
consent or declaration or act of Holders (and the consequences of any thereof) in connection with
such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it
being understood that such Notes shall not be deemed outstanding for accounting purposes). For
this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Issuer may
omit to comply with and shall have no liability in respect of any term, condition or
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limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of any reference in any
such covenant to any other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 6.01, but, except as specified
above, the remainder of this Second Supplemental Indenture and such Notes shall be unaffected
thereby. In addition, upon the Issuer’s exercise under Section 8.01 of the option applicable to
this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04,
Sections 6.01(d) and 6.01(e) shall not constitute Events of Default.
SECTION 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section 8.02 or 8.03 to the
outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders, cash in United States dollars, non-callable U.S. Government Obligations, or a
combination thereof, in such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal amount at maturity
of, premium and interest on the outstanding Notes on the stated date for payment thereof or
on the applicable redemption date, as the case may be;
(b) in the case of an election under Section 8.02, the Issuer shall have delivered to
the Trustee an Opinion of Counsel in the United States of America reasonably acceptable to
the Trustee confirming that (A) the Issuer has received from, or there has been published
by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a
change in the applicable Federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding
Notes will not recognize income, gain or loss for Federal income tax purposes as a result of
such Legal Defeasance and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such Legal Defeasance had
not occurred;
(c) in the case of an election under Section 8.03, the Issuer shall have delivered to
the Trustee an Opinion of Counsel in the United States of America reasonably acceptable to
the Trustee confirming that the Holders of the outstanding Notes will not recognize income,
gain or loss for Federal income tax purposes as a result of such Covenant Defeasance and
will be subject to Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be continuing on the date of
such deposit (other than a Default or Event of Default resulting from the incurrence of
Indebtedness all or a portion of the proceeds of which will be used to defease the Notes
pursuant to this Article 8 concurrently with such incurrence and the grant of a Lien to
secure such Indebtedness) or insofar as Section 6.01(g) or 6.01(h) is concerned, at any
time in the period ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under this Second Supplemental Indenture (other than a
Default or an Event of Default resulting from the borrowing of funds to be applied to such
deposit and the grant of any Lien securing such borrowing) or any other material agreement
or instrument to
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which the Issuer or any of its Subsidiaries is a party or by which the Issuer or any
of its Subsidiaries is bound;
(f) the Issuer shall have delivered to the Trustee an Opinion of Counsel (which may be
subject to customary exceptions) to the effect that after the 91st day following the
deposit, the trust funds will not be subject to the effect of the preference provisions of
Section 547 of the United States Federal Bankruptcy Code;
(g) the Issuer shall have delivered to the Trustee an Officers’ Certificate stating
that the deposit was not made by the Issuer with the intent of preferring the Holders over
any other creditors of the Issuer or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Issuer or others;
(h) the Issuer shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for or relating to
the Legal Defeasance or the Covenant Defeasance have been complied with; and
(i) the Issuer shall have paid or duly provided for payment of all amounts then due to
the Trustee pursuant to Section 7.07.
Notwithstanding the foregoing, the Opinion of Counsel required by clause (b) above with
respect to a Legal Defeasance need not be delivered if all Notes not therefor delivered to the
Trustee for cancellation (A) have become due and payable, or (B) will become due and payable on the
maturity date within one year under arrangements satisfactory to the Trustee for giving of notice
of redemption by the Trustee in the name, and at the expense, of the Issuer
SECTION 8.05. Deposited Money and U.S. Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions.
All cash and non-callable U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section
8.05, the “Trustee”) pursuant to Section 8.04 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 Second
Supplemental Indenture, to the payment, either directly or through any Paying Agent (including the
Issuer acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium, if any, and interest, but such
cash and securities need not be segregated from other funds except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or non-callable U.S. Government Obligations deposited pursuant to
Section 8.04 or the principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay
to the Issuer from time to time upon the request of the Issuer any money or non-callable U.S.
Government Obligations held by it as provided in Section 8.04 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section 8.04(a)), are in excess
of the amount thereof that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
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SECTION 8.06. Satisfaction and Discharge.
This Second Supplemental Indenture shall be discharged and shall cease to be of further effect
(except as to surviving rights or registration of transfer or exchange of the Notes, as expressly
provided for in this Second Supplemental Indenture) as to all outstanding Notes when (i) either
(a) all the Notes theretofore authenticated and delivered (except lost, stolen or destroyed Notes
which have been replaced or paid and Notes for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or
discharged from such trust) have been delivered to the Trustee for cancellation or (b) outstanding
Notes have become due and payable whether at maturity or as a result of the mailing of a notice of
redemption, and the Issuer irrevocably deposits with the Trustee funds sufficient to pay at
maturity or upon redemption all outstanding Notes, including interest thereon and (ii) the Issuer
has paid all other sums payable under this Second Supplemental Indenture by the Issuer. The
Trustee will acknowledge the satisfaction and discharge of this Second Supplemental Indenture if
the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, at the
cost and expense of the Issuer, stating that all conditions precedent under this Second
Supplemental Indenture relating to the satisfaction and discharge of this Second Supplemental
Indenture have been complied with.
SECTION 8.07. Repayment to Issuer.
Any cash or non-callable U.S. Government Obligations deposited with the Trustee or any Paying
Agent, or then held by the Issuer, in trust for the payment of the principal of, premium, if any,
or interest on, any Note and remaining unclaimed for two years after such principal, and premium,
if any, or interest has become due and payable shall be paid to the Issuer on its request or (if
then held by the Issuer) shall be discharged from such trust; and the Holder shall thereafter, as
an unsecured creditor, look only to the Issuer for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such cash and securities, and all liability of the
Issuer as trustee thereof, shall thereupon cease;
provided,
however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the expense of the Issuer
cause to be published once, in The
New York Times and The Wall Street Journal (national edition),
notice that such cash and securities remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such notification or publication, any
unclaimed balance of such cash and securities then remaining will be repaid to the Issuer.
Reinstatement
If the Trustee or Paying Agent is unable to apply any cash or non-callable U.S. Government
Obligations in accordance with Section 8.02 or 8.03, as the case may be, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Issuer’s obligations under this Second Supplemental Indenture and the
Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or
8.03 until such time as the Trustee or Paying Agent is permitted to apply all such cash and
securities in accordance with Section 8.02 or 8.03, as the case may be; provided, however, that, if
the Issuer makes any payment of principal of, premium, if any, or interest on any Note following
the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders
to receive such payment from the cash and securities held by the Trustee or Paying Agent.
SECTION 8.08. Survival.
The Trustee’s rights under this Article 8 shall survive termination of this Second
Supplemental Indenture or the resignation of the Trustee.
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ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. Without Consent of Holder.
Notwithstanding Section 9.02, the Issuer and the Trustee may amend or supplement this Second
Supplemental Indenture, the Guarantees or the Notes without the consent of any Holder to:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for the assumption by a successor Person of the obligations of the
Issuer or any Guarantor under this Second Supplemental Indenture in accordance with Section
5.01;
(c) to provide for uncertificated Notes in addition to or in the place of certificated
Notes (provided that the uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code; or in a manner such that the uncertificated Notes are described
in Section 163(f)(2)(B) of the Code);
(d) to add a Guarantor;
(e) to release a Guarantor from its Guarantee when permitted by this Second
Supplemental Indenture;
(f) to add to the covenants of the Issuer for the benefit of the Holders or to
surrender any right or power conferred upon the Issuer;
(g) to comply with any requirement of the SEC in connection with the qualification of
this Second Supplemental Indenture under the Trust Indenture Act;
(h) to make any other change that does not materially adversely affect the rights of
any Holder; or
(i) to conform this Second Supplemental Indenture to the Description of Notes contained
in the Prospectus Supplement.
SECTION 9.02. Supplemental Indentures with Consent of Holders. |
Except as provided below in this Section 9.02, this Second Supplemental Indenture (including
Sections 3.09, 4.10 and 4.13), the Guarantees and the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the Notes then outstanding
voting as a single class (including consents obtained in connection with a tender offer or exchange
offer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07, any existing Default
or Event of Default (other than a Default or Event of Default in the payment of the principal of,
premium, if any, or interest on the Notes, except a payment default resulting from an acceleration
that has been rescinded) or compliance with any provision of this Second Supplemental Indenture,
the Guarantees or the Notes may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes voting as a single class (including consents
obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes). The
provisions of Section 2.08 shall determine which Notes are considered to be “outstanding” for
purposes of this Section 9.02.
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Upon the request of the Issuer accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and upon the filing with
the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02, the Trustee
shall join with the Issuer in the execution of such amended or supplemental indenture unless such
amended or supplemental indenture directly affects the Trustee’s own rights, duties or immunities
under this Second Supplemental Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of Notes under this Section 9.02 to
approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such
consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Issuer
shall mail to the Holders of Notes affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Issuer to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such amended or supplemental
indenture or waiver. Subject to Sections 6.04 and 6.07, the Holders of a majority in aggregate
principal amount of the Notes then outstanding voting as a single class may waive compliance in a
particular instance by the Issuer with any provision of this Second Supplemental Indenture or the
Notes. However, without the consent of each Holder affected, an amendment or waiver under this
Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):
(a) reduce the principal of or change the fixed maturity of any Note;
(b) alter the provisions with respect to the redemption or purchase provisions of any
Note or this Second Supplemental Indenture in a manner adverse to the holders of the Notes
(other than the provisions of this Second Supplemental Indenture relating to any offer to
purchase required under Section 4.13);
(c) waive a redemption or purchase payment due with respect to any Note;
(d) reduce the rate of or change the time for payment of interest on any Note;
(e) waive a Default in the payment of principal or interest on the Note (except that
holders of at least at majority aggregate principal amount of then outstanding Notes may (x)
rescind acceleration of the Notes that resulted from a non-payment and (y) waive the payment
default that resulted from such acceleration);
(f) make the principal of or interest on any Note payable in money other than United
States Dollars;
(g) make any change in the provisions of this Second Supplemental Indenture relating to
waivers of past Defaults or the rights of holders of Notes to receive payments of principal
of or interest on the Notes;
(h) make the Notes or any Guarantee subordinated by their or its terms in right of
payment to any other Indebtedness;
(i) release any Guarantor that is a Significant Subsidiary from its Guarantee except in
compliance with this Second Supplemental Indenture; or
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(j) make any change in the amendment and waiver provisions of this Second Supplemental
Indenture
SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Second Supplemental Indenture or the Notes shall be set
forth in an amended or supplemental indenture that complies with the Trust Indenture Act as then in
effect.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder or portion thereof that evidences the
same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note.
However, any such Holder or subsequent Holder may revoke the consent as to its Note or portion
thereof if the Trustee receives written notice of revocation before the date the waiver, supplement
or amendment becomes effective. An amendment, supplement or waiver shall become effective in
accordance with its terms and thereafter shall bind every Holder.
SECTION 9.05. Trustee to Sign Amendments.
The Trustee shall sign any amended or supplemental indenture authorized pursuant to this
Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. None of the Issuer nor any Guarantor may sign an amendment or
supplemental indenture until its board of directors (or committee serving a similar function)
approves it. In executing any amended or supplemental indenture, the Trustee shall be provided
with and (subject to Section 7.01) shall be fully protected in relying upon an Officers’
Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Second Supplemental Indenture and that such amended or
supplemental indenture is the legal, valid and binding obligations of the Issuer enforceable
against it in accordance with its terms, subject to customary exceptions and that such amended or
supplemental indenture complies with the provisions hereof (including Section 9.03).
ARTICLE 10
[RESERVED]
ARTICLE 11
GUARANTEES
SECTION 11.01. Guarantees.
Each Guarantor hereby unconditionally guarantees, jointly and severally, to each Holder and to
the Trustee and its successors and assigns (a) the full and punctual payment of principal of and
interest on the Notes when due, whether at maturity, by acceleration, by redemption or otherwise,
and all other monetary obligations of the Issuer under this Second Supplemental Indenture and the
Notes and (b) the full and punctual performance within applicable grace periods of all other
obligations of the Issuer under this Second Supplemental Indenture and the Notes (all the foregoing
being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees
that the Guaranteed Obligations may be
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extended or renewed, in whole or in part, without notice or further assent from such Guarantor
and that such Guarantor will remain bound under this Article 11 notwithstanding any extension or
renewal of any Guaranteed Obligation.
Each Guarantor waives presentation to, demand of, payment from and protest to the Issuer of
any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor
waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of
each Guarantor hereunder shall not be affected by (a) the failure of any Holder or the Trustee to
assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person
under this Second Supplemental Indenture, the Notes or any other agreement or otherwise; (b) any
extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any
of the terms or provisions of this Second Supplemental Indenture, the Notes or any other agreement;
(d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or
any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against
any other guarantor of the Obligations; or (f) except as set forth in Section 11.06, any change in
the ownership of such Guarantor.
Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment,
performance and compliance when due (and not a guarantee of collection) and waives any right to
require that any resort be had by any Holder or the Trustee to any security held for payment of the
Guaranteed Obligations.
Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or
interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or
the Trustee upon the bankruptcy or reorganization of the Issuer or otherwise.
Each Guarantor agrees that it shall not be entitled to any right of subrogation in respect of
any Guaranteed Obligations until payment in full of all Guaranteed Obligations. Each Guarantor
further agrees that, as between it, on the one hand, and the Holders and the Trustee, on the other
hand, (x) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 6
for the purposes of such Guarantor’s Guarantee herein, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the Guaranteed Obligations, and (y) in
the event of any declaration of acceleration of such Guaranteed Obligations as provided in
Article 6, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due
and payable by such Guarantor for the purposes of this Section.
Each Guarantor also agrees to pay any and all costs and expenses (including reasonable
attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Section.
SECTION 11.02. Limitation on Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the
intention of all such parties that the Guarantee of such Guarantor (a) not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any
Guarantee, and (b) not result in a distribution to shareholders not permitted under the applicable
state law. Any term or provision of this Second Supplemental Indenture to the contrary
notwithstanding, the maximum aggregate amount of the Obligations guaranteed hereunder by any
Guarantor shall not exceed the maximum amount that can be hereby guaranteed without rendering this
Second Supplemental Indenture, as it relates to such Guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally. Each Guarantor that makes a payment or distribution
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under a Guarantee will be entitled to a contribution from each other Guarantor in an amount
pro rata, based on the net assets of each Guarantor.
SECTION 11.03. Successors and Assigns.
This Article 11 shall be binding upon each Guarantor and its successors and assigns and shall
inure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event
of any transfer or assignment of rights by any Holder or the Trustee, the rights and privileges
conferred upon that party in this Second Supplemental Indenture and in the Notes shall
automatically extend to and be vested in such transferee or assignee, all subject to the terms and
conditions of this Second Supplemental Indenture.
SECTION 11.04. No Waiver.
Neither a failure nor a delay on the part of either the Trustee or the Holders in exercising
any right, power or privilege under this Article 11 shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any right, power or
privilege. The rights, remedies and benefits of the Trustee and the Holders herein expressly
specified are cumulative and not exclusive of any other rights, remedies or benefits which either
may have under this Article 11 at law, in equity, by statute or otherwise.
SECTION 11.05. [Reserved].
SECTION 11.06. Release of Guarantor.
The Guarantee of any Restricted Subsidiary will be automatically and unconditionally released
and discharged upon any of the following:
(a) any sale, exchange or transfer by the Issuer or any Restricted Subsidiary to any
Xxxxx or Persons, as a result of which the Restricted Subsidiary is no longer a Subsidiary
of the Issuer, of a majority of the Capital Stock of, or all or substantially all the assets
of, such Restricted Subsidiary, which sale, exchange or transfer is made in accordance with
the provisions of this Second Supplemental Indenture;
(b) the designation of such Restricted Subsidiary as an Unrestricted Subsidiary in
accordance with the provisions of this Second Supplemental Indenture; or
(c) the release of such Restricted Subsidiary’s Guarantee under any Credit Facility;
provided that such Restricted Subsidiary has not incurred any Indebtedness in reliance on
its status as a Guarantor under Section 4.09 unless such Guarantor’s obligations under such
Indebtedness so incurred are satisfied in full or simultaneously discharged or are otherwise
permitted under one of the exceptions available to Restricted Subsidiaries that are not
Guarantors under the definition of “Permitted Indebtedness” at the time of such release;
provided, in each such case, that the Issuer has delivered to the Trustee an Officers’ Certificate
and an Opinion of Counsel, each stating that all conditions precedent provided for in this Second
Supplemental Indenture relating to such transactions have been complied with and that such release
is authorized and permitted under this Second Supplemental Indenture.
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SECTION 11.07. Contribution.
Each Guarantor that makes a payment under its Guarantee shall be entitled upon payment in full
of all Guaranteed Obligations to contribution from each Guarantor, as applicable, in an amount
equal to such Guarantor’s pro rata portion of such payment based on the respective net assets of
all the Guarantors at the time of such payment determined in accordance with GAAP.
ARTICLE 12
[RESERVED]
ARTICLE 13
MISCELLANEOUS
SECTION 13.01. Trust Indenture Act Controls.
If any provision of this Second Supplemental Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Second Supplemental Indenture by the
Trust Indenture Act, the provision required by the Trust Indenture Act shall control.
SECTION 13.02. Notices.
Any notice or communication by the Issuer or the Trustee to the other is duly given if in
writing and delivered in person or mailed by first class mail (registered or certified, return
receipt requested), facsimile or electronic transmission or overnight air courier guaranteeing
next-day delivery, to the other’s address:
If to the Issuer:
Solutia Inc.
000 Xxxxxxxx Xxxxxx Xxxxx
X.X. Xxx 00000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopier No.: (000) 000-0000
With a copy to:
Xxxxxxxx &Ellis LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxxx, Esq.
Telecopier No. (000) 000-0000
If to the Trustee:
The Bank of
New York Mellon Trust Company, N.A.
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0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Telecopier No.: (000) 000-0000
The Issuer or the Trustee, by notice to the other, may designate additional or different
addresses for subsequent notices or communications.
All notices and communications (other than those sent to the Trustee or Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if sent by facsimile transmission; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next-day delivery. All notices and
communications to the Trustee or Holders shall be deemed duly given and effective only upon
receipt.
Any notice or communication to a Holder shall be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next-day delivery to
its address shown on the security register for the Notes. Any notice or communication shall also
be so mailed to any Person described in Trust Indenture Act § 313(c), to the extent required by the
Trust Indenture Act. Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.
If the Issuer mails a notice or communication to Holders, it shall mail a copy to the Trustee
and each Agent at the same time.
SECTION 13.03. Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to Trust Indenture Act §312(b) with other Holders with
respect to their rights under this Second Supplemental Indenture or the Notes. The Issuer, the
Trustee, the Registrar and anyone else shall have the protection of Trust Indenture Act §312(c).
SECTION 13.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer to the Trustee to take any action under any
provision of this Second Supplemental Indenture, the Issuer shall furnish to the Trustee:
(a) an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 13.05) stating that, in the
opinion of the signers, all conditions precedent and covenants, if any, provided for in this
Second Supplemental Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 13.05) stating that, in the opinion
of such counsel, all such conditions precedent and covenants have been complied with.
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SECTION 13.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Second Supplemental Indenture (other than a certificate provided pursuant to Trust
Indenture Act § 314(a)(4)) shall comply with the provisions of Trust Indenture Act § 314(e) and
shall include:
(a) a statement that the Person making such certificate or opinion has read such
covenant or condition;
(b) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable such Person to express an informed
opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been satisfied.
SECTION 13.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar
or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
SECTION 13.07. No Personal Liability of Directors, Officers, Employees and Stockholders.
No past, present or future director, officer, employee, incorporator or stockholder of the
Issuer, any Guarantor or the Trustee, as such, shall have any liability for any obligations of the
Issuer or of the Guarantors under the Notes, this Second Supplemental Indenture, the Guarantees or
for any claim based on, in respect of, or by reason of, such obligations or their creation. Each
Holder by accepting a Note waives and releases all such liability. The waiver and release are part
of the consideration for issuance of the Notes.
SECTION 13.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF
NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SECOND
SUPPLEMENTAL INDENTURE AND THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
SECTION 13.09. No Adverse Interpretation of Other Agreements.
This Second Supplemental Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Issuer or its Subsidiaries or of any other Person. Any such indenture, loan
or debt agreement may not be used to interpret this Second Supplemental Indenture.
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SECTION 13.10. Successors.
All covenants and agreements of the Issuer in this Second Supplemental Indenture and the Notes
shall bind its successors. All covenants and agreements of the Trustee in this Second Supplemental
Indenture shall bind its successors.
SECTION 13.11. Severability.
In case any provision in this Second Supplemental Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
SECTION 13.12. Counterpart Originals.
The parties may sign any number of copies of this Second Supplemental Indenture. Each signed
copy shall be an original, but all of them together represent the same agreement.
SECTION 13.13. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings in this Second Supplemental
Indenture have been inserted for convenience of reference only, are not to be considered a part of
this Second Supplemental Indenture and shall in no way modify or restrict any of the terms or
provisions hereof.
SECTION 13.14. Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.
SECTION 13.15. Note Purchases by Issuer and Affiliates.
The Issuer and its Affiliates shall be permitted to purchase Notes, whether through private
purchase, open market purchase, tender offer, or otherwise. Such purchase or acquisition shall not
operate as or be deemed for any purpose to be a redemption of the Indebtedness represented by such
Notes. Any Notes purchased or acquired by the Issuer may be delivered to the Trustee and, upon
such delivery the Indebtedness represented thereby shall be deemed to be satisfied. Section 2.09
shall be applicable to any Notes acquired by the Issuer and its Affiliates.
[Signatures on following page]
-78-
SIGNATURES
Dated as the date first written above
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ISSUER:
Solutia Inc.
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By: |
/s/ Xxxx X. Xxxxx III |
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Name: |
Xxxx X. Xxxxx III |
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Title: |
Senior Vice President, General
Counsel, and
Assistant Secretary |
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GUARANTORS:
CPFilms Inc.
Flexsys America Co.
Monchem International, Inc.
Solutia Business Enterprises Inc.
Solutia Inter-America, Inc.
Solutia Overseas, Inc.
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By: |
/s/ Xxxx X. Xxxxx III |
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Name: |
Xxxx X. Xxxxx III |
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Title: |
Authorized Officer |
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Flexsys America L.P.
By: Flexsys America Co.,
Its General Partner
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By: |
/s/ Xxxx X. Xxxxx III |
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Name: |
Xxxx X. Xxxxx III |
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Title: |
Authorized Officer |
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SE Investment LLC
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By: |
Monchem International, Inc.
Its Member
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By: |
/s/ Xxxx X. Xxxxx III |
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Name: |
Xxxx X. Xxxxx III |
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Title: |
Authorized Officer |
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TRUSTEE:
The Bank of New York Mellon Trust Company,
N.A.
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By: |
/s/ X. Xxxxxxxx |
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Name: |
X. Xxxxxxxx |
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Title: |
Vice President |
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A-2
EXHIBIT A
[FORM OF FACE OF NOTE]
CUSIP No. 834376 AL9
77/8% Senior Notes due 2020
Solutia Inc., a Delaware corporation, promises to pay to [ ], or registered
assigns, the principal sum of [ ] Dollars ($[ ]) on March 15, 2020.
Interest Payment Dates: March 15 and September 15.
Record Dates: March 1 and September 1.
Additional provisions of this Note are set forth on the other side of this Note.
Dated:
TRUSTEE’S CERTIFICATE OF
AUTHENTICATION
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THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.
as Trustee, certifies that this is one
of
the [Global]
Notes referred to in the
within mentioned Indenture. |
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A-1
[GLOBAL NOTE LEGEND]
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE)
OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE
TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06 OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
ISSUER.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY,
A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-2
[FORM OF REVERSE SIDE OF NOTE]
77/8% Senior Notes due 2020
Capitalized terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.
1. Interest
Solutia Inc., a Delaware corporation (such corporation, and its successors and assigns
under the Indenture hereinafter referred to, being herein called the “
Issuer”), promises to
pay interest on the principal amount of this Note at the rate per annum shown above. The
Issuer will pay interest semi-annually in arrears on March 15 and September 15 of each year,
or, if such date is not a Business Day, on the next succeeding Business Day (each, an
“
Interest Payment Date”), commencing [September 15, 2010]
1. Interest
on the Notes will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance of this Note. The Issuer shall pay
interest on overdue principal and premium, if any, and interest on overdue installments of
interest, to the extent lawful, at a rate that is 1% per annum in excess of the rate then in
effect. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment
The Issuer will pay interest on the Notes to the Persons who are registered Holders of
Notes at the close of business on the March 1 or September 1 next preceding the Interest
Payment Date, even if such Notes are canceled after such record date and on or before such
Interest Payment Date, except with respect to defaulted interest. The Notes will be payable
as to principal, premium and interest at the office or agency of the Issuer maintained for
such purpose within or without the City and State of New York, or, at the option of the
Issuer, payment of interest may be made by check mailed to the Holders at their addresses
set forth in the register of Holders, and provided that payment by wire transfer of
immediately available funds will be required with respect to principal of and interest and
premium on all Global Notes and all other Notes the Holders of which shall have provided
wire transfer instructions no later than 30 days immediately preceding the relevant due date
for payment (or such other date as the Trustee may accept in its judgment), to the Issuer or
the Paying Agent. Such payment shall be in such coin or currency of the United States of
America at the time of payment is legal tender for payment of public and private debts.
3. Paying Agent and Registrar
Initially, The Bank of New York Mellon Trust Company, N.A. (the “Trustee”), will act as
Paying Agent and Registrar. The Issuer may appoint and change any Paying Agent or Registrar
without notice to any holder. The Issuer or any of its Subsidiaries may act as Paying Agent
or Registrar.
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In the case of Notes issued on the Issue Date. |
A-3
4. Indenture
The Issuer issued the Notes under an Indenture dated as of October 15, 2009, as
supplemented by that Second Supplemental Indenture dated March 9, 2010 (collectively, the
“Indenture”), each among the Issuer, the Guarantors and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb) as in effect
on the date of the Indenture (the “TIA”). Terms defined in the Indenture and not defined
herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all
such terms, and Holders are referred to the Indenture and the TIA for a statement of those
terms. To the extent any provision of this Note conflicts with the express provisions of
the Indenture, the provisions of the Indenture shall govern and be controlling.
The Issuer shall be entitled, subject to its compliance with Section 4.09 of the
Indenture, to issue Additional Notes pursuant to Section 2.13 of the Indenture. The Initial
Notes issued on the Issue Date and any Additional Notes will be treated as a single class
for all purposes under the Indenture.
5. Optional Redemption
Except as set forth below, the Issuer shall not be entitled to redeem the Notes prior
to March 15, 2015.
At any time prior to March 15, 2015, the Issuer may redeem all or a part of the Notes
(which includes Additional Notes, if any), at a redemption price equal to 100% of the
principal amount of Notes redeemed plus the Applicable Premium as of, and accrued and unpaid
interest, if any, to the date of redemption (the “Redemption Date”), subject to the rights
of Holders of Notes on the relevant record date to receive interest due on the relevant
interest payment date.
On and after March 15, 2015, the Issuer shall be entitled at its option to redeem all
or a portion of the Notes at the redemption prices set forth below (expressed in percentages
of principal amount) set forth below, plus accrued and unpaid interest, if any, thereon to
the applicable Redemption Date (subject to the right of Holders of record on the relevant
date to receive interest due on the relevant interest payment date), if redeemed during the
twelve-month period beginning on March 15 on the years indicated below:
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Redemption |
Year |
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Price |
2015 |
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103.938 |
% |
2016 |
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102.625 |
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2017 |
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101.313 |
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2018 and thereafter |
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100.000 |
% |
In addition, at any time on or prior to March 15, 2013, the Issuer shall be entitled at
its option on one or more occasions to redeem Notes in an aggregate principal amount not to
exceed 35% of the aggregate principal amount of the Notes issued (which includes the
Additional Notes, if any) at a redemption price of 107.875% of the principal amount, plus
accrued and unpaid interest to the Redemption Date, with the Net Cash Proceeds from one or
more Equity Offerings; provided, however, that (1) at least 65% of such aggregate principal
amount of Notes (which includes the Additional Notes, if any) remains outstanding
immediately after the occurrence of each such
A-4
redemption (other than Notes held by the Issuer or its Subsidiaries); and (2) each such
redemption occurs within 90 days after the date of the closing of the related Equity
Offering.
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not more than 60 days before
the Redemption Date to each Holder to be redeemed at his or her registered address.
7. Repurchase at Option of Holder
If a Change of Control occurs, each Holder shall have the right to require that the
Issuer purchase all or a portion of such Holder’s Notes pursuant to the offer described in
the Indenture (the “Change of Control Offer”), at a purchase price equal to 101% of the
principal amount thereof plus accrued interest, if any, to the date of purchase (subject to
the right of holders of record on the relevant record date to receive interest due on an
interest payment date that is on or prior to the date fixed for redemption). Within 30 days
following the date upon which the Change of Control occurred, the Issuer must send, by first
class mail, a notice to each Holder, which notice shall govern the terms of the Change of
Control Offer and shall be in compliance with the Indenture. Holders electing to have a
Note purchased pursuant to a Change of Control Offer shall be required to surrender the
Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note
completed, to the Paying Agent at the address specified in the notice.
8. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in minimum denominations of $2,000
principal and integral multiples of $1,000 in excess thereof. A Holder may transfer or
exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among
other things, to furnish appropriate endorsements or transfer documents and to pay any taxes
and fees required by law or permitted by the Indenture. The Registrar need not register the
transfer of or exchange any Notes selected for redemption (except, in the case of a Note to
be redeemed in part, the portion of the Note not to be redeemed) or any Notes for a period
of 15 days before a selection of Notes to be redeemed or 15 days before an Interest Payment
Date.
9. Persons Deemed Owners
The registered Holder of this Note may be treated as the owner of it for all purposes.
10. Discharge and Defeasance
Subject to certain conditions, the Issuer at any time shall be entitled to terminate
some or all of its and the Guarantors’ obligations under the Notes and the Indenture if the
Issuer deposits with the Trustee money or U.S. Government Obligations for the payment of
principal and interest on the Notes to redemption or maturity, as the case may be.
11. Amendment, Waiver
Subject to certain exceptions, the Indenture, the Guarantees or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority in principal
amount of the then outstanding Notes voting as a single class (including consents obtained
in connection with a tender offer or exchange offer for, or purchase of, the Notes), and any
existing Default or Event
A-5
of Default (other than a Default or Event of Default in the payment of the principal
of, premium, if any, or interest on the Notes, except a payment default resulting from an
acceleration that has been rescinded) or compliance with any provision of the Indenture, the
Guarantees or the Notes may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes voting as a single class (including consents
obtained in connection with a tender offer or exchange offer for, or purchase of, the
Notes). Without the consent of any Holder, the Indenture, the Guarantees or the Notes may
be amended to cure any ambiguity, defect or inconsistency, to provide for uncertificated
Notes in addition to or in place of certificated Notes (provided that the uncertificated
Notes are issued in registered form for purposes of Section 163(f) of the Code; or in a
manner such that the uncertificated Notes are described in Section 163(f)(2)(B) of the
Code), to add a Guarantor, to release a Guarantor from its Guarantee when permitted by the
Indenture, to add to the covenants of the Issuer for the benefit of the noteholders or to
surrender any right or power conferred upon the Issuer, to comply with any requirement of
the SEC in connection with the qualifications of the Indenture under the TIA, to make any
other change that does not materially adversely affect the rights of any noteholder, to
conform the text of the Indenture to the Description of Notes contained in the Prospectus
Supplement, dated March 2, 2010 used to offer the Notes to prospective Holders, or make any
change in the amendment and waiver provisions of the Indenture.
12. Defaults and Remedies
Events of Default include: (i) default for 30 days in the payment when due of interest
on any Note; (ii) default in the payment when due of principal on any Note, whether upon
maturity, acceleration, optional redemption, required repurchase or otherwise; (iii) failure
to perform or comply with the covenants described in Section 4.13; (iv) failure to perform
or comply with any covenant, agreement or warranty in the Indenture (other than specified in
clauses (i), (ii) or (iii) above) which failure continues for 60 days after written notice
hereof has been given to the Issuer by the Trustee or to the Issuer and the Trustee by the
holders of at least 25% in aggregate principal amount of then outstanding Notes; (v) default
under any mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness for money borrowed by the Issuer or any
Restricted Subsidiary, whether such Indebtedness now exists or is created after the Issue
Date, which (A) is caused by a failure to pay such Indebtedness at Stated Maturity (after
giving effect to any grace period related thereto) (a “Payment Default”); or (b) results in
the acceleration of such Indebtedness prior to its Stated Maturity. In each case, the
principal amount of any such Indebtedness as to which a Payment Default or acceleration
shall have occurred, together with the principal amount of any other such Indebtedness under
which there has been a Payment Default or the maturity of which has been so accelerated,
aggregates $25.0 million or more; (vi) one or more final and non-appealable judgments,
orders or decrees for the payment of money of $25.0 million or more, individually or in the
aggregate, shall be entered against the Issuer or any Restricted Subsidiary or any of their
respective properties and which final and non-appealable judgments, orders or decrees are
not covered by third party indemnitees or insurance as to which coverage has not been
disclaimed and are not paid, discharged, bonded or stayed within 60 days after their entry;
(vii) a court having jurisdiction in the premises enters (x) a decree for order for relief
in respect of the Issuer or any of its Significant Subsidiaries in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or
similar law or (y) a decree or order adjudging the Issuer or any of its Significant
Subsidiaries a bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the Issuer or any
of its Significant Subsidiaries under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Issuer or any of its Significant Subsidiaries or of any substantial part of its
property, or ordering the
A-6
winding up or liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in effect for a period of 60
consecutive days; (viii) the Issuer or any of its Significant Subsidiaries: commences a
voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or any other case or proceeding to be adjudicated a
bankrupt or insolvent; or consents to the entry of a decree or order for relief in respect
of the Issuer or any of its Significant Subsidiaries in an involuntary case or proceeding
under any applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or proceeding
against the Issuer or any of its Significant Subsidiaries; or files a petition or answer or
consent seeking reorganization or relief under any applicable federal or state law; or
consents to the filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the
Issuer or any of its Significant Subsidiaries or any of any substantial part of its
property; or makes an assignment for the benefit of creditors; or admits in writing its
inability to pay its debts generally as they become due; or takes corporate action in
furtherance of any such action; or (ix) the Guarantee of any Guarantor that is a Significant
Subsidiary ceases to be in full force and effect (other than in accordance with the terms of
such Guarantee and the Indenture) or is declared null and void and unenforceable or is found
invalid or any Guarantor denies its liability under its Guarantee (other than by reason of
release of a Guarantor from its Guarantee in accordance with the terms of the Indenture and
the Guarantee). If any Event of Default occurs and is continuing, the Trustee or the Holders
of at least 25% in principal amount of the then outstanding Notes may declare all the Notes
to be due and payable by notice in writing to the Issuer and the Trustee specifying the
respective Event of Default and that it is a “notice of acceleration”, and the same shall
become immediately due and payable. Holders may not enforce the Indenture or the Notes
except as provided in the Indenture and the Trust Indenture Act. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding Notes may
direct the Trustee in its exercise of any trust or power. The Holders of a majority in
aggregate principal amount of the Notes may direct the time, method and place of conducting
any proceeding for exercising any remedy available to the Trustee or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or the Indenture and the Trustee determines may be unduly prejudicial to
the rights of other Holders of Notes or that may involve the Trustee in personal liability.
The Issuer is required to deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Issuer is required upon becoming aware of any Default or Event
of Default, to deliver to the Trustee a statement specifying such Default or Event of
Default.
13. Guarantee
The full and punctual payment by the Issuer of the principal of, premium, if any, and
interest on the Notes is fully and unconditionally guaranteed on a joint and several senior
unsecured basis by each of the Guarantors.
14. Trustee Dealings with the Issuer
Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of Notes and may
otherwise deal with and collect obligations owed to it by the Issuer or its Affiliates and
may make loans to, accept deposits from, and perform services for the Issuer or its
Affiliates, and may otherwise deal with the Issuer or its Affiliates, as if it were not the
Trustee.
A-7
15. No Recourse Against Others
Any past, present, or future director, officer, employee, incorporator or stockholder,
as such, of the Issuer, any Guarantors or the Trustee shall not have any liability for any
obligations of the Issuer or any Guarantor under the Notes, the Indenture, the Guarantees or
for any claim based on, in respect of or by reason of such obligations or their creation.
By accepting a Note, each Holder waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Notes.
16. Authentication
This Note shall not be valid until an authorized signatory of the Trustee (or an
authenticating agent) signs the certificate of authentication on the other side of this
Note.
17. Abbreviations
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN
COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with
rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A
(=Uniform Gift to Minors Act).
18. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures the Issuer has caused CUSIP numbers to be printed on the Notes and
has directed the Trustee to use CUSIP numbers in notices of redemption as a convenience to
Holders. No representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
19. Governing Law
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS
NOTE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Issuer will furnish to any Holder upon written request and without charge to the Holder a
copy of the Indenture. Requests may be made to:
Solutia Inc.
000 Xxxxxxxxx Xxxxxx Xxxxx
X.X. Xxx 00000
Xx. Xxxxx, XX 00000-0000
Attention: Chief Financial Officer
A-8
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee’s name, address and zip code)
(Insert assignee’s soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Issuer. The agent may
substitute another to act for him.
Sign exactly as your name appears on the other side of this Note.
Signature Guarantee:
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Signature must be guaranteed
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Signature |
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements
of the Registrar, which requirements include membership or participation in the Security Transfer
Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined
by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-9
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
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Amount of |
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Amount of |
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Principal amount |
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decrease in |
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increase in |
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of this Global |
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Signature of |
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Principal amount |
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Principal amount |
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Note following |
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authorized officer |
Date of |
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of this Global |
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of this Global |
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such decrease or |
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of Trustee or |
Exchange |
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Note |
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Note |
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increase |
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Custodian |
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A-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to either Section 4.10
or Section 4.13 of the Indenture, as applicable, check the corresponding box:
Section 4.10 o Section 4.13 o
If you want to elect to have only part of this Note purchased by the Issuer pursuant to
Section 4.10 or Section 4.13 of the Indenture, as applicable, state the amount in principal
amount: $
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Dated:
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Your Signature: |
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(Sign exactly as your name appears
on the other side of this Note.) |
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Signature Guarantee: |
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(Signature must be guaranteed)
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Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements
of the Registrar, which requirements include membership or participation in the Security Transfer
Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined
by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-11
EXHIBIT B
FORM OF GUARANTEE
For value received, each Guarantor (which term includes any successor Person under the
Indenture), jointly and severally, unconditionally guarantees, to the extent set forth in and
subject to the provisions in the Indenture, dated as of October 15, 2009, as supplemented by that
Second Supplemental Indenture dated as of March 9, 2010 (collectively, the “
Indenture”), among
Solutia Inc., as issuer (the “
Issuer”), the Guarantors from time to time party thereto and The Bank
of New York Mellon Trust Company, N.A., as trustee (the “
Trustee”), (a) the full and punctual
payment of the principal of and interest on the Notes when due, whether at maturity, by
acceleration, redemption or otherwise, and all other monetary obligations of the Issuer under the
Indenture and the Notes and (b) the full and punctual performance within applicable grace periods
of all other obligations of the Issuer under the Indenture and the Notes (all the foregoing being
hereinafter collectively called the “
Guaranteed Obligations”). Each Guarantor further agrees that
the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or
further assent from such Guarantor and that such Guarantor will remain bound hereunder
notwithstanding any extension or renewal of any Guaranteed Obligation.
The obligations of the Guarantors to the Holders of Notes and to the Trustee pursuant to the
Guarantee and the Indenture are expressly set forth in Article 11 of the Indenture and reference is
hereby made to the Indenture for the precise terms of the Guarantee. Each Holder, by accepting the
same agrees to and shall be bound by such provisions. This Guarantee is subject to release as and
to the extent set forth in Sections 8.02, 8.03, 8.06 and 11.06 of the Indenture. Capitalized terms
used herein and not defined are used herein as so defined in the Indenture.
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[GUARANTOR]
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By: |
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Name: |
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Title: |
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B-1