EXHIBIT 4.3
WH ACQUISITION CORP.
(as Issuer)
WH INTERMEDIATE HOLDINGS LTD.
WH LUXEMBOURG HOLDINGS SaRL
WH LUXEMBOURG INTERMEDIATE HOLDINGS SaRL
WH LUXEMBOURG CM SaRL
(as Guarantors)
11 3/4% Senior Subordinated Notes due 2010
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INDENTURE
Dated as of June 27, 2002
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THE BANK OF NEW YORK
(as Trustee)
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE........................................2
SECTION 1.1 DEFINITIONS..............................................................2
SECTION 1.2 OTHER DEFINITIONS.......................................................31
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.......................32
SECTION 1.4 RULES OF CONSTRUCTION...................................................32
ARTICLE II THE NOTES........................................................................33
SECTION 2.1 FORM AND DATING.........................................................33
SECTION 2.2 EXECUTION AND AUTHENTICATION............................................34
SECTION 2.3 REGISTRAR, PAYING AGENT AND DEPOSITARY..................................34
SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST.....................................34
SECTION 2.5 HOLDER LISTS............................................................35
SECTION 2.6 TRANSFER AND EXCHANGE...................................................35
SECTION 2.7 REPLACEMENT NOTES.......................................................46
SECTION 2.8 OUTSTANDING NOTES.......................................................46
SECTION 2.9 TREASURY NOTES..........................................................46
SECTION 2.10 TEMPORARY NOTES.........................................................47
SECTION 2.11 CANCELLATION............................................................47
SECTION 2.12 DEFAULTED INTEREST......................................................47
SECTION 2.13 CUSIP NUMBERS...........................................................48
SECTION 2.14 ISSUANCE OF ADDITIONAL NOTES............................................48
ARTICLE III REDEMPTION.......................................................................48
SECTION 3.1 NOTICES TO TRUSTEE......................................................48
SECTION 3.2 SELECTION OF NOTES TO BE REDEEMED.......................................48
SECTION 3.3 NOTICE OF REDEMPTION....................................................49
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION..........................................50
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE.............................................50
SECTION 3.6 NOTES REDEEMED IN PART..................................................50
SECTION 3.7 OPTIONAL REDEMPTION.....................................................50
SECTION 3.8 MANDATORY REDEMPTION....................................................51
ARTICLE IV COVENANTS........................................................................52
SECTION 4.1 PAYMENT OF NOTES........................................................52
SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY.........................................52
SECTION 4.3 SEC REPORTS AND REPORTS TO HOLDERS......................................52
SECTION 4.4 COMPLIANCE CERTIFICATE..................................................53
SECTION 4.5 TAXES...................................................................53
SECTION 4.6 STAY, EXTENSION AND USURY LAWS..........................................54
SECTION 4.7 LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS AND DISQUALIFIED
CAPITAL STOCK...........................................................54
SECTION 4.8 LIMITATION ON LIENS.....................................................55
SECTION 4.9 LIMITATION ON RESTRICTED PAYMENTS.......................................56
SECTION 4.10 LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES............................................................58
SECTION 4.11 LIMITATION ON LINES OF BUSINESS ........................................59
SECTION 4.12 LIMITATION ON TRANSACTIONS WITH AFFILIATES..............................60
SECTION 4.13 LIMITATION ON SALE OF ASSETS AND SUBSIDIARY STOCK.......................60
SECTION 4.14 REPURCHASE OF NOTES AT THE OPTION OF THE HOLDER UPON A CHANGE OF
CONTROL.................................................................63
ii
SECTION 4.15 ........................................................................64
SECTION 4.16 LIMITATION ON LAYERING..................................................65
SECTION 4.17 FUTURE GUARANTORS.......................................................65
SECTION 4.18 LIMITATION ON STATUS AS INVESTMENT COMPANY..............................66
SECTION 4.19 MAINTENANCE OF PROPERTIES AND INSURANCE.................................66
SECTION 4.20 CORPORATE EXISTENCE.....................................................66
SECTION 4.21 LIMITATION ON ABILITY OF COMPANY TO RELEASE FUNDS FROM SECURED
PROCEEDS ACCOUNT........................................................67
SECTION 4.22 LIMITATION ON ACTIVITIES PRIOR TO CONSUMMATION OF THE MERGER............67
ARTICLE V SUCCESSORS.......................................................................67
SECTION 5.1 MERGER, CONSOLIDATION OR SALE OF ASSETS OF THE COMPANY..................67
SECTION 5.2 SUCCESSOR CORPORATION SUBSTITUTED.......................................68
SECTION 5.3 MERGER, CONSOLIDATION OR SALE OF ASSETS OF PARENT.......................68
SECTION 5.4 SUCCESSOR CORPORATION SUBSTITUTED FOR THE PARENT........................69
ARTICLE VI DEFAULTS AND REMEDIES ...........................................................69
SECTION 6.1 EVENTS OF DEFAULT.......................................................69
SECTION 6.2 ACCELERATION............................................................70
SECTION 6.3 OTHER REMEDIES..........................................................72
SECTION 6.4 WAIVER OF PAST DEFAULTS.................................................72
SECTION 6.5 CONTROL BY MAJORITY.....................................................72
SECTION 6.6 LIMITATION ON SUITS ....................................................73
SECTION 6.7 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT...........................73
SECTION 6.8 COLLECTION SUIT BY TRUSTEE..............................................73
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM........................................73
SECTION 6.10 PRIORITIES..............................................................74
SECTION 6.11 UNDERTAKING FOR COSTS...................................................74
ARTICLE VII TRUSTEE..........................................................................75
SECTION 7.1 DUTIES OF TRUSTEE ......................................................75
SECTION 7.2 RIGHTS OF TRUSTEE.......................................................76
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE ...........................................77
SECTION 7.4 TRUSTEE'S DISCLAIMER ...................................................77
SECTION 7.5 NOTICE OF DEFAULTS......................................................77
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES..............................77
SECTION 7.7 COMPENSATION AND INDEMNITY..............................................78
SECTION 7.8 REPLACEMENT OF TRUSTEE..................................................78
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC........................................79
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION...........................................79
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.......................80
ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE.........................................80
SECTION 8.1 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE ...............80
SECTION 8.2 LEGAL DEFEASANCE AND DISCHARGE .........................................80
SECTION 8.3 COVENANT DEFEASANCE.....................................................80
SECTION 8.4 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE..............................81
SECTION 8.5 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST; OTHER
MISCELLANEOUS PROVISIONS................................................82
SECTION 8.6 REPAYMENT TO COMPANY....................................................82
SECTION 8.7 REINSTATEMENT...........................................................83
ARTICLE IX AMENDMENT, SUPPLEMENT AND WAIVER.................................................83
iii
SECTION 9.1 WITHOUT CONSENT OF HOLDERS OF NOTES.....................................83
SECTION 9.2 WITH CONSENT OF HOLDERS OF NOTES........................................84
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT.....................................85
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS.......................................85
SECTION 9.5 NOTATION ON OR EXCHANGE OF NOTES........................................86
SECTION 9.6 TRUSTEE TO SIGN AMENDMENTS, ETC.........................................86
ARTICLE X GUARANTEES.......................................................................86
SECTION 10.1 GUARANTEES..............................................................86
SECTION 10.2 EXECUTION AND DELIVERY OF GUARANTEES....................................88
SECTION 10.3 GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS......................88
SECTION 10.4 RELEASE OF GUARANTORS...................................................89
SECTION 10.5 LIMITATION OF GUARANTOR'S LIABILITY; CERTAIN BANKRUPTCY EVENTS..........90
SECTION 10.6 APPLICATION OF CERTAIN TERMS AND PROVISIONS TO THE GUARANTORS...........90
SECTION 10.7 SUBORDINATION OF GUARANTEES.............................................91
ARTICLE XI SUBORDINATION....................................................................91
SECTION 11.1 NOTES SUBORDINATED TO SENIOR DEBT.......................................91
SECTION 11.2 NO PAYMENT ON NOTES IN CERTAIN CIRCUMSTANCES............................91
SECTION 11.3 NOTES SUBORDINATED TO PRIOR PAYMENT OF ALL SENIOR DEBT ON DISSOLUTION,
LIQUIDATION OR REORGANIZATION...........................................92
SECTION 11.4 HOLDERS TO BE SUBROGATED TO RIGHTS OF HOLDERS OF SENIOR DEBT............93
SECTION 11.5 RELATIVE RIGHTS.........................................................93
SECTION 11.6 TRUSTEE ENTITLED TO ASSUME PAYMENTS NOT PROHIBITED
IN ABSENCE OF NOTICE....................................................93
SECTION 11.7 APPLICATION BY TRUSTEE OF ASSETS DEPOSITED WITH IT......................94
SECTION 11.8 SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR
OMISSIONS OF THE COMPANY, THE GUARANTORS OR HOLDERS
OF SENIOR DEBT..........................................................94
SECTION 11.9 HOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE
SUBORDINATION OF NOTES..................................................94
SECTION 11.10 RIGHT OF TRUSTEE TO HOLD SENIOR DEBT....................................95
SECTION 11.11 ARTICLE XI NOT TO PREVENT EVENTS OF DEFAULT.............................95
SECTION 11.12 NO FIDUCIARY DUTY OF TRUSTEE TO HOLDERS OF SENIOR DEBT..................95
ARTICLE XII MISCELLANEOUS....................................................................95
SECTION 12.1 TRUST INDENTURE ACT CONTROLS............................................95
SECTION 12.2 NOTICES.................................................................96
SECTION 12.3 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER
HOLDERS OF NOTES .......................................................97
SECTION 12.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT......................97
SECTION 12.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION...........................97
SECTION 12.6 RULES BY TRUSTEE AND AGENTS ............................................97
SECTION 12.7 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS..............................................98
SECTION 12.8 GOVERNING LAW ..........................................................98
SECTION 12.9 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS ..........................98
SECTION 12.10 SUCCESSORS .............................................................98
SECTION 12.11 SEVERABILITY ...........................................................98
SECTION 12.12 COUNTERPART ORIGINALS...................................................98
SECTION 12.13 TABLE OF CONTENTS, HEADINGS, ETC........................................98
iv
EXHIBIT A [FORM OF NOTE]..........................................................................A-1
EXHIBIT BFORM OF CERTIFICATE OF TRANSFER..........................................................B-1
EXHIBIT CFORM OF CERTIFICATE OF EXCHANGE..........................................................C-1
EXHIBIT DFORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR.....................D-1
EXHIBIT EFORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS..................E-1
EXHIBIT FFORM OF SECURITY AGREEMENT...............................................................F-1
EXHIBIT GFORM OF SUPPORT AGREEMENT TO BE DELIVERED BY WHITNEY V, L.P..............................G-1
EXHIBIT HFORM OF SUPPORT AGREEMENT TO BE DELIVERED BY CCG INVESTMENTS (BVI), L.P..................H-1
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PAGE
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EXHIBIT I
FORM OF MONITORING FEES AGREEMENT AMONG HOLDINGS, THE COMPANY AND WHITNEY & CO., LLC ...I-1
EXHIBIT J
FORM OF MONITORING FEES AGREEMENT AMONG HOLDINGS, THE COMPANY AND GGC
ADMINISTRATION, LLC...............................................................................J-1
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CROSS-REFERENCE TABLE*
TIA SECTION INDENTURE SECTION
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310(a)(1)........................................................................................7.10
(a)(2)......................................................................................7.10
(a)(3)......................................................................................N.A.
(a)(4)......................................................................................N.A.
(a)(5).................................................................................7.8; 7.10
(b)..............................................................................7.8; 7.10; 12.2
(c).........................................................................................N.A.
311(a)...........................................................................................7.11
(b).........................................................................................7.11
(c).........................................................................................N.A.
312(a)............................................................................................2.5
(b).........................................................................................12.3
(c).........................................................................................12.3
313(a)............................................................................................7.6
(b)(1)......................................................................................N.A.
(b)(2).......................................................................................7.6
(c)....................................................................................7.6; 12.2
(d)..........................................................................................7.6
314(a).................................................................................4.3; 4.4; 12.2
(b).........................................................................................N.A.
(c)(1)......................................................................................12.4
(c)(2)......................................................................................12.4
(c)(3)......................................................................................N.A.
(d).........................................................................................N.A.
(e).........................................................................................12.5
(f).........................................................................................N.A.
315(a).........................................................................................7.1(b)
(b)....................................................................................7.5; 12.2
(c).......................................................................................7.1(a)
(d).......................................................................................7.1(c)
(e).........................................................................................6.11
316(a)(last sentence).............................................................................2.9
(a)(1)(A)....................................................................................6.5
(a)(1)(B)....................................................................................6.4
(a)(2)......................................................................................N.A.
(b)..........................................................................................6.7
(c)..........................................................................................6.4
317(a)(1).........................................................................................6.8
(a)(2).......................................................................................6.9
(b)..........................................................................................2.4
318(a)...........................................................................................12.1
(c).........................................................................................12.1
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N.A. means not applicable
*This Cross-Reference table shall not, for any purpose, be deemed to be part of
this Indenture.
1
INDENTURE, dated as of June 27, 2002, among WH Acquisition Corp. and, upon
consummation of the Merger (as defined herein), Herbalife International, Inc., a
Nevada corporation (the "Company"), the Guarantors (as defined herein), and The
Bank of New York, as trustee (the "Trustee").
Pursuant to the Agreement and Plan of Merger, dated as of April 10, 2002,
by and among WH Holdings (Cayman Islands) Ltd. (" Holdings"), the Company, and
Herbalife International, Inc., the Company will be merged with and into
Herbalife International, Inc., with Herbalife International, Inc. as the
surviving corporation (the "Merger"). Upon consummation of the Merger, Herbalife
International, Inc. will assume the Company's obligations under this Indenture
and will cause its subsidiaries to become Guarantors to the extent required by
this Indenture.
Each party agrees as follows for the benefit of each other and for the
equal and ratable benefit of the Holders of the 11 3/4% Senior Subordinated
Notes due 2010 issued hereunder (the "Notes"):
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.1 Definitions
"144A Global Note" means one or more Global Notes bearing the
Private Placement Legend, that shall be issued in an aggregate amount of
denominations equal in total to the outstanding principal amount of the Notes
sold in reliance on Rule 144A.
"Accrued Bankruptcy Interest" means, with respect to any
Indebtedness, all interest accruing thereon after the filing of a petition by or
against the Company or the Parent or any Subsidiary of the Company or the Parent
under any Bankruptcy Law, in accordance with and at the rate (including any rate
applicable upon any default or event of default, to the extent lawful) specified
in the documents evidencing or governing such Indebtedness, whether or not the
claim for such interest is allowed as a claim after such filing in any
proceeding under such Bankruptcy Law.
"Acquired Indebtedness" means Indebtedness (including Disqualified
Capital Stock) of any Person existing at the time such Person becomes a
Subsidiary of the Company or the Parent, including by designation, or is merged
or consolidated into or with the Company or the Parent or a Subsidiary of the
Company or the Parent.
"Acquisition" means the purchase or other acquisition of any Person
or all or substantially all the assets of any Person by any other Person,
whether by purchase, merger, consolidation, or other transfer, and whether or
not for consideration.
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. For
purposes of this definition, the term "control" means the power to direct the
2
management and policies of a Person, directly or through one or more
intermediaries, whether through the ownership of voting securities, by contract,
or otherwise; provided, that with respect to ownership interests in the Company
and its Subsidiaries, a Beneficial Owner of 10% or more of the total voting
power normally entitled to vote in the election of directors, managers or
trustees, as applicable, shall for such purposes be deemed to possess control.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Leverage Ratio" means, (1) with respect to any
Incurrence Date on or prior to December 31, 2002, 4.00 to 1.0, (2) with respect
to any Incurrence Date after December 31, 2002 and on or prior to December 31,
2003, 3.50 to 1.0, (3) with respect to any Incurrence Date after December 31,
2003 and on or prior to December 31, 2004, 3.00 to 1.0, and (4) with respect to
any Incurrence Date after December 31, 2004, 2.50 to 1.0.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Clearstream that apply to such
transfer or exchange at the relevant time.
"Applicable Tax Rate" means, in respect of any particular Tax
Determination Year, a percentage equal to the highest marginal United States
federal income tax rate applicable to an individual in respect of such Tax
Determination Year as determined by the Tax Amounts CPA.
"Asset Disposition" means (a) any conveyance, sale, lease, sublease,
assignment, transfer or other disposition (including by way of merger or
consolidation and including any sale and leaseback transaction) of any property
(including stock of any of Parent's Subsidiaries by the holder thereof) by
Parent or any of its Subsidiaries to any person other than Holdings and its
Subsidiaries party to the Credit Agreement (other than sales and other
dispositions of inventory in the ordinary course of business) and (b) any
issuance or sale by any Subsidiary of Parent of its Equity Interests to any
person other than Holdings and its Subsidiaries party to the Credit Agreement.
"Attributable Indebtedness" means, when used with respect to any
sale and leaseback transaction, as at the time of determination, the present
value (discounted at a rate equivalent to the Company's then-current
weighted-average cost of funds for borrowed money as at the time of
determination, compounded on a semi-annual basis) of the total obligations of
the lessee for rental payments during the remaining term of the lease included
in any such sale and leaseback transaction.
"Average Life" means, as of the date of determination, with respect
to any security or instrument, the quotient obtained by dividing (1) the sum of
the products (a) of the number of years from the date of determination to the
date or dates of each successive scheduled principal (or redemption) payment of
such security or instrument and (b) the amount of each such respective principal
(or redemption) payment by (2) the sum of all such principal (or redemption)
payments.
"Bankruptcy Code" means the United States Bankruptcy Code, codified
at 11 U.S.C. Section 101-1330, as amended.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar Federal,
state or foreign law for the relief of debtors.
"Beneficial Owner" or "beneficial owner" for purposes of the
definition of Change of Control and Affiliate has the meaning attributed to it
in Rules 13d-3 and 13d-5 under the Exchange Act (as in effect on the Issue
Date), whether or not applicable.
3
"Board of Directors" means, with respect to any Person, the board of
directors (or if such Person is not a corporation, the equivalent board of
managers or members or body performing similar functions for such Person) of
such Person or any committee of the Board of Directors of such Person
authorized, with respect to any particular matter, to exercise the power of the
board of directors of such Person.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York, New York
are authorized or obligated by law or executive order to close.
"Capital Contribution" means any contribution to the equity of the
Company from the Parent or Holdings for which no consideration other than the
issuance of Qualified Capital Stock is given.
"Capital Expenditures" means, with respect to any person, for any
period, the aggregate of all expenditures of such person and its Consolidated
Subsidiaries for the acquisition of fixed or capital assets which should be
capitalized under GAAP on a consolidated balance sheet of such person and its
Consolidated Subsidiaries. Notwithstanding the foregoing, Capital Expenditures
shall not include (i) expenditures with Proceeds from Asset Dispositions (other
than through leases), to the extent such expenditures do not exceed the book
value of such assets, and (ii) expenditures of Proceeds from a Casualty Event.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Capital Stock" means, with respect to any corporation, any and all
shares, interests, rights to purchase (other than convertible or exchangeable
Indebtedness that is not itself otherwise capital stock), warrants, options,
participations or other equivalents of or interests (however designated) in
stock issued by that corporation.
"Cash Equivalent" means:
(1) securities issued or directly and fully guaranteed or insured by
the United States of America or any agency or instrumentality thereof (provided,
that the full faith and credit of the United States of America is pledged in
support thereof),
(2) demand deposits, time deposits and certificates of deposit and
commercial paper issued by the parent corporation of any domestic commercial
bank of recognized standing having capital and surplus in excess of
$500,000,000,
(3) commercial paper issued by others rated at least A-2 or the
equivalent thereof by Standard & Poor's Corporation or at least P-2 or the
equivalent thereof by Xxxxx'x Investors Service, Inc.,
(4) repurchase obligations having terms not more than seven days,
with institutions meeting the criteria set forth in clause (2) above, for direct
4
obligations issued by or fully guaranteed by the United States of America
(provided, that the full faith and credit of the United States of America is
pledged in support thereof), having, on the date of purchase thereof, a fair
market value of at least 100% of the amount of repurchase obligations,
(5) interests in money market or mutual funds all of whose assets
are invested in assets or securities of the type described in clauses (1)
through (4) above,
(6) with respect to Investments by any Foreign Subsidiary, any
demand deposit account,
(7) direct investments in tax exempt obligations of any state of the
United States of America, or any municipality of any such state, in each case
rated "AA" or better by Standard & Poor's Rating Service, "Aa2" or better by
Xxxxx'x Investor Service, Inc. or an equivalent rating by any other credit
rating agency of recognized national standing, provided that such obligations
mature within six months from the date of acquisition thereof, and
(8) investments in mutual funds or variable rate notes that invest
in tax exempt obligations of the types described in clause (7) above,
and in the case of each of (1) and (2) maturing within one year
after the date of acquisition.
"Casualty Event" means, with respect to any property (including Real
Property) of any person, any loss of title with respect to such property or any
loss of or damage to or destruction of, or any condemnation or other taking
(including by any Governmental Authority) of, such property for which such
person or any of its subsidiaries receives insurance proceeds or proceeds of a
condemnation award or other compensation. "Casualty Event" includes any taking
of all or any part of any Real Property of any person or any part thereof, in or
by condemnation or other eminent domain proceedings pursuant to any law, or by
reason of the temporary requisition of the use or occupancy of all or any part
of any Real Property of any person or any part thereof by any Governmental
Authority, civil or military.
"CL Obligations" of any person means the obligations of such person
to pay rent or other amounts under any lease of (or other arrangement conveying
the right to use) real or personal property, or a combination thereof, which
obligations are required to be classified and accounted for as capital leases on
a balance sheet of such person under GAAP, and the amount of such obligations
shall be the capitalized amount thereof determined in accordance with GAAP.
5
"CNI" means, with respect to any person for any period, the
consolidated net after tax income of such person and its Consolidated
Subsidiaries determined in accordance with GAAP, reduced by the amount of any
Tax Amounts Payment made during such period, but excluding in any event (a) net
earnings or loss of any other person (other than a Subsidiary of Holdings) in
which such person or any of its Consolidated Subsidiaries has an ownership
interest, except (in the case of any such net earnings) to the extent such net
earnings shall have actually been received by such person or any of its
Consolidated Subsidiaries (subject to the limitation in clause (b) below) in the
form of cash distributions, (b) any portion of the net earnings of any of such
person's Consolidated Subsidiaries that is unavailable for payment of dividends
to such person or any other of its Consolidated Subsidiaries by reason of the
provisions of any agreement or applicable law or regulation, and (c) the income
(or loss) of any other person accrued prior to the date it becomes a Subsidiary
of such person or any of its Consolidated Subsidiaries or is merged into or
consolidated with such person or any of its Consolidated Subsidiaries or that
other person's assets are acquired by such person or its Consolidated
Subsidiaries (other than pursuant to the Merger).
"Change of Control" means:
(1) prior to consummation of an Initial Public Offering the
Principals and their Related Parties shall cease to beneficially own at least
51% of the voting power of the Voting Equity Interests of the Parent;
(2) the Parent shall cease to beneficially own at least 80% of the
voting power of the Voting Equity Interests of the Company;
(3) following the consummation of an Initial Public Offering, (A)
any merger or consolidation of the Parent or the Company with or into any Person
or any sale, transfer or other conveyance, whether direct or indirect, of all or
substantially all of the assets of the Parent or the Company, respectively, on a
consolidated basis, in one transaction or a series of related transactions, if,
immediately after giving effect to such transaction(s), any "person" (including
any group that is deemed to be a "person") (other than the Principals and their
Related Parties, or, in the case of the Company, the Parent or any Wholly-Owned
Subsidiary of the Parent) is or becomes the "beneficial owner," directly or
indirectly, of more than 35% of voting power of the aggregate Voting Equity
Interests of the transferee(s) or surviving entity or entities, (B) any "person"
(including any group that is deemed to be a "person") (other than the Principals
and their Related Parties, or, in the case of the Company, the Parent or any
Wholly-Owned Subsidiary of the Parent) is or becomes the "beneficial owner,"
directly or indirectly, of more than 35% of the voting power of the aggregate
Voting Equity Interests of the Company or
6
the Parent, or (C) the Continuing Directors cease for any reason to constitute a
majority of the Parent's Board of Directors then in office.
"Clearstream" means Clearstream Banking Luxembourg, or its
successors.
"Code" means the Internal Revenue Code of 1986, as amended.
"Consolidated Cash Flow" means, with respect to any person for any
period, CNI for such period, adjusted, in each case only to the extent (and in
the same proportion) deducted in determining CNI (and with respect to the
portion of CNI attributable to any Subsidiary of Parent only to the extent a
corresponding amount would be permitted at the date of determination to be
distributed to the Company by such Subsidiary without prior approval (that has
not been obtained), pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to such Subsidiary or its stockholders), by (x) adding
thereto (i) the amount of Consolidated Interest Expense, (ii) provision for
taxes based on income, (iii) any Tax Amounts Payment made during such period,
(iv) amortization, (v) depreciation, (vi) all other noncash items subtracted in
determining CNI (including, without limitation, any noncash compensation charge
arising from any grant of stock, stock options or other equity-based awards of
such Person or any of its Subsidiaries and noncash losses or charges related to
impairment of goodwill and other intangible assets and excluding any noncash
charge that results in an accrual of a reserve for cash charges in any future
period) for such period, (vii) nonrecurring expenses and charges of the Company
and Herbalife International, Inc., related to the Merger and Merger Financing
Transactions; and (y) subtracting therefrom (i) dividends paid to Holdings for
the purpose of paying its operating expenses incurred in the ordinary course of
business and other corporate overhead costs and expenses (including legal and
accounting expenses and similar expenses) and (ii) the aggregate amount of all
noncash items, determined on a consolidated basis, to the extent such items were
added in determining CNI for such period.
"Consolidated Coverage Ratio" of any Person on any date of
determination (the "Transaction Date") means the ratio, on a pro forma basis, of
(a) the aggregate amount of Consolidated EBITDA of such Person attributable to
continuing operations and businesses (exclusive of amounts attributable to
operations and businesses permanently discontinued or disposed of) for the
Reference Period to (b) the aggregate Consolidated Fixed Charges of such Person
(exclusive of amounts attributable to operations and businesses permanently
discontinued or disposed of, but only to the extent that the obligations giving
rise to such Consolidated Fixed Charges would no longer be obligations
contributing to such Person's Consolidated Fixed Charges subsequent to the
Transaction Date) during the Reference Period; provided, that for purposes of
such calculation:
7
(9) Acquisitions which occurred during the Reference Period or
subsequent to the Reference Period and on or prior to the Transaction Date shall
be assumed to have occurred on the first day of the Reference Period,
(10) transactions giving rise to the need to calculate the
Consolidated Coverage Ratio shall be assumed to have occurred on the first day
of the Reference Period,
(11) the incurrence of any Indebtedness (including issuance of any
Disqualified Capital Stock) during the Reference Period or subsequent to the
Reference Period and on or prior to the Transaction Date (and the application of
the proceeds therefrom to the extent used to refinance or retire other
Indebtedness) (other than Indebtedness incurred under any revolving credit
facility) shall be assumed to have occurred on the first day of the Reference
Period, and
(12) the Consolidated Fixed Charges of such Person attributable to
interest on any Indebtedness or dividends on any Disqualified Capital Stock
bearing a floating interest (or dividend) rate shall be computed on a pro forma
basis as if the average rate in effect from the beginning of the Reference
Period to the Transaction Date had been the applicable rate for the entire
period, unless such Person or any of its Subsidiaries is a party to an Interest
Swap or Hedging Obligation (which shall remain in effect for the 12-month period
immediately following the Transaction Date) that has the effect of fixing the
interest rate on the date of computation, in which case such rate (whether
higher or lower) shall be used.
"Consolidated Current Assets" means, with respect to any person as
at any date of determination, the total assets of such person and its
Consolidated Subsidiaries that may properly be classified as current assets on a
consolidated balance sheet of such person and its Consolidated Subsidiaries in
accordance with GAAP.
"Consolidated Current Liabilities" means, with respect to any person
as at any date of determination, the total liabilities of such person and its
Consolidated Subsidiaries that may properly be classified as current liabilities
(other than the current portion of any loans outstanding under the Credit
Agreement or CL Obligations) on a consolidated balance sheet of such person and
its Consolidated Subsidiaries in accordance with GAAP.
"Consolidated EBITDA" means, with respect to any Person, for any
period, the Consolidated Net Income of such Person for such period adjusted to
add thereto (to the extent deducted from net revenues in determining
Consolidated Net Income), without duplication, the sum of
8
(13) Consolidated income tax expense,
(14) any Tax Amounts Payments made by such Person during such
period,
(15) Consolidated depreciation and amortization expense,
(16) Consolidated Fixed Charges,
(17) non-cash charges relating to employee benefit or other
management compensation plans of such Person or any of its Consolidated
Subsidiaries or any non-cash compensation charge arising from any grant of
stock, stock options or other equity-based awards of such Person or any of its
Subsidiaries (excluding in each case any non-cash charge to the extent that it
represents an accrual of or reserve for cash expenses in any future period or
amortization of a prepaid cash expense incurred in a prior period),
(18) non-cash loses or charges related to impairment of goodwill and
other intangible assets, and
(19) for purposes of determining the Parent's Consolidated Coverage
Ratio and the Parent's Leverage Ratio for any Reference Period that includes the
date upon which the Merger was consummated, nonrecurring expenses and charges of
the Company and Herbalife International, Inc., related to the Merger and Related
Financing Transactions.
less the amount of all cash payments made by such Person or any of its
Subsidiaries during such period to the extent such payments relate to non-cash
charges that were added back in determining Consolidated EBITDA for such period
or any prior period; provided, that consolidated income tax expense and
depreciation and amortization of a Subsidiary that is a less than Wholly-Owned
Subsidiary shall only be added to the extent of the equity interest of the
Company in such Subsidiary.
"Consolidated Fixed Charges" of any Person means, for any period,
the aggregate amount (without duplication and determined in each case in
accordance with GAAP) of:
(1) interest expensed or capitalized, paid, accrued, or scheduled to
be paid or accrued (including, in accordance with the following sentence,
interest attributable to Capitalized Lease Obligations) of such Person and its
Consolidated Subsidiaries during such period, including (1) original issue
discount and non-cash interest payments or accruals on any Indebtedness, (2) the
interest portion of all deferred payment obligations, and (3) all commissions,
discounts and other fees and
9
charges owed with respect to bankers' acceptances and letters of credit
financings and currency and Interest Swap and Hedging Obligations, in each case
to the extent attributable to such period, and
(2) the amount of dividends accrued or payable (or guaranteed) by
such Person or any of its Consolidated Subsidiaries in respect of Preferred
Stock (other than by Subsidiaries of such Person to such Person or such Person's
Wholly-Owned Subsidiaries).
For purposes of this definition, (x) interest on a Capitalized Lease Obligation
shall be deemed to accrue at an interest rate reasonably determined in good
faith by the Company to be the rate of interest implicit in such Capitalized
Lease Obligation in accordance with GAAP and (y) interest expense attributable
to any Indebtedness represented by the guaranty by such Person or a Subsidiary
of such Person of an obligation of another Person shall be deemed to be the
interest expense attributable to the Indebtedness guaranteed.
"Consolidated Interest Expense" means, with respect to any person
for any period, the total consolidated interest expense of such person and its
Consolidated Subsidiaries for such period (calculated without regard to any
limitations on the payment thereof and including commitment fees,
letter-of-credit fees and net amounts payable under Interest Rate Protection
Agreements) determined in accordance with GAAP plus, without duplication, (a)
the portion of CL Obligations of such person and its Consolidated Subsidiaries
representing the interest factor for such period, (b) imputed interest on
Attributable Indebtedness, (c) the cash contributions to any employee stock
ownership plan or similar trust to the extent such contributions are used by
such plan or trust to pay interest or fees to any person (other than the Company
or a Wholly-Owned Subsidiary of the Company) in connection with Indebtedness
incurred by such plan or trust, (d) all interest payable with respect to
discontinued operations, and (e) imputed interest on SL Obligations.
"Consolidated Net Income" means, with respect to any Person for any
period, the net income (or loss) of such Person and its Consolidated
Subsidiaries (determined on a consolidated basis in accordance with GAAP) for
such period, reduced by the amount of any Tax Amounts Payments made during such
period and adjusted to exclude (only to the extent included in computing such
net income (or loss) and without duplication):
(3) all gains (but not losses) which are either extraordinary (as
determined in accordance with GAAP) or are nonrecurring (including any gain from
the sale or other disposition of assets outside the ordinary course of business
or from the issuance or sale of any capital stock),
10
(4) the net income, if positive, of any Person, other than a
Consolidated Subsidiary, in which such Person or any of its Consolidated
Subsidiaries has an interest, except to the extent of the amount of any
dividends or distributions actually paid in cash to such Person or a
Consolidated Subsidiary of such Person during such period, but in any case not
in excess of such Person's pro rata share of such Person's net income for such
period,
(5) the net income, if positive, of any of such Person's
Consolidated Subsidiaries to the extent that the declaration or payment of
dividends or similar distributions is not at the time permitted by operation of
the terms of its charter or bylaws or any other agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to such
Consolidated Subsidiary, and
(6) solely for purposes of Section 4.9 and to avoid duplication, any
Monitoring Fees (or any comparable fees, reimbursements or payments of
out-of-pocket expenses) paid by the Company or the Parent.
"Consolidated Subsidiary" means, for any Person, each Subsidiary of
such Person (whether now existing or hereafter created or acquired) the
financial statements of which are consolidated for financial statement reporting
purposes with the financial statements of such Person in accordance with GAAP.
"Consolidation" means, with respect to the Company or the Parent,
the consolidation of the accounts of the Subsidiaries with those of the Company
or the Parent, as applicable, all in accordance with GAAP; provided, that
"consolidation" shall not include consolidation of the accounts of any
Unrestricted Subsidiary with the accounts of the Company or the Parent. The term
"consolidated" has a correlative meaning to the foregoing.
"Contingent Obligation" means, as to any person, any obligation of
such person guaranteeing or intended to guarantee any Debt, leases, dividends or
other obligations ("primary obligations") of any other person (the "primary
obligor") in any manner, whether directly or indirectly, including any
obligation of such person, whether or not contingent, (a) to purchase any such
primary obligation or any property constituting direct or indirect security
therefor; (b) to advance or supply funds (i) for the purchase or payment of any
such primary obligation or (ii) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor; (c) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary obligation of the ability
of the primary obligor to make payment of such primary obligation; or (d)
otherwise to assure or hold harmless the holder of such primary obligation
against loss in respect thereof; provided, however, that the term "Contingent
Obligation" shall not include (w)
11
endorsements of instruments for deposit or collection in the ordinary course
of business, (x) any product warranties issued on products by Parent or any of
its Subsidiaries in the ordinary course of business, (y) any obligation to buy
back products in the ordinary course of business made pursuant to the buyback
policy of Parent and its Subsidiaries or pursuant to applicable Requirements of
Law, and (z) any operating lease guarantees (other than in respect of SL
Obligations) executed by Parent, Luxembourg Holdings, Luxembourg Intermediate
Holdings, Luxembourg CM or the Company in the ordinary course of business. The
amount of any Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of which such
Contingent Obligation is made (or, if less, the maximum amount of such primary
obligation for which such person may be liable pursuant to the terms of the
instrument evidencing such Contingent Obligation) or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such person is required to perform thereunder) as determined by such
person in good faith.
"Continuing Director" means during any period of 12 consecutive
months after the Issue Date, individuals who at the beginning of any such
12-month period constituted the Board of Directors of the Company (together with
any new directors whose election by such Board of Directors or whose nomination
for election by the shareholders of the Company was approved by a vote of a
majority of the directors 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, including new directors designated in or provided for in
an agreement regarding the merger, consolidation or sale, transfer or other
conveyance, of all or substantially all of the assets of the Company or the
Parent, if such agreement was approved by a vote of such majority of directors).
"Corporate Trust Office" shall be at the address of the Trustee
specified in Section 12.2 hereof or such other address as to which the Trustee
may give notice to the Company.
"Credit Agreement" means the credit agreement dated on or prior to
the date the Merger is consummated as part of the Related Financing
Transactions, by and among the Parent, Herbalife International, Inc. (or WH
Acquisition Corp.), Holdings, certain Subsidiaries of Holdings, certain
financial institutions and UBS AG Stamford Branch, as agent, providing for a
term loan facility and a revolving credit facility, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith (such credit agreement, as amended or supplemented from
time to time, the "Original Credit Agreement"), as such Original Credit
Agreement and/or related documents may be restated, renewed or replaced from
time to time whether or not with the same agent, trustee, representative lenders
or holders, and, subject to the proviso to the next succeeding sentence,
irrespective of any changes in the terms and conditions thereof. Without
12
limiting the generality of the foregoing, the term "Credit Agreement" shall
include agreements in respect of Interest Swap and Hedging Obligations with
lenders (or Affiliates thereof) party to the Credit Agreement and shall also
include any amendment, amendment and restatement, renewal, extension,
restructuring, supplement or modification to any Credit Agreement and all
refundings, refinancings and replacements of any Credit Agreement, including any
credit agreement:
(20) extending the maturity of any Indebtedness incurred thereunder
or contemplated thereby,
(21) adding or deleting borrowers or guarantors thereunder, so long
as borrowers and issuers include one or more of the Company and its Subsidiaries
and their respective successors and assigns,
(22) increasing the amount of Indebtedness incurred thereunder or
available to be borrowed thereunder; provided, that on the date such
Indebtedness is incurred it would not be prohibited by the Section 4.7, or
(23) otherwise altering the terms and conditions thereof in a manner
not expressly prohibited by the terms of this Indenture.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Debt" of any person means, without duplication, (a) all obligations
of such person for borrowed money; (b) all obligations of such person evidenced
by bonds, debentures, notes or similar instruments; (c) all obligations of such
person upon which interest charges are customarily paid or accrued; (d) all
obligations of such person under conditional sale or other title retention
agreements relating to property purchased by such person; (e) all obligations of
such person issued or assumed as the deferred purchase price of property or
services (excluding trade accounts payable incurred in the ordinary course of
business on normal trade terms and not overdue by more than 90 days or, if
overdue for more than 90 days, as to which a dispute exists and adequate
reserves in conformity with GAAP have been established); (f) all Debt of others
secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Encumberance on property owned or
acquired by such person, whether or not the obligations secured thereby have
been assumed; (g) all CL Obligations, PM Obligations and SL Obligations of such
person; (h) all obligations of such person in respect of Hedging Agreements;
provided that, the amount of Debt of the type referred to in this clause (h) of
any person shall be zero unless and until such Debt shall be terminated, in
which case the amount of such Debt shall be the then termination payment due
thereunder by such person; (i) all obligations of such person as an account
party in respect of letters of credit, letters of guaranty and bankers'
acceptances; (j) all
13
Attributable Debt of such person; and (k) all Contingent Obligations of such
person in respect of Debt or obligations of others of the kinds referred to in
clauses (a) through (j) above. The Debt of any Person shall include the Debt of
any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
person's ownership interest in or other relationship with such entity, except to
the extent that the terms of such Debt provide that such Person is not liable
therefor.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Definitive Note" means one or more certificated Notes registered in
the name of the Holder thereof and issued in accordance with Section 2.6 hereof,
in the form of Exhibit A hereto except that such Note shall not include the
information called for by footnotes 3, 4 and 5 thereof.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.3 hereof as
the Depositary with respect to the Notes, until a successor shall have been
appointed and become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean or include such successor.
"Disqualified Capital Stock" means with respect to the Parent, (a)
Equity Interests of the Parent that, by its terms or by the terms of any
security into which it is convertible, exercisable or exchangeable, is, or upon
the happening of an event or the passage of time or both would be, required to
be redeemed or repurchased including at the option of the holder thereof by the
Parent or any of its Subsidiaries or the Company, in whole or in part, on or
prior to 91 days following the Stated Maturity of the Notes and (b) any Equity
Interests of the Company or of any Subsidiary of the Parent other than any
common equity with no preferences, privileges, and no redemption or repayment
provisions. Notwithstanding the foregoing, any Equity Interests that would
constitute Disqualified Capital Stock solely because the holders thereof have
the right to require the Parent or Company to repurchase such Equity Interests
upon the occurrence of a change of control or an asset sale shall not constitute
Disqualified Capital Stock if the terms of such Equity Interests provide that
the Parent or Company may not repurchase or redeem any such Equity Interests
pursuant to such provisions prior to the Company's purchase of the Notes as are
required to be purchased pursuant to the provisions of this Indenture as
described under Section 4.14 hereof.
"Distribution Compliance Period" means the 40-day distribution
compliance period as defined in Regulation S.
14
"Encumberance" means, with respect to any property, (a) any
mortgage, deed of trust, lien, pledge, encumbrance, claim, charge, assignment,
hypothecation, security interest or encumbrance of any kind, any other type of
preferential arrangement in respect of such property or any filing of any
financing statement under the UCC or any other similar notice of lien under any
similar notice or recording statute of any Governmental Authority, including any
easement, right-of-way or other encumbrance on title to Real Property, in each
of the foregoing cases whether voluntary or imposed by law, and any agreement to
give any of the foregoing; (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such property; and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Equity Financing" means the initial cash equity investment in
Holdings by the Principals and their Affiliates and selected co-investors on or
prior to the date the Merger is consummated, in an amount not less than
$176,000,000, and the concurrent or subsequent cash equity investment in
Holdings by certain distributors and management on or after the date the Merger
is consummated.
"Equity Interests" means Capital Stock or partnership, participation
or membership interests and all warrants, options or other rights to acquire
Capital Stock or partnership, participation or membership interests (but
excluding any debt security that is convertible into, or exchangeable for,
Capital Stock or partnership, participation or membership interests).
"Euroclear" means Euroclear Bank S.A./N.V., or its successor, as
operator of the Euroclear system.
"Event of Loss" means, with respect to any property or asset, any
(1) loss, destruction or damage of such property or asset or (2) any
condemnation, seizure or taking, by exercise of the power of eminent domain or
otherwise, of such property or asset, or confiscation or requisition of the use
of such property or asset.
"Excess Cash Flow" means, for any fiscal year of Parent, the sum,
without duplication, of
(a) Consolidated Cash Flow of Parent for such fiscal year; plus
(b) extraordinary net cash gains or net cash gains from sales of
assets, if any, during such fiscal year not included in CNI; plus
(c) reductions to noncash working capital of Parent and its
Consolidated Subsidiaries for such fiscal year (i.e., the decrease, if any, in
Consolidated
15
Current Assets minus Consolidated Current Liabilities from the beginning to the
end of such fiscal year); minus
(d) the amount of any cash income taxes payable by Parent and its
Consolidated Subsidiaries with respect to such fiscal year and any Tax Amounts
Payments made by the Parent and its Consolidated Subsidiaries during such fiscal
year; minus
(e) Consolidated Interest Expense of Parent, to the extent paid in
cash during such fiscal year; minus
(f) Capital Expenditures of Parent during such fiscal year, to the
extent funded from internally generated funds; minus
(g) permanent repayments of Debt made by Parent and its Consolidated
Subsidiaries during such fiscal year (including payments of principal in respect
of revolving loans to the extent there is an equivalent reduction in the
revolving commitments under the Credit Agreement); but only to the extent such
repayments do not occur in connection with a refinancing of all or any portion
of the loans under the Credit Facility, if any; minus
(h) extraordinary cash losses from the sale of assets during such
fiscal year and not included in Parent's CNI; minus
(i) additions to noncash working capital of Parent and its
Consolidated Subsidiaries for such fiscal year (i.e., the increase, if any, in
Consolidated Current Assets minus Consolidated Current Liabilities from the
beginning to the end of such fiscal year);
provided that, with respect to Parent's fiscal year 2002 only, for the purposes
of this definition of "Excess Cash Flow", each of the foregoing shall be
calculated for the period from and including the date the Merger is consummated
through and including the last day of Parent's fiscal year 2002.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means Series B Notes issued pursuant to the
Exchange Offer.
"Exchange Offer" means an offer that may be made by the Company
pursuant to the Registration Rights Agreement to exchange Exchange Notes for the
16
Notes issued on the Issue Date.
"Exchange Offer Registration Statement" shall have the meaning set
forth in the Registration Rights Agreement.
"Exempted Affiliate Transaction" means (a) customary employee
compensation arrangements approved by a majority of independent (as to such
transactions) members of the Board of Directors of the Company, (b) dividends
permitted by Section 4.9 hereof and payable in form and amount on a pro rata
basis to all holders of common stock of the Company, (c) transactions solely
between or among the Company and the Guarantors any Consolidated Subsidiaries of
the Company or the Guarantors or solely among Consolidated Subsidiaries of the
Company or the Guarantors, (d) payment of Monitoring Fees pursuant to the
Monitoring Services Agreements, (e) payment of any Tax Amounts Payments that are
not prohibited by Section 4.9 hereof, (f) the Monitoring Services Agreements,
substantially in the form attached as Exhibits G and H to this Indenture, (g)
Capital Contributions to the Company or any sale of Capital Stock (other than
Disqualified Capital Stock) of the Company to an Affiliate, (h) payment of
reasonable directors' fees to Persons who are not otherwise Affiliates of the
Company or the Parent and customary indemnification and insurance agreements in
favor of directors, regardless of affiliation with the Company or the Parent,
and (i) payments to Affiliates as part of the Merger Consideration and Related
Costs that were disclosed in the Offering Memorandum.
"Existing Indebtedness" means Indebtedness of Herbalife
International, Inc. and its Subsidiaries (other than Indebtedness under the
Credit Facility) in existence on the Issue Date, reduced to the extent such
amounts are repaid, refinanced or retired.
"Fair Market Value" means the price that would be paid in an
arm's-length transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no compulsion to buy,
as determined in good faith by the Company.
"Final Determination" means a final "determination" as defined under
section 1313 of the Code or a similar determination under state, local, or
foreign law.
"Final Determination Amount" means, in respect of any particular Tax
Determination Year, any additional taxes, interest, and penalties resulting from
a Final Determination and arising from or attributable to amounts paid or
accrued pursuant to the Intercompany Service Agreement.
"Foreign Subsidiary" means any Subsidiary of the Company which
17
(i) is not organized under the laws of the United States, any state thereof or
the District of Columbia and (ii) conducts substantially all of its business
operations outside the United States of America.
"GAAP" means United States generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession in the United States as in effect at the time.
"Global Notes" means one or more Notes in the form of Exhibit A
hereto that includes, as applicable, the information referred to in footnotes 3,
4 and 5 to the form of Note, attached hereto as Exhibit A, issued under this
Indenture, that is deposited with or on behalf of and registered in the name of
the Depositary or its nominee.
"Global Note Legend" means the legend set forth in Section
2.6(g)(ii) hereof, which is required to be placed on all Global Notes issued
under this Indenture.
"Governmental Authority" means any federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"Guarantee" when used with respect to the Notes, means a guarantee
by the Guarantors of all or any part of the Notes, in accordance with Article X
hereof.
"Guarantor" means the Parent and each present and future Subsidiary
of Parent or the Company that at the time are guarantors of the Notes in
accordance with this Indenture.
"Hedging Agreement" means any Interest Rate Protection Agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Holder" means a Person in whose name a Note is registered on the
Registrar's books.
"Holdings" means WH Holdings (Cayman Islands), Ltd., a corporation
organized under the laws of the Cayman Islands.
"Holdings CFC Group" means Holdings and the members of the Parent
CFC Group.
18
"Indebtedness" of any Person means, without duplication,
(1) all liabilities and obligations, contingent or otherwise, of
such Person, to the extent such liabilities and obligations would appear as a
liability upon the consolidated balance sheet of such Person in accordance with
GAAP, (1) in respect of borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a portion
thereof), (2) evidenced by bonds, notes, debentures or similar instruments, (3)
representing the balance deferred and unpaid of the purchase price of any
property or services, except those incurred in the ordinary course of its
business that would constitute ordinarily a trade payable to trade creditors;
(2) all liabilities and obligations, contingent or otherwise, of
such Person (1) evidenced by bankers' acceptances or similar instruments issued
or accepted by banks, (2) relating to any Capitalized Lease Obligation, or (3)
evidenced by a letter of credit or a reimbursement obligation of such Person
with respect to any letter of credit;
(3) all net obligations of such Person under Interest Swap and
Hedging Obligations;
(4) all liabilities and obligations of others of the kind described
in the preceding clause (a), (b) or (c) that such Person has guaranteed or
provided credit support or that is otherwise its legal liability or which are
secured by any assets or property of such Person;
(5) any and all deferrals, renewals, extensions, refinancing and
refundings (whether direct or indirect) of, or amendments, modifications or
supplements to, any liability of the kind described in any of the preceding
clauses (a), (b), (c) or (d), or this clause (e), whether or not between or
among the same parties; and
(6) all Disqualified Capital Stock of such Person (measured at the
greater of its voluntary or involuntary maximum fixed repurchase price plus
accrued and unpaid dividends).
For purposes hereof, the "maximum fixed repurchase price" of any Disqualified
Capital Stock which does not have a fixed repurchase price shall be calculated
in accordance with the terms of such Disqualified Capital Stock as if such
Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such price
is based upon, or measured by, the Fair Market Value of such Disqualified
Capital Stock, such Fair
19
Market Value to be determined in good faith by the board of directors of the
issuer (or managing general partner of the issuer) of such Disqualified Capital
Stock.
The amount of any Indebtedness outstanding as of any date shall be (1) the
accreted value thereof, in the case of any Indebtedness issued with original
issue discount, but the accretion of original issue discount in accordance with
the original terms of Indebtedness issued with an original issue discount shall
not be deemed to be an incurrence and (2) the principal amount thereof, in the
case of any other Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"Indirect Participant" means an entity that clears through,
maintains a direct or indirect, custodial relationship with, or holds a
beneficial interest through, a Participant.
"INITIAL PUBLIC OFFERING" MEANS AN UNDERWRITTEN PUBLIC OFFERING OF
COMMON STOCK OF THE PARENT IN WHICH GROSS PROCEEDS TO THE PARENT ARE AT LEAST
$50,000,000.
"Initial Purchaser" means the initial purchaser under the Purchase
Agreement.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who is not also a QIB.
"INTERCOMPANY SERVICE AGREEMENT" MEANS A SERVICE AGREEMENT (OR, IF
MORE THAN ONE SERVICE AGREEMENT IS ENTERED INTO, THE AGGREGATE OF ALL SUCH
SERVICE AGREEMENTS) ENTERED INTO BY AND AMONG AN INTERCOMPANY SERVICE PROVIDER
AND ONE OR MORE MEMBERS OF THE PARENT GROUP, THE PRICING OF WHICH IS DETERMINED
ON AN ARM'S-LENGTH BASIS AND IN COMPLIANCE WITH THE "BEST METHOD RULE" AND THE
"DOCUMENTATION REQUIREMENTS" UNDER SECTIONS 482 AND 6662 OF THE CODE AND THE
TREASURY REGULATIONS PROMULGATED THEREUNDER.
"INTERCOMPANY SERVICE PROVIDER" MEANS ANY MEMBER OF THE PARENT CFC
GROUP THAT IS OBLIGATED TO RENDER SERVICES PURSUANT TO THE INTERCOMPANY SERVICE
AGREEMENT.
"INTERCOMPANY SERVICE RECEIPTS" MEANS, IN RESPECT OF ANY TAX
DETERMINATION YEAR, AMOUNTS RECEIVED OR RECEIVABLE BY THE INTERCOMPANY SERVICE
PROVIDER FROM MEMBERS OF THE PARENT GROUP IN RESPECT OF SERVICES PROVIDED BY THE
INTERCOMPANY SERVICE PROVIDER TO SUCH MEMBERS PURSUANT TO AN INTERCOMPANY
SERVICE AGREEMENT.
"INTERCOMPANY SERVICE SUBPART F INCOME" MEANS, IN RESPECT OF ANY TAX
DETERMINATION YEAR, (i) THE SUBPART F INCOME OF ANY MEMBER OF THE HOLDINGS CFC
GROUP FOR SUCH YEAR AS DETERMINED UNDER SECTION 951(A)(1)(A) OF THE CODE AND
(ii) THE AMOUNT OF EARNINGS OF ANY MEMBER OF THE HOLDINGS CFC GROUP FOR SUCH
YEAR AS DETERMINED UNDER SECTION 951(a)(1)(B) OF THE CODE IN RESPECT OF ANY
SECTION 956 AMOUNT THAT, IN THE CASE OF EACH OF THE IMMEDIATELY PRECEDING
CLAUSES (i) AND (ii) AND WITHOUT DUPLICATION, ARISES FROM OR IS ATTRIBUTABLE TO
INTERCOMPANY SERVICE RECEIPTS (OR THE DISTRIBUTION, PAYMENT, OR TRANSFER OF
RECEIPTS BY SUCH MEMBER TO ANOTHER MEMBER OF THE HOLDINGS CFC GROUP).
20
"Interest Payment Date" means the stated due date of an installment
of interest on the Notes.
"Interest Rate Protection Agreement" means any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or
similar agreement or arrangement designed to protect Holdings or its
Subsidiaries against fluctuations in interest rates and not entered into for
speculation.
"Interest Swap and Hedging Obligation" means any obligation of any
Person pursuant to any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate exchange agreement,
currency exchange agreement or any other agreement or arrangement designed to
protect against fluctuations in interest rates or currency values, including,
without limitation, any arrangement whereby, directly or indirectly, such Person
is entitled to receive from time to time periodic payments calculated by
applying either a fixed or floating rate of interest on a stated notional amount
in exchange for periodic payments made by such Person calculated by applying a
fixed or floating rate of interest on the same notional amount.
"Investment" by any Person in any other Person means (without
duplication):
(7) the acquisition (whether by purchase, merger, consolidation or
otherwise) by such Person (whether for cash, property, services, securities or
otherwise) of Equity Interests, capital stock, bonds, notes, debentures,
partnership or other ownership interests or other securities, including any
options or warrants, of such other Person or any agreement to make any such
acquisition;
(8) the making by such Person of any deposit with, or advance, loan
or other extension of credit to, such other Person (including the purchase of
property from another Person subject to an understanding or agreement,
contingent or otherwise, to resell such property to such other Person) or any
commitment to make any such advance, loan or extension (but excluding accounts
receivable, endorsements for collection or deposits arising in the ordinary
course of business);
(9) other than guarantees of Indebtedness of the Company or any
Guarantor to the extent permitted by Section 4.7, the entering into by such
Person of any guarantee of, or other credit support or contingent obligation
with respect to, Indebtedness or other liability of such other Person;
(10) the making of any capital contribution by such Person to such
other Person;
(11) the designation by the Board of Directors of the Company of any
Person to be an Unrestricted Subsidiary; and
(12) a Subsidiary of the Parent or the Company that is a Guarantor
becoming a Non-Guarantor Subsidiary as a result of the release of the Guarantee
of such Subsidiary in accordance with the provisions of Section 10.4.
21
The Company and the Parent, without duplication, shall be deemed to make an
Investment in an amount equal to the fair market value of the net assets of any
subsidiary of the Company or the Parent (or, if neither the Company nor any of
its Subsidiaries has theretofore made an Investment in such subsidiary, in an
amount equal to the Investments being made), at the time that such subsidiary is
designated an Unrestricted Subsidiary, and any property transferred to an
Unrestricted Subsidiary from the Company, the Parent or a Subsidiary of the
Company or the Parent shall be deemed an Investment valued at its fair market
value at the time of such transfer. The Company and the Parent, without
duplication, shall be deemed to make an Investment in an amount equal to the
fair market value of the net assets of any Subsidiary of the Company or the
Parent that is a Guarantor (or, if neither the Company nor any of its
Subsidiaries has theretofore made an Investment in such subsidiary, in an amount
equal to the Investments being made) at the time that such Subsidiary becomes a
Non-Guarantor Subsidiary as a result of the release of the Guarantee of such
Subsidiary in accordance with the provisions of Section 10.4. The Company and
the Parent shall be deemed to have made an Investment in a Person that is or was
required to be a Guarantor if, upon the issuance, sale or other disposition of
any portion of the Company's or the Guarantor's ownership in the Capital Stock
of such Person, such Person ceases to be a Guarantor. The fair market value of
each Investment shall be measured at the time made or returned, as applicable.
"Issue Date" means the date of first issuance of the Notes under
this Indenture.
"Junior Security" means any Qualified Capital Stock and any
Indebtedness of the Company or a Guarantor, as applicable, that is contractually
subordinated in right of payment to Senior Debt (or any securities issued in
exchange for Senior Debt) at least to the same extent as the Notes or the
Guarantee, as applicable, and has no scheduled installment of principal due, by
redemption, sinking fund payment or otherwise, on or prior to the Stated
Maturity of the Notes; provided, that in the case of subordination in respect of
Senior Debt under the Credit Agreement, "Junior Security" shall mean any
Qualified Capital Stock and any Indebtedness of the Company or the Guarantor, as
applicable, that:
(24) has a final maturity date occurring after the final maturity
date of, all Senior Debt outstanding under the Credit Agreement on the date of
issuance of such Qualified Capital Stock or Indebtedness,
(25) is unsecured,
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(26) has an Average Life longer than the security for which such
Qualified Capital Stock or Indebtedness is being exchanged, and
(27) by their terms or by law are subordinated to Senior Debt
outstanding under the Credit Agreement (and any securities issued in exchange
for such Senior Debt outstanding under the Credit Agreement) on the date of
issuance of such Qualified Capital Stock or Indebtedness at least to the same
extent as the Notes.
"Korean Consumer Refund Guarantee" means the guarantee or letter of
credit issued to any applicable Korean Governmental Authority as required to
comply with the consumer refund laws of Korea, together with any supporting
obligations in respect thereof.
"Leverage Ratio" on any date of determination (the "Determination
Date") means the ratio, on a pro forma basis, of (a) the aggregate amount of
Indebtedness of the Parent and its Subsidiaries on a consolidated basis
determined in accordance with GAAP to (b) the aggregate amount of Consolidated
EBITDA of the Parent attributable to continuing operations and business
(exclusive of amounts attributable to operations and businesses permanently
discontinued or disposed of) for the Reference Period; provided, that for
purposes of calculating Consolidated EBITDA for this definition: (1)
Acquisitions which occurred during the Reference Period or subsequent to the
Reference Period and on or prior to the Determination Date shall be assumed to
have occurred on the first day of the Reference Period, (2) transactions giving
rise to the need to calculate the Leverage Ratio shall be assumed to have
occurred on the first day of the Reference Period, (3) the incurrence of any
Indebtedness (including issuance of any Disqualified Capital Stock) during the
Reference Period or subsequent to the Reference Period and on or prior to the
Determination Date (and the application of the proceeds therefrom to the extent
used to refinance or retire other Indebtedness) (other than Indebtedness
incurred under any revolving credit facility) shall be assumed to have occurred
on the first day of the Reference Period, (4) the Consolidated Fixed Charges of
such Person attributable to interest on any Indebtedness or dividends on any
Disqualified Capital Stock bearing a floating interest (or dividend) rate shall
be computed on a pro forma basis as if the average rate in effect from the
beginning of the Reference Period to the Transaction Date had been the
applicable rate for the entire period, unless such Person or any of its
Subsidiaries is a party to an Interest Swap or Hedging Obligation (which shall
remain in effect for the 12-month period immediately following the Transaction
Date) that has the effect of fixing the interest rate on the date of
computation, in which case such rate (whether higher or lower) shall be used,
and (5) for any Reference Period that includes any date on or prior to December
31, 2002, one-time charges or expenses of the Parent and its Subsidiaries
related to severance or to the termination of employment of employees of the
Parent and its Subsidiaries, to the extent such charges relate to cash paid to
such terminated employee,
23
in each case, to the extent such charges or expenses reduced the Consolidated
EBITDA of the Parent.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Notes for use by such
Holders in connection with the Exchange Offer.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation or other encumbrance
upon or with respect to any property of any kind, real or personal, movable or
immovable, now owned or hereafter acquired.
"Liquidated Damages" means all liquidated damages then owing
pursuant to the Registration Rights Agreement.
"LUXEMBOURG HOLDINGS" MEANS WH LUXEMBOURG HOLDINGS SARL, A
LUXEMBOURG COMPANY.
"LUXEMBOURG INTERMEDIATE HOLDINGS" MEANS WH LUXEMBOURG INTERMEDIATE
HOLDINGS SARL, A LUXEMBOURG COMPANY.
"LUXEMBOURG CM" MEANS WH LUXEMBOURG CM SARL, A LUXEMBOURG COMPANY.
"Merger" the merger of WH Acquisition Corp., a Nevada corporation,
with and into Herbalife International, Inc., a Nevada corporation, pursuant to
the Merger Agreement.
"Merger Agreement" means the Agreement and Plan of Merger, dated as
of April 10, 2002, by and among Holdings, a Cayman Islands corporation, WH
Acquisition Corp., a Nevada corporation and Herbalife International, Inc., a
Nevada corporation, as in effect on the Issue Date, without giving effect to any
amendment thereto or waiver thereof after the Issue Date.
"Merger Consideration and Related Costs" means:
(1) the cash consideration for the Merger payable by the Company
to holders of Herbalife International, Inc.'s common stock and
options to purchase common stock pursuant to the Merger
Agreement as described in the Offering Memorandum;
(2) payment of obligations of Subsidiaries of Herbalife
International, Inc. that are guaranteed by Herbalife
International, Inc. and payable in connection with the Merger,
as described in the Offering Memorandum; and
(3) all fees and expenses related to the foregoing and payable in
connection with the merger, as described in the Offering
Memorandum.
"Merger Financing Transactions" means the issuance of the Notes and
the Equity Financing in connection with the consummation of the Merger.
24
"Monitoring Fees" means payments to Whitney & Co., LLC or GGC
Administration, LLC pursuant to the Monitoring Services Agreements.
"Monitoring Services Agreements" means those certain separate
monitoring fee agreements among (i) Holdings, the Company and Whitney & Co., LLC
substantially in the form attached hereto as Exhibit I and (ii) Holdings, the
Company and GGC Administration, LLC, substantially in the form attached hereto
as Exhibit J, without giving effect to any amendment thereto or waiver thereof.
"Net Cash Proceeds" means the aggregate amount of cash or Cash
Equivalents received by the Company in the case of a sale or Capital
Contribution in respect of Qualified Capital Stock and by the Company, the
Parent and the Subsidiaries of the Company or the Parent in respect of an Asset
Sale plus, in the case of an issuance of Qualified Capital Stock upon any
exercise, exchange or conversion of securities (including options, warrants,
rights and convertible or exchangeable debt) of the Company that were issued for
cash on or after the Issue Date, the amount of cash originally received by the
Company upon the issuance of such securities (including options, warrants,
rights and convertible or exchangeable debt) less, in each case, the sum of all
payments, fees, commissions and (in the case of Asset Sales, reasonable and
customary), expenses (including, without limitation, the fees and expenses of
legal counsel and investment banking fees and expenses) incurred in connection
with such Asset Sale or sale of Qualified Capital Stock, and, in the case of an
Asset Sale only, less the amount (estimated reasonably and in good faith by the
Company) of income, franchise, sales and other applicable taxes required to be
paid by the Company, the Parent or any Subsidiary of the Company or the Parent
in connection with such Asset Sale in the taxable year that such sale is
consummated or in the immediately succeeding taxable year, the computation of
which shall take into account the reduction in tax liability resulting from any
available operating losses and net operating loss carryovers, tax credits and
tax credit carryforwards, and similar tax attributes.
"Non-Guarantor Subsidiary" means any Subsidiary of the Parent,
including any Subsidiary of the Company, that has not guaranteed the Obligations
under the Notes and this Indenture or that has been released from its
obligations under its Guarantee of the Notes in accordance with the terms of
this Indenture.
"Notice of Deficiency" means a notice of deficiency as described
under section 6212 of the Code or a similar notice under state, local or foreign
law.
"Non-U.S. Person" means any Person other than a U.S. Person.
"Notes Custodian" means the Trustee, as custodian with respect to
the Notes in global form, or any successor entity thereto.
"Obligation" means any principal, premium or interest payment, or
monetary penalty, or damages, due by the Company or any Guarantor under the
terms of the Notes or this Indenture, including any Liquidated Damages due
pursuant to the terms of the Registration Rights Agreement.
"Offering Memorandum" means the Offering Memorandum, dated June 21,
2002, relating to the offer and sale of the Notes on the Issue Date.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary, any Assistant Secretary or any Vice President of such
Person.
25
"Officers' Certificate" means the officers' certificate to be
delivered upon the occurrence of certain events as set forth in this Indenture.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Sections
12.4 and 12.5 hereof. The counsel may be an employee of or counsel to the
Company or any Subsidiary of the Company.
"Ownership Interest" means, with respect to any person, any and all
shares, interests, participations or other equivalents, including membership
interests (however designated, whether voting or non-voting), of capital of such
person, including, if such person is a partnership, partnership interests
(whether general or limited) and any other interest (other than an interest
constituting Indebtedness) or participation that confers on a person the right
to receive a share of the profits and losses of, or distributions of assets of,
such partnership, whether outstanding on the date hereof or issued after the
Issue Date.
"Parent" means WH Intermediate Holdings Ltd.
"Parent CFC Group" means Parent and any direct or indirect
Subsidiary of Parent other than the Company and any direct or indirect
Subsidiary of the Company.
"Parent Group" means Parent and its Subsidiaries.
"Parent Group Tax Savings Amount" means, in respect of any Tax
Determination Year, the excess of (x) the tax liability incurred by the Parent
Group for such Tax Determination Year as determined as if no Intercompany
Service Agreement had been entered into by and among Intercompany Service
Provider and any Subsidiary of the Parent Group over (y) the actual tax
liability incurred by the Parent Group for such Tax Determination Year (as
determined on a basis consistent with any Final Determination in respect of any
previous Tax Determination Year), which liability shall take into account any
taxes that have been, or will be, incurred by the Parent Group in connection
with the making of a Tax Amounts Payment in respect of such Tax Determination
Year. If, in respect of any Tax Determination Year, Parent or any Subsidiary of
the Parent Group has received a Notice of Deficiency, in respect of which there
has been no Final Determination, related to any item arising from or
attributable to amounts paid or accrued pursuant to the Intercompany Service
Agreement, the Parent Group Tax Savings Amount shall be determined on a basis
consistent with such Notice of Deficiency except to the extent that, based on
the advice of the Tax Amounts CPA, the Company reasonably determines that, more
likely than not, the Parent or such Subsidiary will prevail on the merits in
connection with contesting such Notice of Deficiency.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to The Depository Trust Company,
shall include Euroclear and Clearstream).
"Participating Broker-Dealer" means any broker-dealer that receives
Exchange Notes for its own account in the Exchange Offer in exchange for Notes
that were acquired by such broker-dealer as a result of market-making or other
trading activities.
"Permitted Indebtedness" means that:
(1) the Company and the Guarantors may incur Indebtedness evidenced
by the Notes and the Guarantees (including the Exchange Notes and the Guarantees
in respect thereof) issued pursuant to this Indenture up to the amounts
26
being issued on the Issue Date less any amounts repaid or retired (and not
including any Additional Notes);
(2) the Company and its Subsidiaries may incur Refinancing
Indebtedness with respect to any Existing Indebtedness or the Company and the
Guarantors, as applicable, may incur Refinancing Indebtedness with respect to
any Indebtedness (including Disqualified Capital Stock), described in clause (a)
or incurred pursuant to the Debt Incurrence Ratio test of Section 4.7, or which
was refinanced pursuant to this clause (b);
(3) the Company, the Guarantors and the Subsidiaries of the Company
and the Parent may incur Indebtedness solely in respect of bankers acceptances,
letters of credit and performance bonds (to the extent that such incurrence does
not result in the incurrence of any obligation to repay any obligation relating
to borrowed money or other Indebtedness), all in the ordinary course of business
in accordance with customary industry practices, in amounts and for the purposes
customary in the Company's industry; provided, that the aggregate principal
amount outstanding of such Indebtedness (including any Refinancing Indebtedness
and any other Indebtedness issued to retire, refinance, refund, defease or
replace such Indebtedness) shall at no time exceed $1,000,000;
(4) the Company may incur Indebtedness owed to (borrowed from) any
Guarantor, and any Guarantor may incur Indebtedness owed to (borrowed from) any
other Guarantor or the Company; provided, that in the case of Indebtedness of
the Company, such obligations shall be unsecured and contractually subordinated
in all respects to the Company's obligations pursuant to the Notes and any event
that causes such Guarantor no longer to be a Guarantor (including by designation
to be an Unrestricted Subsidiary) shall be deemed to be a new incurrence by such
issuer of such Indebtedness and any guarantor thereof respectively subject to
Section 4.7;
(5) the Company and the Guarantors may incur Indebtedness owed to
(borrowed from) any Non-Guarantor Subsidiary and any Non-Guarantor Subsidiary
may incur Indebtedness owed to (borrowed from) any other Non- Guarantor
Subsidiary; provided, that in the case of Indebtedness of the Company or the
Guarantors, such obligations shall be unsecured and contractually subordinated
in all respects to the Company's obligations pursuant to the Notes or the
Guarantor's obligations pursuant to its Guarantee and any event that causes such
Non-Guarantor Subsidiary to no longer be a Non-Guarantor Subsidiary (other than
by becoming a Guarantor) shall be deemed to be a new incurrence by such issuer
of such Indebtedness and any guarantor thereof subject to Section 4.7;
(6) the Company and the Guarantors may incur Interest Swap and
27
Hedging Obligations that are incurred for the purpose of fixing or hedging
interest rate or currency risk with respect to any fixed or floating rate
Indebtedness that is permitted by this Indenture to be outstanding or any
receivable or liability the payment of which is determined by reference to a
foreign currency; provided, that the notional amount of any such Interest Swap
and Hedging Obligation does not exceed the principal amount of Indebtedness to
which such Interest Swap and Hedging Obligation relates;
(7) the Company and its Subsidiaries may incur the Existing
Indebtedness;
(8) any Non-Guarantor Subsidiary may incur Indebtedness owed to
(borrowed from) the Parent, the Company or any Guarantor; provided, that the
Investment in the form of the loan is not prohibited at the time of incurrence
by Section 4.9; and
(9) Indebtedness in respect of the Korean Consumer Refund Guarantee.
"Permitted Investment" means:
(10) any Investment in any of the Notes;
(11) any Investment in Cash Equivalents;
(12) intercompany notes to the extent permitted under clause (d) or
(e) of the definition of "Permitted Indebtedness" herein;
(13) any Investment by the Company, the Parent or any Subsidiary of
the Company or the Parent in a Person in a Related Business if as a result of
such Investment such Person immediately becomes a Subsidiary of the Company or
the Parent and becomes a Guarantor or such Person is immediately merged with or
into the Company or a Guarantor;
(14) any Investment in any Person in exchange for the Company's
Qualified Capital Stock or the Net Cash Proceeds of any substantially concurrent
sale of the Company's Qualified Capital Stock;
(15) Investment in other Persons, including Non-Guarantor
Subsidiaries, provided, that after giving pro forma effect to each such
Investment, the aggregate amount of all such Investments made on and after the
Issue Date pursuant to this clause (f) that are outstanding (after giving effect
to any such Investments that are returned to the Company or the Guarantor that
made such prior Investment, without restriction, in cash on or prior to the date
of any such calculation), but only
28
up to the amount of the Investment made under this clause (f) in such Person, at
any time does not in the aggregate exceed $15,000,000 (measured by the value
attributed to the Investment at the time made or returned, as applicable);
(16) Investments by Non-Guarantor Subsidiaries in other
Non-Guarantor Subsidiaries;
(17) any Investment by any Non-Guarantor Subsidiary in a Person in a
Related Business if as a result of such Investment such Person immediately
becomes a Non-Guarantor Subsidiary or a Guarantor or such Person becomes a
Non-Guarantor Subsidiary or a Guarantor;
(18) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in compliance
with Section 4.13;
(19) Investments in customers and suppliers in the ordinary course
of business and consistent with the Company's past practices that either (A)
generate accounts receivables, or (B) are accepted in settlement of bonafide
disputes;
(20) Investments in the form of advances to employees for travel,
relocation and like expenses, in each case, consistent with the Company's past
practices; and
(21) Investments in the form of loans and advances not to exceed
$2,500,000 at any one time outstanding pursuant to this clause (l) to employees,
directors and distributors, of the Parent, the Company and the Subsidiaries of
the Parent for the purpose of funding the purchase of Capital Stock of the
Parent or Holdings by such employees, directors and distributors.
"Permitted Lien" means:
(22) Liens existing on the Issue Date;
(23) statutory liens of carriers, warehousemen, mechanics, material
men, landlords, repairmen or other like Liens arising by operation of law in the
ordinary course of business provided that (1) the underlying obligations are not
overdue for a period of more than 30 days, or (2) such Liens are being contested
in good faith and by appropriate proceedings and adequate reserves with respect
thereto are maintained on the books of the Company or the Parent in accordance
with GAAP;
(24) Liens securing the performance of bids, trade contracts (other
29
than borrowed money), leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(25) Liens securing the Notes;
(26) Liens securing Indebtedness of a Person existing at the time
such Person becomes a Subsidiary or is merged with or into the Company, the
Parent or a Subsidiary of the Company or the Parent or Liens securing
Indebtedness incurred in connection with an Acquisition, provided, that such
Liens were in existence prior to the date of such acquisition, merger or
consolidation, were not incurred in anticipation thereof, and do not extend to
any other assets;
(27) Liens arising from precautionary Uniform Commercial Code
financing statement filings regarding operating leases entered into by the
Company, the Parent or any Subsidiary of the Company or the Parent in the
ordinary course of business;
(28) Liens securing Refinancing Indebtedness incurred to refinance
any Indebtedness that was previously so secured in a manner no more adverse to
the Holders of the Notes than the terms of the Liens securing such refinanced
Indebtedness, and provided that the Indebtedness secured is not increased and
the Lien is not extended to any additional assets or property that would not
have been security for the Indebtedness refinanced;
(29) Liens securing Indebtedness incurred under Senior Debt in
accordance with the terms of Section 4.7 hereof; and
(30) Liens securing Indebtedness of any Non-Guarantor Subsidiary
incurred in accordance with the provisions of Section 4.7.
"Person" or "person" means any corporation, individual, limited
liability company, joint stock company, joint venture, partnership, limited
liability company, unincorporated association, governmental regulatory entity,
country, state or political subdivision thereof, trust, municipality or other
entity.
"Pledged Securities" means "Pledged Securities" as defined in the
Security Agreement to be purchased by the Securities Intermediary with
$154,126,222.22 of the net proceeds from the Notes, which the Securities
Intermediary shall deposit in the Secured Proceeds Account as provided in the
Security Agreement.
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"PM Obligation" means, for any person, the obligations of such
person in respect of Debt incurred for the purpose of financing all or any part
of the purchase price of any property (including Ownership Interests of any
person) or the cost of installation, construction or improvement of any property
or assets and any refinancing thereof; provided, however, that such Indebtedness
is incurred within 90 days after such acquisition of such property by such
person.
"Preferred Stock" means any Equity Interest of any class or classes
of a Person (however designated) which is preferred as to payments of dividends,
or as to distributions upon any liquidation or dissolution, over Equity
Interests of any other class of such Person.
"Private Placement Legend" means the legend set forth in Section
2.6(g)(i) hereof to be placed on all Notes issued under this Indenture except
where specifically stated otherwise by the provisions of this Indenture.
"Proceeds" means:
(a) with respect to any Asset Disposition, the cash proceeds
received by Holdings or any of its Subsidiaries party to the Credit Agreement
(including cash proceeds subsequently received (as and when received by Holdings
or any of its Subsidiaries party to the Credit Agreement) in respect of noncash
consideration initially received) net of (i) selling expenses (including
reasonable brokers' fees or commissions, legal fees, transfer and similar taxes
and the Company's reasonable and good faith estimate of income, franchise,
sales, and other applicable taxes required to be paid by the Company or any of
its respective Subsidiaries in connection with such Asset Disposition in the
taxable year that such sale is consummated or in the immediately succeeding
taxable year, the computation of which shall take into account the reduction in
tax liability resulting from any available operating losses and net operating
loss carryovers, tax credits, and tax credit carry forwards, and similar tax
attributes; (ii) amounts escrowed or provided as a reserve, in accordance with
GAAP, against any liabilities under any indemnification obligations or purchase
price adjustment associated with such Asset Disposition (provided that, to the
extent and at the time any such amounts are released from such escrow or
reserve, such amounts shall constitute Proceeds); (iii) the Company's good faith
estimate of payments required to be made with respect to unassumed liabilities
relating to the assets sold within 90 days of such Asset Disposition (provided
that, to the extent such cash proceeds are not used to make payments in respect
of such unassumed liabilities within 90 days of such Asset Disposition, such
cash proceeds shall constitute Proceeds); and (iv) the principal amount, premium
or penalty, if any, interest and other amounts on any Debt for borrowed money
that is secured by a senior Encumbrance on the asset sold in such Asset
Disposition and that is repaid with such proceeds (other than any such Debt
assumed by the purchaser of such asset);
31
(b) with respect to any Casualty Event, the cash insurance proceeds,
condemnation awards and other compensation received in respect thereof, net of
all reasonable costs and expenses incurred in connection with the collection of
such proceeds, awards or other compensation in respect of such Casualty Event.
"Pro Forma" or "pro forma" shall have the meaning set forth in
Regulation S-X of the Securities Act of 1933, as amended, unless otherwise
specifically stated herein.
"Principals" means each of (1) Whitney V, L.P. and (2) CCG
Investments (BVI), L.P.
"Purchase Agreement" means the agreement dated June 21, 2002, among
the Initial Purchaser, the Company, Herbalife International, Inc. and the
Guarantors.
"Purchase Money Indebtedness" of any Person means any Indebtedness
of such Person to any seller or other Person incurred solely to finance the
acquisition (including in the case of a Capitalized Lease Obligation, the
lease), construction, installation or improvement of any after acquired real or
personal tangible property which, in the reasonable good faith judgment of the
Board of Directors of the Company, is directly related to a Related Business of
the Company and which is incurred substantially concurrent with such
acquisition, construction, installation or improvement and is secured only by
the assets so financed.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Qualified Capital Stock" means any Capital Stock of the Parent that
is not Disqualified Capital Stock.
"Qualified Equity Offering" means, except in connection with the
Merger and Related Financing Transactions, (i) an underwritten public offering
pursuant to a registration statement filed with the Commission in accordance
with the Securities Act of 1933, as amended, of Qualified Capital Stock of the
Parent, or (ii) an unregistered offering of Qualified Capital Stock of Parent
for cash resulting in net proceeds to the Parent in excess of $50,000,000, or
(iii) a Capital Contribution to the Parent resulting in net cash proceeds in
excess of $50,000,000.
"Qualified Exchange" means:
(28) any legal defeasance, redemption, retirement, repurchase or
other acquisition of Capital Stock, or Indebtedness of the Parent or Company
issued
32
on or after the Issue Date with the Net Cash Proceeds received by the Parent or
Company from the substantially concurrent sale of its Qualified Capital Stock
(other than to the Parent, the Company, or a Subsidiary of the Company or the
Parent) or, to the extent used to retire Indebtedness (other than Disqualified
Capital Stock) of the Parent or the Company issued on or after the Issue Date,
Refinancing Indebtedness of the Parent or the Company, or
(29) any issuance of Qualified Capital Stock of the Parent or the
Company in exchange for any Capital Stock or Indebtedness of the Parent or the
Company issued on or after the Issue Date.
"Real Property" means, collectively, all right, title and interest
(including any leasehold estate) in and to any and all parcels of or interests
in real property owned, leased or operated by any person, whether by lease,
license or other means, together with, in each case, all easements,
hereditaments and appurtenances relating thereto, all improvements and
appurtenant fixtures and equipment, all general intangibles and contract rights
and other property and rights incidental to the ownership, lease or operation
thereof.
"Record Date" means a Record Date specified in the Notes, whether or
not such date is a Business Day.
"Recourse Indebtedness" means Indebtedness (a) as to which either
the Company, the Parent or any Subsidiary of the Company or the Parent (1)
provides credit support of any kind (including any undertaking, agreement or
instrument that would constitute Indebtedness), (2) is directly or indirectly
liable (as a guarantor or otherwise), or (3) constitutes the lender, and (b) a
default with respect to which (including any rights that the holders thereof may
have to take enforcement action against an Unrestricted Subsidiary) would permit
(upon notice, lapse of time or both) any holder of any other Indebtedness of the
Company, the Parent or any Subsidiary of the Company or the Parent to declare a
default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity.
"Reference Period" with regard to any Person means the four full
fiscal quarters ended immediately preceding any date upon which any
determination is to be made pursuant to the terms of the Notes or this
Indenture.
"Refinancing Indebtedness" means Indebtedness (including
Disqualified Capital Stock) (a) issued in exchange for, or the proceeds from the
issuance and sale of which are used substantially concurrently to repay, redeem,
defease, refund, refinance, discharge or otherwise retire for value, in whole or
in part, or (b) constituting an amendment, modification or supplement to, or a
deferral or renewal of ((a) and (b) above are, collectively, a "Refinancing"),
any Indebtedness
33
(including Disqualified Capital Stock) in a principal amount or, in the case of
Disqualified Capital Stock, liquidation preference, not to exceed (after
deduction of reasonable and customary fees and expenses incurred in connection
with the Refinancing plus the amount of any premium paid in connection with such
Refinancing) the lesser of (1) the principal amount or, in the case of
Disqualified Capital Stock, liquidation preference, of the Indebtedness
(including Disqualified Capital Stock) so Refinanced and (2) if such
Indebtedness being Refinanced was issued with an original issue discount, the
accreted value thereof (as determined in accordance with GAAP) at the time of
such Refinancing; provided, that (A) such Refinancing Indebtedness shall only be
used to refinance outstanding Indebtedness (including Disqualified Capital
Stock) of such Person issuing such Refinancing Indebtedness, (B) such
Refinancing Indebtedness shall (x) not have an Average Life shorter than the
Indebtedness (including Disqualified Capital Stock) to be so refinanced at the
time of such Refinancing and (y) in all respects, be no less contractually
subordinated or junior, if applicable, to the rights of Holders of the Notes
than was the Indebtedness (including Disqualified Capital Stock) to be
refinanced, (C) such Refinancing Indebtedness shall have a final stated maturity
or redemption date, as applicable, no earlier than the final stated maturity or
redemption date, as applicable, of the Indebtedness (including Disqualified
Capital Stock) to be so refinanced or, if sooner, 91 days after the Stated
Maturity of the Notes, and (D) such Refinancing Indebtedness shall be secured
(if secured) in a manner no more adverse to the Holders of the Notes than the
terms of the Liens (if any) securing such refinanced Indebtedness, including,
without limitation, the amount of Indebtedness secured shall not be increased.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the Issue Date, by and among the Company and the other
parties named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time.
"Reg S Permanent Global Note" means one or more permanent Global
Notes that shall be issued in an aggregate amount of denominations equal in
total to the outstanding principal amount of the Reg S Temporary Global Note
upon expiration of the Distribution Compliance Period.
"Reg S Temporary Global Note" means one or more temporary Global
Notes bearing the Private Placement Legend and the Reg S Temporary Global Note
Legend, issued in an aggregate amount of denominations equal in total to the
outstanding principal amount of the Notes initially sold in reliance on Rule 903
of Regulation S.
"Reg S Temporary Global Note Legend" means the legend set forth in
Section 2.6(g)(iii) hereof, which is required to be placed on all Reg S
Temporary
34
Global Notes issued under this Indenture.
"Regulation S" means Regulation S promulgated under the Securities
Act, as it may be amended from time to time, and any successor provision
thereto.
"Regulation S Global Note" means a Reg S Temporary Global Note or a
Reg S Permanent Global Note, as the case may be.
"Related Business" means the business conducted (or proposed to be
conducted) by Herbalife International, Inc. and its Subsidiaries as of the Issue
Date and any and all businesses that in the good faith judgment of the Board of
Directors of the Company are materially related, ancillary or complementary
businesses.
"Related Business Asset" means assets that the Company determines
will be used in a Related Business.
"Related Financing Transactions" means the financing transactions in
connection with the consummation of the Merger as described in the Offering
Memorandum.
"Related Party" means, with respect to any of the Principals, any
Person who controls, is controlled by or is under common control with such
Principal; provided, that for purposes of this definition "control" means the
beneficial ownership of more than 80% of the total voting power of a Person
normally entitled to vote in the election of directors, managers or trustees, as
applicable of a Person.
"Requirements of Law" means, collectively, any and all requirements
of any Governmental Authority including any and all laws, ordinances, rules,
regulations or similar statutes or case law.
"Responsible Officer" means, when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Definitive Note" means one or more Definitive Notes
bearing the Private Placement Legend, issued under this Indenture.
"Restricted Global Note" means one or more Global Notes bearing
35
the Private Placement Legend, issued under this Indenture.
"Restricted Investment" means, in one or a series of related
transactions, any Investment, other than other Permitted Investments.
"Restricted Payment" means, with respect to any Person:
(1) the declaration or payment of any dividend or other distribution
in respect of Equity Interests of such Person or any parent of such Person,
which, for purposes hereof expressly includes the payment of any Monitoring Fees
(or any comparable fees, reimbursements or payments of out-of-pocket expenses)
by such Person to any Person,
(2) any payment (except to the extent with Qualified Capital Stock)
on account of the purchase, redemption or other acquisition or retirement for
value of Equity Interests of such Person or any parent of such Person,
(3) other than with the proceeds from the substantially concurrent
sale of, or in exchange for, Refinancing Indebtedness any purchase, redemption,
or other acquisition or retirement for value of, any payment in respect of any
amendment of the terms of or any defeasance of, any Subordinated Indebtedness,
directly or indirectly, prior to the scheduled maturity, any scheduled repayment
of principal, or scheduled sinking fund payment, as the case may be, of such
Indebtedness, and
(4) any Restricted Investment by such Person;
provided, however, that the term "Restricted Payment" does not include (1) any
dividend, distribution or other payment on or with respect to Equity Interests
of an issuer to the extent payable solely in shares of Qualified Capital Stock
of such issuer, or (2) any dividend, distribution or other payment to the
Company, or to any Guarantor, by the Company, any Subsidiary of the Company or
the Parent, or (3) any Investment in the Company or any Guarantor by the
Company, any Guarantor or any Subsidiary of the Company or the Parent; provided,
that the consideration for such Investment shall be received by the Company or
any Guarantor, or (4) the repurchase of Equity Interests deemed to occur upon
the exercise of stock options if such Equity Interests represent a portion of
the exercise price thereof, or (5) the payment of the Merger Consideration and
Related Costs as described in the Offering Memorandum.
"Rule 144" means Rule 144 promulgated under the Securities Act, as
it may be amended from time to time, and any successor provision thereto.
"Rule 144A" means Rule 144A promulgated under the Securities Act,
36
as it may be amended from time to time, and any successor provision thereto.
"SEC" means the United States Securities and Exchange Commission, or
any successor agency.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the SEC thereunder.
"Securities Intermediary" means The Bank of New York, as securities
intermediary under the Security Agreement.
"Security Agreement" means the Security and Control Agreement, dated
as of the Issue Date, among the Company, the Trustee and the Securities
Intermediary.
"Senior Debt" of the Company or any Guarantor means Indebtedness
(including any obligation in respect of the Credit Agreement, and interest,
whether or not allowable, accruing on Indebtedness incurred pursuant to the
Credit Agreement after the filing of a petition initiating any proceeding under
any bankruptcy, insolvency or similar law) of the Company or such Guarantor
arising under the Credit Agreement or that, by the terms of the instrument
creating or evidencing such Indebtedness, is expressly designated Senior Debt
and made senior in right of payment to the Notes or the applicable Guarantee;
provided, that in no event shall Senior Debt include (a) Indebtedness to any
Subsidiary of the Company or the Parent or any officer, director or employee of
the Company or the Parent or any Subsidiary of the Company or the Parent, (b)
Indebtedness incurred in violation of the terms of this Indenture; provided,
that Indebtedness under the Credit Agreement shall not cease to be Senior Debt
as a result of this clause (b) if the lenders thereunder obtained a certificate
from an executive officer of the Company on the date such Indebtedness was
incurred certifying that the incurrence of such Indebtedness was not prohibited
by this Indenture, (c) Indebtedness to trade creditors, (d) Disqualified Capital
Stock, (e) Capitalized Lease Obligations, and (f) any liability for taxes owed
or owing by the Company or such Guarantor.
"Series A Notes" means the 11 3/4% Series A Senior Subordinated
Notes due 2010 issued on the Issue Date.
"Series B Notes" means the 11 3/4% Series B Senior Subordinated
Notes due 2010 issued pursuant to the Exchange Offer.
"Shelf Registration Statement" shall have the meaning set forth in
the Registration Rights Agreement.
37
"Significant Subsidiary" shall have the meaning provided under
Regulation S-X of the Securities Act as in effect on the Issue Date.
"SL Obligation" means the monetary obligation of a person under (a)
a so-called synthetic, off-balance sheet or tax retention lease, or (b) an
agreement for the use or possession of property creating obligations that do not
appear on the balance sheet of such person but which, upon the insolvency or
bankruptcy of such person, would be characterized as the indebtedness of such
person (without regard to accounting treatment).
"Special Record Date" means, for payment of any Defaulted Interest,
a date fixed by the Paying Agent pursuant to Section 2.12 hereof.
"Stated Maturity," when used with respect to any Note, means July
15, 2010.
"Subordinated Indebtedness" means Indebtedness of the Company or a
Guarantor that is subordinated in right of payment by its terms or the terms of
any document or instrument or instrument relating thereto ("contractually") to
the Notes or such Guarantee, as applicable, in any respect.
"Subsidiary," with respect to any Person, means (1) a corporation a
majority of whose Equity Interests with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly, owned
by such Person, by such Person and one or more Subsidiaries of such Person or by
one or more Subsidiaries of such Person, and (2) any other Person (other than a
corporation) in which such Person, one or more Subsidiaries of such Person, or
such Person and one or more Subsidiaries of such Person, directly or indirectly,
at the date of determination thereof has a majority ownership interest, or (3) a
partnership in which such Person or a Subsidiary of such Person is, at the time,
a general partner and in which such Person, directly or indirectly, at the date
of determination thereof has a majority ownership interest. Notwithstanding the
foregoing, an Unrestricted Subsidiary shall not be a Subsidiary of the Company,
the Parent or of any Subsidiary of the Company or the Parent. Unless the context
requires otherwise, Subsidiary means each direct and indirect Subsidiary of the
Company and the Parent.
"Tax Amounts CPA" means PricewaterhouseCoopers L.L.P. or any other
certified public accounting firm of national reputation. The Tax Amounts CPA
shall reasonably determine for each Tax Determination Year, the Applicable Tax
Rate, the Final Determination Amount, Intercompany Service Receipts,
Intercompany Service Subpart F Income, Tax Amounts Payment and Parent Group Tax
Savings Amount.
38
"Tax Amounts Payment" means, in respect of any Tax Determination
Year, an amount payable to Tax Amounts Recipients equal to the lesser of
(hereinafter referred to as the "Initial Limitation") (A) the product of (x) the
Applicable Tax Rate and (y) the Intercompany Service Subpart F Income that is
(or would be) includible in the gross income of the Tax Amounts Recipients
(assuming, for this purpose, that each such Tax Amount Recipient is a "United
States shareholder" as defined in section 951(b) of the Code) for such year
under section 951(a) of the Code, (B) the Parent Group Tax Savings Amount for
such year, (C) the product of (x) 6% and (y) the sum of (i) Consolidated Net
Income of the Parent Group for such year, (ii) Consolidated income tax expense
for the Parent Group for such year, and (iii) Tax Amount Payments made to Tax
Amounts Recipients during such year, and (iv) in the case of the fiscal year
ending December 31, 2002, the non-recurring expenses and charges of the Company
and Herbalife International, Inc. related to the Merger and Related Financing
Transactions, to the extent such non-recurring expenses and charges of the
Company and Herbalife International, Inc. related to the merger and Related
Financing Transactions were treated as deductions for purposes of computing
Consolidated Net Income for such year or (D) $10,000,000. The Initial Limitation
shall be reduced (but not below zero) by any Final Determination Amount in
respect of a previous Tax Determination Year. A Final Determination Amount shall
be applied to reduce an Initial Limitation for the Tax Determination Year during
which the Final Determination in respect of such Final Determination Amount
occurs. A Final Determination Amount shall be deemed to be reduced to the extent
that such Final Determination Amount has been applied to reduce an Initial
Limitation. Thereafter, the remaining Final Determination Amount, if any, shall
be applied to reduce the Initial Limitation for each successive Tax
Determination Year in like fashion until such Final Determination Amount has
been reduced to zero.
"Tax Amounts Recipient" means, in respect of any Tax Determination
Year, persons who hold capital stock of Holdings on December 31 of such year or,
if earlier, on the last day of such year that Holdings continues to be a
"controlled foreign corporation" as defined under section 957 of the Code.
"Tax Determination Year" means the calendar year (and, in the case
of the 2002 calendar year, the relevant portion thereof) in respect of which a
Tax Amounts Recipient is (or would be) required to include in gross income under
section 951(a) of the Code his pro rata share of Intercompany Service Subpart F
Income (assuming for this purpose, that such Tax Amounts Recipient is a "United
States shareholder" as defined in Section 951(b) of the Code).
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
39
"Transfer Restricted Notes" means Global Notes and Definitive Notes
that bear or are required to bear the Private Placement Legend, issued under
this Indenture.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means such successor serving hereunder.
"UCC" means the Uniform Commercial Code as in effect from time to
time in the State of New York.
"Unrestricted Definitive Note" means one or more Definitive Notes
that do not bear and are not required to bear the Private Placement Legend,
issued under this Indenture.
"Unrestricted Global Note" means one or more permanent Global Notes
that do not bear and are not required to bear the Private Placement Legend,
issued under this Indenture.
"Unrestricted Subsidiary" means any subsidiary of the Company or
Parent that does not directly, indirectly or beneficially own any Capital Stock
of, and Subordinated Indebtedness of, or own or hold any Lien on any property
of, the Company or the Parent or any other Subsidiary of the Company or Parent
and that, at the time of determination, shall be an Unrestricted Subsidiary (as
designated by the Board of Directors of the Company); provided, that such
Subsidiary at the time of such designation (a) has no Recourse Indebtedness; (b)
is not party to any agreement, contract, arrangement or understanding with the
Company, Parent or any Subsidiary of the Company or Parent unless the terms of
any such agreement, contract, arrangement or understanding are no less favorable
to the Company or Parent or such Subsidiary than those that might be obtained at
the time from Persons who are not Affiliates of the Company; (c) is a Person
with respect to which neither the Company, Parent nor any Subsidiary of the
Company or Parent has any direct or indirect obligation (x) to subscribe for
additional Equity Interests or (y) to maintain or preserve such Person's
financial condition or to cause such Person to achieve any specified levels of
operating results; and (d) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the Company, Parent
or any Subsidiary of the Company or Parent. The Board of Directors of the
Company may designate any Unrestricted Subsidiary to be a Subsidiary, provided,
that (1) no Default or Event of Default is existing or shall occur as a
consequence thereof and (2) immediately after giving effect to such designation,
on a pro forma basis, the Parent could incur at least $1.00 of Indebtedness
pursuant to the Debt Incurrence Ratio of Section 4.7. Each such designation
shall be evidenced by filing with the Trustee a certified copy of the resolution
giving effect to such designation and an
40
Officers' Certificate certifying that such designation complied with the
foregoing conditions.
"U.S. Government Obligations" means direct non-callable obligations
of, or non-callable obligations guaranteed by, the United States of America for
the payment of which obligation or guarantee the full faith and credit of the
United States of America is pledged.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under
the Securities Act.
"Voting Equity Interests" means Equity Interests which at the time
are entitled to vote in the election of, as applicable, directors, members or
partners generally.
"Wholly-Owned Subsidiary" means a Subsidiary all the Equity
Interests of which (other than directors' qualifying shares) are owned by the
Parent or one or more Wholly-Owned Subsidiaries of the Parent.
Section 1.2 Other Definitions
Defined in
Term Section
---- ----------
"Acceleration Notice" 6.2
"Affiliate Transaction" 4.12
"Asset Sale" 4.13
"Asset Sale Amount" 4.13
"Asset Sale Offer" 4.13
"Asset Sale Offer Amount" 4.13
"Asset Sale Offer Period" 4.13
"Asset Sale Offer Price" 4.13
"Authentication Order" 2.2
"Benefitted Party" 10.1
"Change of Control Offer" 4.14
"Change of Control Offer Period" 4.14
"Change of Control Purchase Date" 4.14
"Change of Control Purchase Price" 4.14
"Covenant Defeasance" 8.3
"Debt Incurrence Ratio" 4.7
41
"Defaulted Interest" 2.7
"Determination Date" 1.1 Leverage Ratio
"DTC" 2.3
"Event of Default" 6.1
"Excess Cash Flow Amount" 4.15
"Excess Cash Flow Offer" 4.15
"Excess Cash Flow Purchase Price" 4.15
"Excess Proceeds" 4.13
"Guarantee Obligations" 10.1
"incur" or "incurrence" 4.7
"Incurrence Date" 4.7
"Investment Company Act" 4.18
"Legal Defeasance" 8.2
"LSE" 2.3
"Mandatory Redemption" 3.8
"Mandatory Redemption Date" 3.8
"Mandatory Redemption Price" 3.8
"Original Credit Agreement" 1.1 Credit Agreement
"Paying Agent" 2.3
"Payment Notice" 11.2
"Payment Blockage Period" 11.2
"Payment Default" 11.2
"Refinancing" 1.1 Refinancing Indebtedness
"Registrar" 2.3
"Secured Proceeds Account" 3.8
"Transaction Date" 1.1 Consolidated Coverage Ratio
"Triggering Event" 3.8
Section 1.3 Incorporation by Reference of Trust Indenture Act
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture.
42
The following TIA terms used in this Indenture have the following
meanings:
"Commission" means the SEC;
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Notes means the Company, each Guarantor and any
successor obligor upon the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
Section 1.4 Rules of Construction
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article,
Section or other subdivision; and
(7) references to sections of or rules under the Securities
Act and the Exchange Act shall be deemed to include substitute,
43
replacement of successor sections or rules adopted by the SEC from
time to time.
ARTICLE II
THE NOTES
Section 1.5 Form and Dating
(1) General. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The Notes
may have notations, legends or endorsements required by law, stock exchange rule
or usage. Each Note shall be dated the date of its authentication. The Notes
shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute,
and are hereby expressly made, a part of this Indenture and the Company, the
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be
controlling.
(2) Global Notes. Notes issued in global form shall be substantially
in the form of Exhibit A attached hereto (including the Global Note Legend
thereon and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Notes issued in definitive form shall be substantially in the form of
Exhibit A attached hereto (but without the Global Note Legend thereon and
without the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the Notes
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.6 hereof.
(3) Euroclear and Clearstream Procedures Applicable. The provisions
of the "Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Clearstream
Banking Luxembourg" and "Customer Handbook" of Clearstream in effect at the
relevant time shall be applicable to transfers of beneficial interests in the
44
Regulation S Global Notes that are held by Participants through Euroclear or
Clearstream.
Section 1.6 Execution and Authentication
Two Officers shall sign the Notes for the Company by manual or
facsimile signature. In the case of Definitive Notes, such signatures may be
imprinted or otherwise reproduced on such Notes. If an Officer whose signature
is on a Note no longer holds that office at the time a Note is authenticated,
the Note shall nevertheless be valid. A Note shall not be valid until
authenticated by the manual signature of an authorized signatory of the Trustee.
The signature shall be conclusive evidence that the Note has been authenticated
under this Indenture. The Trustee shall, upon a written order of the Company
signed by an Officer (an "Authentication Order"), authenticate Notes for
issuance up to the aggregate principal amount stated in such Authentication
Order; provided that Notes authenticated for issuance on the Issue Date shall
not exceed $165,000,000 in aggregate principal amount. The Trustee may appoint
an authenticating agent acceptable to the Company to authenticate Notes. An
authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with Holders or an Affiliate of the Company.
Section 1.7 Registrar, Paying Agent and Depositary
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where Notes may be presented for registration
of transfer or for exchange ("Registrar") and an office or agency where Notes
may be presented for payment ("Paying Agent"). The Registrar shall keep a
register of the Notes and of their transfer and exchange. The Company may
appoint one or more co-registrars and one or more additional paying agents. The
term "Registrar" includes any co-registrar and the term "Paying Agent" includes
any additional paying agent. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company shall notify the Trustee in
writing of the name and address of any Agent not a party to this Indenture. If
the Company fails to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may
act as Paying Agent or Registrar. The Company initially appoints The Depository
Trust Company ("DTC") to act as Depositary with respect to the Global Notes. The
Company initially appoints the Trustee to act as the Registrar and Paying Agent
and to act as Notes Custodian with respect to the Global Notes.
Section 1.8 Paying Agent to Hold Money in Trust
45
The Company shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Liquidated Damages, if any, or interest on the Notes
(whether such money has been distributed to it by the Company or any other
obligor of the Notes), and shall notify the Trustee of any default by the
Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a Subsidiary) shall have no further liability for the money.
If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold
in a separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent for the Notes.
Section 1.9 Holder Lists
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish, or shall cause the Registrar
(if other than the Company) to furnish, to the Trustee at least seven Business
Days before each Interest Payment Date and at such other times as the Trustee
may request in writing, a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of the Holders of Notes and
the Company shall otherwise comply with TIA Section 312(a).
Section 1.10 Transfer and Exchange
(1) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes shall be exchanged
by the Company for Definitive Notes if (i) the Company delivers to the Trustee
notice from the Depositary that (x) the Depositary is unwilling or unable to
continue to act as Depositary for the Global Notes and the Company thereupon
fails to appoint a successor Depositary within 120 days or (y) the Depositary is
no longer a clearing agency registered under the Exchange Act, (ii) the Company
in its sole discretion determines that the Global Notes (in whole but not in
part) should be exchanged for Definitive Notes and delivers a written notice to
such effect to the
46
Trustee or (iii) upon request of the Trustee or Holders of a majority of the
aggregate principal amount of outstanding Notes if there shall have occurred and
be continuing a Default or Event of Default with respect to the Notes; provided
that in no event shall the Reg S Temporary Global Note be exchanged by the
Company for Definitive Notes prior to (x) the expiration of the Distribution
Compliance Period and (y) the receipt by the Registrar of any certificate
identified by the Company and its counsel to be required pursuant to Rule 903 or
Rule 904 under the Securities Act. Upon the occurrence of any of the preceding
events in (i), (ii) or (iii) above, Definitive Notes shall be issued in such
names as the Depositary shall instruct the Trustee. Global Notes also may be
exchanged or replaced, in whole or in part, as otherwise provided in this
Section 2.6 or as provided in Sections 2.7 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.6 or Section 2.7 or 2.10 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Note. A Global Note may not be exchanged for another Note other than as provided
in this Section 2.6(a), however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.6(b), (c) or (f) hereof.
(2) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes shall be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Transfers of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in the same
Restricted Global Note in accordance with the transfer restrictions set forth in
the Private Placement Legend; provided, however, that prior to the expiration of
the Distribution Compliance Period, transfers of beneficial interests in the Reg
S Temporary Global Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Beneficial interests
in any Unrestricted Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note. No
written orders or instructions shall be required to be delivered to the
Registrar to effect the transfers described in this Section 2.6(b)(i).
(2) All Other Transfers and Exchanges of Beneficial Interests
in Global Notes. In connection with all transfers and exchanges of
47
beneficial interests that are not subject to Section 2.6(b)(i) above, the
transferor of such beneficial interest must deliver to the Registrar either (A)
(1) an order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the Depositary
to credit or cause to be credited a beneficial interest in another Global Note
in an amount equal to the beneficial interest to be transferred or exchanged and
(2) instructions given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such increase
or (B) (1) an order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the Depositary
to cause to be issued a Definitive Note in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person in whose
name such Definitive Note shall be registered to effect the transfer or exchange
referred to in (B)(1) above; provided, that in no event shall Definitive Notes
be issued upon the transfer or exchange of beneficial interests in the Reg S
Temporary Global Note prior to (x) the expiration of the Distribution Compliance
Period and (y) the receipt by the Registrar of any certificates identified by
the Company or its counsel to be required pursuant to Rule 903 and Rule 904
under the Securities Act. Upon consummation of an Exchange Offer by the Company
in accordance with Section 2.6(f) hereof, the requirements of this Section
2.6(b)(ii) shall be deemed to have been satisfied upon receipt by the Registrar
of the instructions contained in the Letter of Transmittal delivered by the
Holder of such beneficial interests in the Restricted Global Notes. Upon
satisfaction of all of the requirements for transfer or exchange of beneficial
interests in Global Notes contained in this Indenture and the Notes or otherwise
applicable under the Securities Act, the Trustee shall adjust the principal
amount of the relevant Global Note(s) pursuant to Section 2.6(h) hereof.
(3) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a beneficial
interest in another Restricted Global Note if the transfer complies with the
requirements of Section 2.6(b)(ii) above and the Registrar receives the
following:
(2) if the transferee shall take delivery in the form of
a beneficial interest in the 144A Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(3) if the transferee shall take delivery in the form of
a beneficial interest in the Reg S Temporary Global Note or the Reg S
Permanent Global Note, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in item (2)
thereof; and
48
(4) if the transferee shall take delivery in the form of
an Institutional Accredited Investor Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(1) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the Unrestricted Global Note.
A beneficial interest in any Restricted Global Note may be exchanged by any
Holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note if the exchange or transfer complies
with the requirements of Section 2.6(b)(ii) above and:
(5) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights Agreement
and Section 2.6(f) hereof, and the Holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in the case of
a transfer, certifies in the applicable Letter of Transmittal that it is
not (1) a broker-dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule
144) of the Company;
(6) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(7) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(8) the Registrar receives the following: (1) if the
Holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial interest in an
Unrestricted Global Note, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in item (1)(a) thereof; or
(2) if the Holder of such beneficial interest in a Restricted Global Note
proposes to transfer such beneficial interest to a Person who shall take
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof; and, in each
such case set forth in this subparagraph (D), an Opinion of Counsel in
form, and from legal counsel, reasonably acceptable to the Registrar and
the Company to the effect that such exchange or transfer is in
49
compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.2 hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to subparagraph (B) or (D)
above. Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(3) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
(1) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any Holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:
(2) if the Holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in item (2)(a) thereof;
(3) if such beneficial interest is being transferred to
a QIB in accordance with Rule 144A, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (1) thereof;
(4) if such beneficial interest is being transferred to
a Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (2)
thereof;
(5) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item (3)(a)
thereof;
50
(6) if such beneficial interest is being transferred to
an Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3)(d) thereof, if applicable;
(7) if such beneficial interest is being transferred to
the Company or any of its subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(b)
thereof; or
(8) if such beneficial interest is being transferred
pursuant to an effective registration statement under the Securities Act,
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Restricted Global Note to be reduced accordingly pursuant to Section 2.6(h)
hereof, and the Company shall execute and, upon receipt of an Authentication
Order pursuant to Section 2.2 hereof, the Trustee shall authenticate and deliver
to the Person designated in the instructions a Restricted Definitive Note in the
appropriate principal amount. Any Restricted Definitive Note issued in exchange
for a beneficial interest in a Restricted Global Note pursuant to this Section
2.6(c) shall be registered in such name or names and in such authorized
denomination or denominations as the Holder of such beneficial interest shall
instruct the Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Trustee shall deliver such Restricted
Definitive Notes to the Persons in whose names such Notes are so registered. Any
Restricted Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.6(c)(i) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer contained
therein.
(1) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A Holder of a beneficial interest in a Restricted
Global Note may exchange such beneficial interest for an Unrestricted Definitive
Note or may transfer such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note only if:
(9) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights Agreement
and Section 2.6(f) hereof, and the Holder of such beneficial interest, in
the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person
51
participating in the distribution of the Exchange Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(10) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(11) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(12) the Registrar receives the following: (1) if the
Holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Definitive Note that does not bear
the Private Placement Legend, a certificate from such Holder in the form
of Exhibit C hereto, including the certifications in item (1)(b) thereof;
or (2) if the Holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a Definitive Note that does not bear
the Private Placement Legend, a certificate from such Holder in the form
of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), an Opinion of
Counsel in form, and from legal counsel, reasonably acceptable to the
Registrar and the Company to the effect that such exchange or transfer is
in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities Act.
(1) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any Holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest for an
Unrestricted Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of an Unrestricted Definitive Note, then,
upon satisfaction of the conditions set forth in Section 2.6(b)(ii) hereof, the
Trustee shall cause the aggregate principal amount of the applicable
Unrestricted Global Note to be reduced accordingly pursuant to Section 2.6(h)
hereof, and the Company shall execute and, upon receipt of an Authentication
Order pursuant to Section 2.2 hereof, the Trustee shall authenticate and deliver
to the Person designated in the instructions an Unrestricted Definitive Note in
the appropriate principal amount. Any Unrestricted Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.6(c)(iii) shall be
registered in such name or names and in such authorized denomination or
denominations as the Holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the
52
Participant or Indirect Participant. The Trustee shall deliver such Unrestricted
Definitive Notes to the Persons in whose names such Notes are so registered. Any
Unrestricted Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.6(c)(iii) shall not bear the Private Placement
Legend.
(2) Transfer or Exchange of Reg S Temporary Global Notes.
Notwithstanding the other provisions of this Section 2.6, a beneficial interest
in the Reg S Temporary Global Note may not be (A) exchanged for a Definitive
Note prior to (x) the expiration of the Distribution Compliance Period (unless
such exchange is effected by the Company, does not require an investment
decision on the part of the Holder thereof and does not violate the provisions
of Regulation S) and (y) the receipt by the Registrar of any certificates
identified by the Company or its counsel to be required pursuant to Rule
903(c)(3)(B) under the Securities Act or (B) transferred to a Person who takes
delivery thereof in the form of a Definitive Note prior to the events set forth
in clause (A) above or unless the transfer is pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 903 or Rule 904.
(4) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(1) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes
to exchange such Note for a beneficial interest in a Restricted Global Note or
to transfer such Restricted Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted Global Note, then,
upon receipt by the Registrar of the following documentation:
(2) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted
Global Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (2)(b) thereof;
(3) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(1) thereof; or
(4) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(2) thereof,
53
the Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Note, in the case of clause (B) above, the
144A Global Note, and in the case of clause (C) above, the Regulation S Global
Note.
(1) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange
such Note for a beneficial interest in an Unrestricted Global Note or transfer
such Restricted Definitive Note to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note only if:
(5) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights Agreement
and Section 2.6(f) hereof, and the Holder, in the case of an exchange, or
the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(6) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(7) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(8) the Registrar receives the following: (1) if the
Holder of such Restricted Definitive Notes proposes to exchange such Notes
for a beneficial interest in the Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or (2) if the Holder of such
Restricted Definitive Notes proposes to transfer such Notes to a Person
who shall take delivery thereof in the form of a beneficial interest in
the Unrestricted Global Note, a certificate from such Holder in the form
of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), an Opinion of
Counsel in form, and from legal counsel, reasonably acceptable to the
Registrar and the Company to the effect that such exchange or transfer is
in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.6(d)(ii), the Trustee shall cancel the Restricted Definitive
Notes so transferred or
54
exchanged and increase or cause to be increased the aggregate principal
amount of the Unrestricted Global Note.
(1) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note or
transfer such Definitive Notes to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note at any time. Upon
receipt of a request for such an exchange or transfer, the Trustee shall cancel
the applicable Unrestricted Definitive Note and increase or cause to be
increased the aggregate principal amount of one of the Unrestricted Global
Notes.
(2) Transfer or Exchange of Unrestricted Definitive Notes to
Beneficial Interest in Restricted Notes Prohibited. An Unrestricted Definitive
Note cannot be exchanged for, or transferred to Persons who take delivery
thereof in the form of, beneficial interests in a Restricted Global Note.
(3) Issuance of Unrestricted Global Notes. If any such
exchange or transfer from a Definitive Note to a beneficial interest is effected
pursuant to subparagraphs (ii)(B), (ii)(D) or (iii) of this Section 2.6(d) at a
time when an Unrestricted Global Note has not yet been issued, the Company shall
issue and, upon receipt of an Authentication Order in accordance with Section
2.2 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes
in an aggregate principal amount equal to the principal amount of Definitive
Notes so transferred.
(5) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.6(e), the Registrar shall register the transfer
or exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.6(e).
(1) Restricted Definitive Notes to Restricted Definitive
Notes. Any Restricted Definitive Note may be transferred to and registered in
the name of Persons who take delivery thereof in the form of a Restricted
Definitive Note if the Registrar receives the following:
55
(2) if the transfer shall be made pursuant to Rule 144A,
then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;
(3) if the transfer shall be made pursuant to Rule 903
or Rule 904 under the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications
in item (2) thereof; and
(4) if the transfer shall be made pursuant to any other
exemption from the registration requirements of the Securities Act, then
the transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel required
by item (3) thereof, if applicable.
(1) Restricted Definitive Notes to Unrestricted Definitive
Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for
an Unrestricted Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of an Unrestricted Definitive Note if:
(5) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights Agreement
and Section 2.6(f) hereof, and the Holder, in the case of an exchange, or
the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(6) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(7) any such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(8) the Registrar receives the following: (1) if the
Holder of such Restricted Definitive Notes proposes to exchange such Notes
for an Unrestricted Definitive Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item (1)(d)
thereof; or (2) if the Holder of such Restricted Definitive Notes proposes
to transfer such Notes to a Person who shall take delivery thereof in the
form of an Unrestricted Definitive Note, a certificate from such Holder in
the form of
56
Exhibit B hereto, including the certifications in item (4) thereof; and,
in each such case set forth in this subparagraph (D), an Opinion of
Counsel in form, and from legal counsel, reasonably acceptable to the
Registrar and the Company to the effect that such exchange or transfer is
in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities Act.
(1) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes to a
Person who takes delivery thereof in the form of an Unrestricted Definitive
Note. Upon receipt of a request to register such a transfer, the Registrar shall
register the Unrestricted Definitive Notes pursuant to the instructions from the
Holder thereof.
(6) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.2 hereof,
the Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the sum of (A) the principal amount of the
beneficial interests in the Restricted Global Notes tendered for acceptance by
Persons that certify in the applicable Letters of Transmittal that (x) they are
not broker-dealers, (y) they are not participating in a distribution of the
Exchange Notes and (z) they are not affiliates (as defined in Rule 144) of the
Company, and accepted for exchange in the Exchange Offer and (B) the principal
amount of Definitive Notes exchanged or transferred for beneficial interests in
Unrestricted Global Notes in connection with the Exchange Offer pursuant to
Section 2.6(d)(ii) hereof and (ii) Definitive Notes in an aggregate principal
amount equal to the principal amount of the Restricted Definitive Notes accepted
for exchange in the Exchange Offer (other than Definitive Notes described in
clause (i)(B) immediately above). Concurrently with the issuance of such Notes,
the Trustee shall cause the aggregate principal amount of the applicable
Restricted Global Notes to be reduced accordingly, and the Company shall execute
and, upon receipt of an Authentication Order pursuant to Section 2.2 hereof, the
Trustee shall authenticate and deliver to the Persons designated by the Holders
of Definitive Notes so accepted Definitive Notes in the appropriate principal
amount.
(7) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(1) Private Placement Legend.
(2) Except as permitted by subparagraph (B) below, until
after the second anniversary of the later of the Issue Date and the
57
last date on which the Company or any Affiliate of the Company was owner
of such Note (or any predecessor security) (or such shorter period of time
as permitted by Rule 144(k) under the Securities Act or any successor
provision thereunder) (or such longer period of time as may be required
under the Securities Act or applicable state securities law in the opinion
of counsel for the Company, unless otherwise agreed by the Company and the
Holder thereof) , each Global Note and each Definitive Note (and all Notes
issued in exchange therefor or substitution thereof) shall bear the legend
in substantially the following form:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED, AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT
OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE. BY
ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(i) REPRESENTS THAT(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE ACT) (A"QIB"), (B) IT HAS ACQUIRED THIS NOTE IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE ACT OR (C)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT) (AN "IAI"),
(ii) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT
(A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR 904 OF THE ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144 UNDER THE ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE
OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH
THE ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE
TO THE COMPANY) OR (G) PURSUANT TO AN
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EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND
(iii) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE THE
MEANING GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE ACT. THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF
THIS NOTE IN VIOLATION OF THE FOREGOING."
(3) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(iv), (c)(ii),
(c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this Section 2.6
(and all Notes issued in exchange therefor or substitution thereof) shall
not bear the Private Placement Legend.
(1) Global Note Legend. To the extent required by the
Depositary, each Global Note shall bear legends in substantially the following
forms:
"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 2.6 OF THE INDENTURE, (II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION
2.6(a) 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 COMPANY."
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY
THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF
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SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN."
(2) Reg S Temporary Global Note Legend. To the extent required
by the Depositary, each Reg S Temporary Global Note shall bear a legend in
substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE
AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR
THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE
ENTITLED TO RECEIVE CASH PAYMENTS OF INTEREST DURING THE PERIOD WHICH SUCH
HOLDER HOLDS THIS NOTE. NOTHING IN THIS LEGEND SHALL BE DEEMED TO PREVENT
INTEREST FROM ACCRUING ON THIS NOTE."
(8) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Note shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who shall take delivery thereof
in the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement may be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who shall take delivery thereof in the form of a beneficial interest
in another Global Note, such other
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Global Note shall be increased accordingly and an endorsement may be made on
such Global Note by the Trustee or by the Depositary at the direction of the
Trustee to reflect such increase.
(9) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon receipt of an Authentication Order.
(2) No service charge shall be made to a Holder of a
beneficial interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Sections 2.10,
3.6, 4.13 and 4.14 hereof).
(3) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part.
(4) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes shall
be the valid obligations of the Company, evidencing the same Indebtedness, and
entitled to the same benefits under this Indenture, as the Global Notes or
Definitive Notes surrendered upon such registration of transfer or exchange.
(5) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period beginning at
the opening of business 15 days before the day of any selection of Notes for
redemption under Section 3.2 hereof and ending at the close of business on the
day of selection, (B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part or (C) to register the transfer of or to
exchange a Note between a Record Date and the next succeeding Interest Payment
Date.
(6) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem and treat
the Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on such
Notes and for all other purposes, and none of the Trustee, any Agent or the
Company shall be affected by notice to the contrary.
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(7) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.2 hereof.
(8) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.6 to effect
a registration of transfer or exchange may be submitted by facsimile.
Notwithstanding anything herein to the contrary, as to any
certifications and certificates delivered to the Registrar pursuant to this
Section 2.6, the Registrar's duties shall be limited to confirming that any such
certifications and certificates delivered to it are in the form of Exhibits A,
B, C and D attached hereto. The Registrar shall not be responsible for
confirming the truth or accuracy of representations made in any such
certifications or certificates.
Section 1.11 Replacement Notes
If any mutilated Note is surrendered to the Trustee or the Company
and the Trustee and the Company receive evidence (which evidence may be from the
Trustee) to their satisfaction of the destruction, loss or theft of any Note,
the Company shall issue and the Trustee, upon receipt of an Authentication
Order, shall authenticate a replacement Note if the Trustee's requirements are
met. If required by the Trustee or the Company, an indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the Trustee, the
Company and the Guarantors to protect the Company, the Guarantors, the Trustee,
any Agent and any authenticating agent from any loss that any of them may suffer
if a Note is replaced. The Company may charge for its expenses in replacing a
Note. Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 1.12 Outstanding Notes
The Notes outstanding at any time are all the Notes authenticated by
the Trustee (including any Note represented by a Global Note) except for those
cancelled by it or at its direction, 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 2.8
as not outstanding. Except as set forth in Section 2.9 hereof, a Note does not
cease to be outstanding because the Company or an Affiliate of the Company holds
the Note. If a Note is replaced pursuant to Section 2.7 hereof, such Note,
together with the Guarantee of that particular Note endorsed thereon, ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser. If the principal amount of any
Note is considered paid under Section 4.1
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hereof, it ceases to be outstanding and interest on it ceases to accrue. If the
Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
thereof) holds, on a redemption date or the maturity date, money sufficient to
pay Notes payable on that date, then on and after that date such Notes shall be
deemed to be no longer outstanding and shall cease to accrue interest.
Section 1.13 Treasury Notes
In determining whether the Holders of the required principal amount
of Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company, shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes that a Responsible Officer of the Trustee actually knows are so owned
shall be so disregarded.
Section 1.14 Temporary Notes
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of Definitive Notes but may have variations that the Company considers
appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, at and after the consummation of the
Merger, the Company shall prepare and the Trustee shall authenticate Definitive
Notes in exchange for temporary Notes. Holders of temporary Notes shall be
entitled to all of the benefits of this Indenture.
Section 1.15 Cancellation
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent
(other than the Company or an Affiliate of the Company), and no one else, shall
cancel all Notes surrendered for registration of transfer, exchange, payment,
replacement or cancellation and shall dispose of cancelled Notes (subject to the
record retention requirement of the Exchange Act) in accordance with its
procedures for the disposition of cancelled securities in effect are as of the
date of such disposition. Certification of the disposition of all cancelled
Notes shall be delivered to the Company. The Company may not issue new Notes to
replace Notes that it has paid or that have been delivered to the Trustee for
cancellation. If the Company shall
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acquire any of the Notes, such acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Notes unless and until the
same are surrendered to the Trustee for cancellation pursuant to this Section
2.11.
Section 1.16 Defaulted Interest
Any interest on any Note which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date plus, to the extent
lawful, any interest payable on the defaulted interest at the rate and in the
manner provided in Section 4.1 hereof and in the Note (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder on the
relevant Record Date, and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes are registered at
the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee and the Paying Agent in
writing of the amount of Defaulted Interest proposed to be paid on
each Note and the date of the proposed payment, and at the same time
the Company shall deposit with the Paying Agent an amount of cash
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements reasonably
satisfactory to the Paying Agent for such deposit prior to the date
of the proposed payment, such cash when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as provided in this clause (1). Thereupon the Paying Agent
shall fix a "Special Record Date" for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Paying Agent of the notice of the
proposed payment. The Paying Agent shall promptly notify the Company
and the Trustee of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder
at its address as it appears in the Note register maintained by the
Registrar not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the persons in whose names the
Notes (or their respective predecessor Notes) are registered on such
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Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed, and upon
such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee and the Paying Agent of the
proposed payment pursuant to this clause, such manner shall be
deemed practicable by the Trustee and the Paying Agent.
Subject to the foregoing provisions of this Section 2.12, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
Section 1.17 CUSIP Numbers
The Company in issuing the Notes may use "CUSIP" and/or "ISIN"
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP"
and/or "ISIN" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of 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 Company shall
promptly notify the Trustee of any change in the "CUSIP" and/or "ISIN" numbers.
Section 1.18 Issuance of Additional Notes
The Company may, subject to Section 4.7 hereof and applicable law,
issue additional Notes under this Indenture. The Notes issued on the Issue Date
and any additional Notes subsequently issued shall be treated as a single class
for all purposes under this Indenture.
ARTICLE III
REDEMPTION
Section 1.19 Notices to trustee
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.7 hereof, it shall furnish to the Trustee, at
least 30 days (unless a shorter period is acceptable to the Trustee) but not
more than 60 days
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(unless a longer period is acceptable to the Trustee) before a redemption date,
an Officers' Certificate setting forth (i) the clause of this 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.
Section 1.20 Selection of Notes to Be Redeemed
If less than all of the Notes are to be redeemed at any time, the
Trustee shall select the Notes or portions thereof to be redeemed among the
Holders of the Notes in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are listed or, if the
Notes are not so listed, on a pro rata basis, by lot or in accordance with any
other method the Trustee considers fair and appropriate. In the event of partial
redemption by lot, the particular Notes to be redeemed shall be selected, unless
otherwise provided herein, not less than 20 nor more than 60 days prior to the
redemption date by the Trustee from the outstanding Notes not previously called
for redemption.
The Trustee shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes in denominations of larger than $1,000 selected shall be in amounts of
$1,000 or integral multiples of $1,000; except that if all of the Notes of a
Holder are to be redeemed, the entire outstanding amount of Notes held by such
Holder, even if not an integral multiple of $1,000, shall be redeemed. Except as
provided in the preceding sentence, provisions of this Indenture that apply to
Notes called for redemption also apply to portions of Notes called for
redemption.
Section 1.21 Notice of Redemption
Subject to the provisions of Section 3.7 hereof, at least 30 days
but not more than 60 days before a redemption date, the Company shall mail or
cause to be mailed, by first class mail, a notice of redemption to each Holder
whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed (including the
CUSIP or ISIN number, if any) and shall state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, on or after the
redemption
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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;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and after
the redemption date;
(7) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(8) that no representation is made as to the correctness or accuracy
of the CUSIP or ISIN number, if any, listed in such notice or printed on the
Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 15 days prior to the
redemption date such notice is to be given (unless a shorter period shall be
acceptable to the Trustee), an Officers' Certificate requesting that the Trustee
give such notice and setting forth the information to be stated in such notice
as provided in the preceding paragraph.
Section 1.22 Effect of Notice of Redemption
Once notice of redemption is mailed in accordance with Section 3.3
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 1.23 Deposit of Redemption Price
On or before the redemption date, the Company shall deposit with the
Trustee or with the Paying Agent immediately available funds sufficient to pay
the redemption price of and accrued and unpaid interest (and Liquidated Damages,
if any) on all Notes to be redeemed on that date. The Trustee or the Paying
Agent shall promptly return to the Company any money deposited with the Trustee
or the Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued and unpaid interest (and Liquidated Damages, if
any) on, all Notes to be redeemed.
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If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after an interest Record Date but on or prior to the related Interest
Payment Date, then any accrued and unpaid interest (and Liquidated Damages, if
any) shall be paid to the Person in whose name such Note was registered at the
close of business on such Record Date. If any Note called for redemption shall
not be so paid upon surrender for redemption because of the failure of the
Company to comply with the preceding paragraph, interest shall be paid on the
unpaid principal, from the redemption date until such principal is paid, and to
the extent lawful on any interest not paid on such unpaid principal, in each
case at the rate provided in the Notes and in Section 4.1 hereof.
Section 1.24 Notes Redeemed in Part
Upon surrender of a Note that is redeemed in part, the Company shall
issue and, upon receipt of an Authentication Order, the Trustee shall
authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
Section 1.25 Optional Redemption
(1) Except as set forth in clause (b) of this Section 3.7, the
Company shall not have the option to redeem the Notes pursuant to this Section
3.7 prior to July 15, 2006. The Notes shall be redeemable for cash at the option
of the Company, in whole or in part, at any time on or after July 15, 2006, upon
not less than 30 days nor more than 60 days prior notice mailed by first class
mail to each Holder at its last registered address, at the following redemption
prices (expressed as percentages of the principal amount) if redeemed during the
12-month period commencing July 15 of the years indicated below, in each case
(subject to the right of Holders of record on a Record Date to receive the
corresponding interest due (and the corresponding Liquidated Damages, if any) on
the corresponding Interest Payment Date that is on or prior to such redemption
date) together with accrued and unpaid interest (and Liquidated Damages, if any)
thereon to the date of redemption of the Notes (the "Redemption Date"):
Year Percentage
---- ----------
2006..............................105.875 %
2007..............................102.938 %
2008 and thereafter...............100.000 %
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(2) Notwithstanding the provisions of clause (a) of this Section
3.7, at any time or from time to time on or prior to July 15, 2005, upon one or
more Qualified Equity Offerings up to 35% of the aggregate principal amount of
the Notes issued pursuant to this Indenture (only as necessary to avoid any
duplication, excluding any replacement Notes) may be redeemed at the Company's
option within 90 days of the closing of any such Qualified Equity Offering, on
not less than 30 days, but not more than 60 days, notice to each Holder of the
Notes to be redeemed, with cash received by the Company from the Net Cash
Proceeds of such Qualified Equity Offering, at a redemption price equal to
111.75% of principal, together with accrued and unpaid interest (and Liquidated
Damages, if any), thereon to the Redemption Date; provided, however, that
immediately following such redemption not less than 65% of the aggregate
principal amount of the Notes originally issued pursuant to this Indenture on
the Issue Date remain outstanding (only as necessary to avoid any duplication,
excluding any replacement Notes).
(3) Any redemption pursuant to this Section 3.7 shall be made
pursuant to the provisions of Sections 3.1 through 3.6 hereof.
Section 1.26 Mandatory Redemption
Upon issuance of the Notes, the Company shall deliver
$154,126,222.22 of the net proceeds from the sale of the Notes to the Securities
Intermediary. The Securities Intermediary shall invest such net proceeds in
Pledged Securities and shall deposit the Pledged Securities into a securities
account (the "Secured Proceeds Account") maintained by the Securities
Intermediary in accordance with the Security Agreement. In accordance with the
procedures set forth in the Security Agreement, the Securities Intermediary
shall liquidate the assets in the Secured Proceeds Account and deliver the
proceeds thereof (after deducting the customary expenses of the Trustee and
Securities Intermediary) to the Trustee to redeem Notes as set forth in clauses
(a) and (b) below.
(a) If (i) the Merger has not occurred prior to the close of
business on August 31, 2002 substantially in accordance with the terms of the
Merger Agreement, or (ii) the Company has determined that the Merger will not
occur by that date on substantially the terms set forth in the Merger Agreement
and the Offering Memorandum (each, a "Triggering Event"), the Company shall
promptly provide written notice thereof to the Trustee and shall, in accordance
with the procedures set forth in clause (b) below and in the Security Agreement,
redeem (a "Mandatory Redemption") $165,000,000 aggregate principal amount of
Notes, for a price equal to 101% of their principal amount, plus accrued and
unpaid interest thereon through the redemption date, together with Liquidated
Damages, if any (the "Mandatory Redemption Price"). The Mandatory Redemption
must occur no later
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than 10 Business Days after the Triggering Event (the "Mandatory Redemption
Date").
(b) In the event of a Mandatory Redemption, the Trustee, pursuant to
the written direction of the Company, shall direct the Securities Intermediary
to liquidate assets in the Secured Proceeds Account in an amount to generate
sufficient net proceeds (after deducting the customary expenses of the Trustee
and Securities Intermediary) to pay the Mandatory Redemption Price and to
deliver the net proceeds to the Trustee. Notice of a Mandatory Redemption shall
be mailed to each Holder of Notes to be redeemed, at its registered address, at
least five Business Days before the Mandatory Redemption Date. On the Mandatory
Redemption Date, upon payment to the Holders of the Mandatory Redemption Price,
a portion of each Holder's Notes (equal to that Holder's pro rata share of the
Notes to be redeemed) shall, automatically and without any further action by
that Holder, be deemed to be no longer outstanding for any purpose under this
Indenture.
(c) Except as set forth above, the Company shall not be required to
make mandatory redemption payments with respect to the Notes (however, the
Company is required to offer to repurchase Notes in accordance with the
provisions of Sections 4.13, 4.14 and 4.15 hereof) and the Notes shall not have
the benefit of any sinking fund.
ARTICLE IV
COVENANTS
Section 1.27 Payment of Notes
The Company shall pay or cause to be paid the principal of, premium,
if any, and interest on the Notes on the dates and in the manner provided in the
Notes. Principal, premium, if any, and interest shall be considered paid on the
date due if the Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 12:00 noon Eastern time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and interest then due. The Company shall pay all
Liquidated Damages, if any, in the same manner on the dates and in the amounts
set forth in the Registration Rights Agreement and herein.
The Company shall pay interest (including Accrued Bankruptcy
Interest in any proceeding under any Bankruptcy Law) on overdue principal at the
then applicable interest rate on the Notes to the extent lawful; it shall pay
interest (including Accrued Bankruptcy Interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (and Liquidated Damages, if
any) (without regard to any applicable grace period) at the same rate to the
extent lawful.
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Section 1.28 Maintenance of Office or Agency
The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company and the Parent in respect of the Notes and this
Indenture may be served. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company and the Parent 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.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such additional
designations; provided that no such designation or rescission shall in any
manner relieve the Company and the Parent of their obligation to maintain an
office or agency in the Borough of Manhattan, The City of New York, and for so
long as the Notes are listed on the LSE, in Luxembourg. The Company shall give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office as one such
office or agency of the Company in accordance with Section 2.3 hereof.
Section 1.29 SEC Reports and Reports to Holders
Whether or not the Company or Parent is subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company and Parent
shall deliver to the Trustee and to each Holder and prospective purchasers of
Notes identified to the Company by an Initial Purchaser, within 5 days after the
Company and Parent are or would have been (if the Company or Parent were subject
to such reporting obligations) required to file such with the SEC, annual and
quarterly financial statements substantially equivalent to financial statements
that would have been included in reports on Forms 10-K or 10-Q, if the Company
and Parent were subject to the requirements of Section 13 or 15(d) of the
Exchange Act, including, with respect to annual information only, a report
thereon by the Company's certified independent public accountants as such would
be required in such reports to the SEC, and, in each case, together with a
management's discussion and analysis of financial condition and results of
operations which would be so required and, unless the SEC shall not accept such
reports, file with the SEC the annual, quarterly and
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other reports which it is or would have been required to file with the SEC. In
addition, the Company, Parent and Holdings agree that prior to the consummation
of the Exchange Offer, they shall make available to the holders and the
securities analysts and prospective investors upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificate).
Section 1.30 Compliance Certificate
(1) The Company 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 Company, the Parent and the Subsidiaries of the Company
and the Parent during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company, the Parent and the Subsidiaries of the Company and the Parent have
kept, observed, performed and fulfilled their obligations under this Indenture,
and further stating, as to each such Officer signing such certificate, that to
his or her knowledge the Company, the Parent and the Subsidiaries of the Company
and the Parent are not in default in the performance or observance of any of the
terms, provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred and be continuing, describing all such Defaults or
Events of Default of which he or she may have knowledge and what action the
Company is taking or proposes to take with respect thereto) and that to his or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto. The
Company shall provide the Trustee with timely written notice of any change in
its fiscal year end, which currently ends on the Thursday closest to December
31.
(2) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, within five Business Days of any Officer becoming aware
of any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes to
take with respect thereto.
Section 1.31 Taxes
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The Company and the Parent shall pay, and shall cause each of the
Subsidiaries of the Company and the Parent to pay, prior to delinquency, all
material taxes, assessments, and governmental levies except such as are
contested in good faith and by appropriate proceedings or where the failure to
effect such payment would not have a material adverse effect on the ability of
the Company and the Guarantors to satisfy their obligations under the Notes, the
Guarantees and this Indenture.
Section 1.32 Stay, Extension and Usury Laws
The Company covenants (to the extent that it may lawfully do so)
that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it shall not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as though
no such law has been enacted.
Section 1.33 Limitation on Incurrence Of Additional Indebtedness and
Disqualified Capital Stock
Except as set forth in this Section 4.7, the Company shall not and
the Parent shall not, and neither the Company nor the Parent shall permit any
Subsidiary of the Company or the Parent to, directly or indirectly, issue,
assume, guaranty, incur, become directly or indirectly liable with respect to
(including as a result of an Acquisition), or otherwise become responsible for,
contingently or otherwise (individually and collectively, to "incur" or, as
appropriate, an "incurrence"), any Indebtedness (including Disqualified Capital
Stock and Acquired Indebtedness), other than Permitted Indebtedness.
Notwithstanding the foregoing if:
(1) no Default or Event of Default shall have occurred and be
continuing at the time of or would occur after giving effect on a pro forma
basis to such incurrence of Indebtedness, and
(2) on the date of such incurrence (the "Incurrence Date"), (x) the
Parent's Consolidated Coverage Ratio for the Reference Period immediately
preceding the Incurrence Date, after giving effect on a pro forma basis to such
incurrence of such Indebtedness and, to the extent set forth in the definition
of Consolidated Coverage Ratio, the use of proceeds thereof, would be at least
2.25 to
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1.0, if the Indebtedness is incurred on or prior to July 1, 2004, or would be at
least 2.50 to 1.0 if the Indebtedness is incurred thereafter (in each case, the
"Debt Incurrence Ratio") and (y) the Parent's Leverage Ratio does not exceed the
Applicable Leverage Ratio,
then the Company and the Guarantors may incur such Indebtedness (including
Disqualified Capital Stock).
In addition, the foregoing limitations of the first paragraph of this covenant
shall not prohibit:
(1) the incurrence by the Company or the incurrence by any Guarantor
of Purchase Money Indebtedness; provided, that
(1) the aggregate amount of such Indebtedness incurred and
outstanding at any time pursuant to this paragraph (a) (plus any
Refinancing Indebtedness issued to retire, defease, refinance,
replace or refund such Indebtedness) shall not exceed $15,000,000
(or the equivalent thereof, at the time of incurrence, in the
applicable foreign currency), and
(2) in each case, such Indebtedness shall not constitute more
than 100% of the cost to the Company or the cost to such Guarantor,
(determined in accordance with GAAP in good faith by the Board of
Directors of the Company), as applicable, of the property so
purchased, constructed, improved or leased;
(2) if no Event of Default shall have occurred and be continuing,
the incurrence by the Company or the incurrence by any Subsidiary of the Parent
or the Company of Indebtedness in an aggregate amount incurred and outstanding
at any time pursuant to this paragraph (b) (plus any Refinancing Indebtedness
incurred to retire, defease, refinance, replace or refund such Indebtedness) of
up to $25,000,000 (or the equivalent thereof, at the time of incurrence, in the
applicable foreign currencies), minus the amount of any Indebtedness (other than
Permitted Indebtedness) of any Non-Guarantors Subsidiaries then outstanding; and
(3) the incurrence by the Company or the incurrence by any Guarantor
of Indebtedness pursuant to the Credit Agreement in an aggregate amount incurred
and outstanding at any time pursuant to this paragraph (c), without regard to
the notional amount of any Interest Swap or Hedging Obligations relating thereto
that constitute Permitted Indebtedness pursuant to clause (f) of the definition
thereof, (plus any Refinancing Indebtedness incurred to retire, defease,
refinance, replace or refund such Indebtedness) of up to $205,000,000 (or the
equivalent thereof at the
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time of incurrence in the applicable foreign currency), minus the amount of any
such Indebtedness (1) retired with the Net Cash Proceeds from any Asset Sale
applied to permanently reduce the outstanding amounts or the commitments with
respect to such Indebtedness pursuant to clause (b) (2) of Section 4.13, (2)
assumed by a transferee in an Asset Sale and (3) the aggregate amount of all
mandatory principal payments and prepayments in respect of term loans thereunder
(excluding any such payments to the extent refinanced at the time of payment
under a replacement or refinancing thereof) actually made; provided, that, this
clause (3) shall not reduce the aggregate amount of Indebtedness available to be
incurred and outstanding by the Company and the Guarantors pursuant to this
clause (c) below $35,000,000.
Indebtedness (including Disqualified Capital Stock) of any Person
which is outstanding at the time such Person becomes a Subsidiary of the Company
or the Parent (including upon designation of any subsidiary or other Person as a
Subsidiary of the Company or the Parent) or is merged with or into or
consolidated with the Company or the Parent or a Subsidiary of the Company or
the Parent shall be deemed to have been incurred at the time such Person becomes
or is designated a Subsidiary of the Company or the Parent or is merged with or
into or consolidated with the Company or the Parent or a Subsidiary of the
Company or the Parent.
Notwithstanding any other provision of this Section 4.7, but only to
avoid duplication, a guarantee of the Company's Indebtedness or of the
Indebtedness of another Guarantor incurred in accordance with the terms of this
Indenture (other than Indebtedness incurred pursuant to clause (a) hereof)
issued at the time such Indebtedness was incurred or if later at the time the
guarantor thereof became a Subsidiary of the Company or the Parent shall not
constitute a separate incurrence, or amount outstanding, of Indebtedness. Upon
each incurrence the Company may designate pursuant to which provision of this
Section 4.7 such Indebtedness is being incurred and the Company may subdivide an
amount of Indebtedness and designate more than one provision pursuant to which
such amount of Indebtedness is being incurred and such Indebtedness shall not be
deemed to have been incurred or outstanding under any other provision of this
Section 4.7, except as stated otherwise in the foregoing provisions.
Section 1.34 Limitation on Liens
The Company shall not and the Guarantors shall not, and neither the
Company nor the Parent shall permit any Subsidiary of the Company or the Parent
to, create, incur, assume or suffer to exist any Lien of any kind, other than
Permitted Liens, upon any of their respective assets now owned or acquired on or
after the date of this Indenture or upon any income or profits therefrom
securing any of the Company's Indebtedness or any Indebtedness of any Guarantor
other than Indebtedness pursuant to Senior Debt, unless the Company and the
Parent provide,
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and cause the Subsidiaries of the Company and the Parent to provide,
concurrently therewith, that the Notes and the applicable Guarantees are equally
and ratably so secured; provided that if such Indebtedness is Subordinated
Indebtedness, the Lien securing such Subordinated Indebtedness shall be
contractually subordinate and junior to the Lien securing the Notes (and any
related applicable Guarantees) with the same relative priority as such
Subordinated Indebtedness shall have with respect to the Notes (and any related
applicable Guarantees).
Section 1.35 Limitation on Restricted Payments
(1) The Company shall not and the Parent shall not, and the Parent
shall not permit any Subsidiary of the Company or the Parent to, directly or
indirectly, make any Restricted Payment if, after giving effect to such
Restricted Payment on a pro forma basis:
(1) a Default or an Event of Default shall have occurred and
be continuing,
(2) the Parent is not permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Debt Incurrence Ratio in
Section 4.7 hereof, or
(3) the aggregate amount of all Restricted Payments made by
Herbalife International, Inc. and its Subsidiaries, the Company, the
Parent and the Subsidiaries of the Company and the Parent, as
applicable, including after giving effect to such proposed
Restricted Payment, on and after the Issue Date, would exceed,
without duplication, the sum of:
(1) 50% of the Parent's aggregate Consolidated Net
Income for the period (taken as one accounting period), commencing on the
first day of the first full fiscal quarter commencing after the Issue
Date, to and including the last day of the fiscal quarter ended
immediately prior to the date of each such calculation for which the
Parent's consolidated financial statements are required to be delivered to
the Trustee or, if sooner, filed with the SEC (or, in the event
Consolidated Net Income for such period is a deficit, then minus 100% of
such deficit); provided, that, solely for the purposes of determining the
Parent's aggregate Consolidated Net Income for purposes of this clause (a)
after the consummation of the Merger, the aggregate Parent's Consolidated
Net Income shall be determined from the first day of the first full fiscal
quarter commencing after the Issue Date after giving pro forma effect to
the Merger and the Related Financing Transactions
76
as if the Merger and the Related Financing Transactions had occurred on
the first day of such full fiscal quarter, plus
(2) the aggregate Net Cash Proceeds received by the
Company from a Capital Contribution or from the sale of the Company's
Qualified Capital Stock (other than (i) to the Parent or to a Subsidiary
of the Company or the Parent, (ii) to the extent applied in connection
with a Qualified Exchange or a Permitted Investment pursuant to clause (e)
of the definition thereof, and (iii) Net Cash proceeds received by the
Company from a Capital Contribution or from the sale of the Company's
Qualified Capital Stock or from a Capital Contribution in connection with
the Merger and Related Financing Transactions, or, (iv) to avoid
duplication, otherwise given credit for in any provision of the following
paragraph), after the Issue Date, plus
(3) except in each case, in order to avoid duplication,
to the extent any such payment or proceeds have been included in the
calculation of Consolidated Net Income, an amount equal to the net
reduction in Investments (other than returns of or from Permitted
Investments) in any Person resulting from cash distributions on or cash
repayments of any Investments, including payments of interest on
Indebtedness, dividends, repayments of loans or advances, or other
distributions or other transfers of assets, in each case to the Company or
any Guarantor or from the Net Cash Proceeds from the sale of any such
Investment or from redesignations of Unrestricted Subsidiaries as
Subsidiaries (valued in each case as provided in the definition of
"Investments"), not to exceed, in each case, the amount of Investments
previously made by the Company or any Guarantor in such Person, including,
if applicable, such Unrestricted Subsidiary, less the cost of disposition,
plus
(4) $7,500,000.
(2) The foregoing clause (a)(3) of this Section 4.9, however, shall
not prohibit:
(1) payments of up to an aggregate of $2,500,000 in Monitoring
Fees to the Principals and their Related Parties in any twelve month
period pursuant to the Monitoring Services Agreements plus
reasonable out-of-pocket expenses.
(3) Clauses (a)(2) and (3) of this Section 4.9, however, shall not
prohibit:
77
(1) payments of cash dividends to Holdings for repurchases of
Capital Stock from the Company's employees, distributors or
directors (or their heirs or estates) or employees or directors (or
their heirs or estates) of the Parent or any Subsidiary of the
Company or the Parent upon the death, disability or termination of
employment (or termination of distribution, in the case of a
distributor) in an aggregate amount to all employees or directors
(or their heirs or estates) not to exceed $5,000,000 in the
aggregate on and after the Issue Date, provided, such repurchases
are made with the proceeds of such dividends within three Business
Days of the payment of such dividends, or
(2) provided that (x) prior to declaration and disbursement of
a Tax Amounts Payment, Parent delivers to the Trustee an Officer's
Certificate (i) certifying that the Tax Amounts CPA has made the
determinations required to be made by the Tax Amounts CPA pursuant
to this Indenture and (y) setting forth in reasonable detail the
basis for the determination of the Tax Amounts Payment, then, with
respect to each Tax Determination Year, the disbursement of a Tax
Amounts Payment, following the close of such Tax Determination Year.
(4) Clause (a) of this Section 4.9 above, however, shall not
prohibit:
(1) any dividend, distribution or other payments by any
Subsidiary of the Company or the Parent on its Equity Interests that
is paid pro rata to all holders of such Equity Interests,
(2) a Qualified Exchange,
(3) the payment of any dividend on Qualified Capital Stock
within 60 days after the date of its declaration if such dividend
could have been made on the date of such declaration in compliance
with the foregoing provisions, and
(4) Investments made as a result of a Subsidiary of the Parent
or the Company becoming a Non-Guarantor Subsidiary as a result of
the release of the Guarantee of such Subsidiary in accordance with
the provisions described under Section 10.4 hereof; and
(5) Restricted Investments by the Company or any Guarantor,
without duplication, in Herbalife Korea Co. Ltd. for the
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purposes of cash collateralizing or otherwise securing Herbalife
Korea Co. Ltd.'s obligations in respect of the Korean Consumer
Refund Guarantee; provided that (i) the proceeds of any such
Restricted Investment are immediately deposited into a bank account
and used solely for the purposes of cash collateralizing or
otherwise securing Herbalife Korea Co. Ltd.'s obligations in respect
of the Korean Consumer Refund Guarantee and (ii) to the extent cash
deposits securing the Korean Consumer Refund Guarantee are no longer
required, the Parent shall cause Herbalife Korea Co. Ltd. to
immediately repay the Company or the Guarantor that made such
Restricted Investment such amount.
(5) The full amount of any Restricted Payment made pursuant to
clauses (b)(1), (c)(1), (d)(1), (d)(3), (d)(4)and (d)(5) of this Section 4.9
(but not pursuant clauses (c)(2) or (d)(2) of this Section 4.9), however, shall
be counted as Restricted Payments made for purposes of the calculation of the
aggregate amount of Restricted Payments available to be made referred to in
clause (a)(3) of this Section 4.9; provided, however, that if there is a Final
Determination in respect of any particular Tax Determination Year for which a
Tax Amounts Payment has been disbursed pursuant to the foregoing clause (C), the
Final Determination Amount related thereto (other than interest and penalties)
shall be counted as a Restricted Payment made for purposes of the calculation of
such aggregate Restricted Payments from and after the date such Final
Determination is made.
(6) For purposes of this Section 4.9, the amount of any Restricted
Payment made or returned, if other than in cash, shall be the fair market value
thereof, as determined in the good faith reasonable judgment of the Company's
Board of Directors, at the time made or returned, as applicable. Additionally,
within 5 days of each Restricted Payment in excess of $250,000 that is not a
Restricted Investment, the Company shall deliver an Officers' Certificate to the
Trustee describing in reasonable detail the nature of such Restricted Payment,
stating the amount of such Restricted Payment, stating in reasonable detail the
provisions of this Indenture pursuant to which such Restricted Payment was made
and certifying that such Restricted Payment was made in compliance with the
terms of this Indenture.
Section 1.36 Limitation on Dividends and Other Payment Restrictions Affecting
Subsidiaries
The Company shall not and the Parent shall not, and neither the
Company nor the Parent shall permit any Subsidiary of the Company or the Parent
to, directly or indirectly, create, assume or suffer to exist any consensual
restriction on the ability of any Subsidiary of the Company or the Guarantors to
pay dividends or make other distributions to or on behalf of, or to pay any
obligation to or on behalf
79
of, or otherwise to transfer assets or property to or on behalf of, or make or
pay loans or advances to or on behalf of, the Company, the Parent or any
Subsidiary of the Company or the Parent, except:
(1) restrictions imposed by the Notes or this Indenture or by the
Company's other Indebtedness (which may also be guaranteed by the
Guarantors) ranking pari passu in right of payment with the Notes or the
Guarantees, as applicable; provided, that such restrictions are no more
restrictive taken as a whole than those imposed by this Indenture and the
Notes,
(2) restrictions imposed by applicable law,
(3) existing restrictions under Existing Indebtedness (as in effect
on the Issue Date),
(4) restrictions under any Acquired Indebtedness not incurred in
violation of this Indenture or any agreement (including any Equity
Interest) relating to any property, asset, or business acquired by the
Company, the Parent or any Subsidiary of the Company or the Parent, which
restrictions in each case existed at the time of acquisition, were not put
in place in connection with or in anticipation of such acquisition and are
not applicable to any Person, other than the Person acquired, or to any
property, asset or business, other than the property, assets and business
so acquired,
(5) any restriction imposed by Indebtedness incurred under the
Credit Agreement or other Senior Debt incurred pursuant to Section 4.7
hereof; provided, that such restriction or requirement is no more
restrictive, taken as a whole, than that imposed by the Credit Agreement,
as of the consummation of the Merger,
(6) any restriction imposed by Indebtedness incurred by
Non-Guarantor Subsidiaries incurred pursuant to Section 4.7 hereof,
(7) restrictions with respect solely to any Subsidiary of the
Company or the Parent imposed pursuant to a binding agreement which has
been entered into for the sale or disposition of all of the Equity
Interests or assets of such Subsidiary; provided, that such restrictions
apply solely to the Equity Interests or assets of such Subsidiary which
are being sold,
(8) in connection with and pursuant to permitted Refinancings,
replacements of restrictions imposed pursuant to clause (1), (3) or (4) or
this clause (8) of this Section 4.10 that are not more restrictive taken
as a
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whole than those being replaced and do not apply to any other Person or
assets than those that would have been covered by the restrictions in the
Indebtedness so refinanced or replaced, and
(9) customary provisions with respect to the disposition or
distribution of assets in joint venture agreements and other similar
agreements relating solely to the assets subject to such agreement.
Notwithstanding the foregoing, (a) customary provisions restricting
subletting or assignment of any lease entered into in the ordinary course of
business, consistent with industry practice shall not be prohibited by this
Section 4.10 and (b) any asset subject to a Lien which is not prohibited to
exist with respect to such asset pursuant to the terms of this Indenture may be
subject to customary restrictions on the transfer or disposition thereof
pursuant to such Lien.
Section 1.37 Limitation on Lines of Business
Neither the Company, the Parent nor any Subsidiary of the Company or
the Parent shall directly or indirectly engage to any substantial extent in any
line or lines of business activity other than that which, in the reasonable good
faith judgment of the Company's Board of Directors, is a Related Business.
Section 1.38 Limitation on Transactions with Affiliates
The Company and the Parent shall not and shall not let any
Subsidiary of the Company or the Parent, on or after the Issue Date, enter into
or suffer to exist any contract, agreement, arrangement or transaction with any
Affiliate (an "Affiliate Transaction"), or any series of related Affiliate
Transactions, (other than Exempted Affiliate Transactions), (1) unless it is
determined that the terms of such Affiliate Transaction are fair and reasonable
to the Company, and no less favorable to the Company than could have been
obtained in an arm's length transaction with a non-Affiliate, and (2) if
involving consideration to either party in excess of $5,000,000, unless such
Affiliate Transaction(s) has been approved by a majority of the members of the
Company's Board of Directors that are disinterested in such transaction, if
there are any directors who are so disinterested, and (3) if involving
consideration to either party in excess of $10,000,000, or $7,500,000 if there
are no disinterested directors for such transaction, unless, in addition the
Company, prior to the consummation thereof, obtains a written favorable opinion
as to the fairness of such transaction to the Company and the Parent from a
financial point of view from an independent investment banking firm of national
reputation in the United States or, if pertaining to a matter for which such
investment banking firms do not customarily render such opinions, an appraisal
or valuation firm of national reputation in the United States. Within 5 days of
any Affiliate Transaction(s) involving consideration
81
to either party of $5,000,000 or more (other than Exempted Affiliate
Transactions), the Company shall deliver to the Trustee an Officers' Certificate
addressed to the Trustee certifying that such Affiliate Transaction (or
Transactions) complied with clauses (1), (2), and (3) of this Section 4.12, as
applicable.
Section 1.39 Limitation on Sale Of Assets And Subsidiary Stock
(1) The Company shall not and the Parent shall not, and neither the
Company nor Parent shall permit any Subsidiary of the Company or the Parent to,
in one or a series of related transactions, convey, sell, transfer, assign or
otherwise dispose of, directly or indirectly, any of their property, business or
assets, including by merger or consolidation (in the case of a Subsidiary of the
Company or the Parent), and including any sale or other transfer or issuance of
any Equity Interests of any Subsidiary of the Company or of the Parent, whether
by the Company, the Guarantor, or the Parent or through the issuance, sale or
transfer of Equity Interests by a Subsidiary of the Company or Parent and
including any sale and leaseback transaction (any of the foregoing, an "Asset
Sale"), unless:
(1) with respect to any Asset Sale or related series of Asset
Sales involving securities, property or assets with an aggregate
fair market value in excess of $ 1,000,000, at least 75% of the
total consideration for such Asset Sale or series of related Asset
Sales consists of cash or Cash Equivalents;
(2) the Parent determines in good faith that the Company, the
Parent or such Subsidiary, as applicable, receives, as applicable,
fair market value for such Asset Sale; and
(3) IF THE VALUE OF THE ASSETS BEING DISPOSED OF IN SUCH ASSET
SALE OR SERIES OF ASSET SALES WITH AN AGGREGATE FAIR MARKET VALUE
(AS DETERMINED IN GOOD FAITH BY THE BOARD OF DIRECTORS) IS AT LEAST
$10,000,000, THE BOARD OF DIRECTORS SHALL HAVE RECEIVED A WRITTEN
OPINION OF A NATIONALLY RECOGNIZED INVESTMENT BANKING FIRM (OR, IF
PERTAINING TO A MATTER FOR WHICH SUCH INVESTMENT BANKING FIRMS DO
NOT CUSTOMARILY RENDER SUCH OPINIONS, AN APPRAISAL OR VALUATION FIRM
OF NATIONAL REPUTATION IN THE UNITED STATES) TO THE EFFECT THAT SUCH
ASSET SALE OR SERIES OF ASSET SALES IS FAIR, FROM A FINANCIAL POINT
OF VIEW, TO THE PARENT OR SUCH SUBSIDIARY AND THE COMPANY SHALL HAVE
DELIVERED A COPY OF SUCH OPINION TO THE TRUSTEE PROMPTLY FOLLOWING
THE CONSUMMATION OF SUCH ASSET SALE OR SERIES OF ASSET SALES.
For purposes of clause (1) above, total consideration received means
the total consideration received for such Asset Sales minus the
amount of, (a) Senior Debt assumed by a transferee in an Asset Sale;
provided, that the Company and all of the Guarantors and all of the
Subsidiaries of the Company and the Parent are fully released from
obligations in connection therewith, and (b) property that within 30
days of such Asset Sale is converted into cash or Cash Equivalents;
provided, that
82
such cash and Cash Equivalents shall be treated as Net Cash Proceeds
attributable to the original Asset Sale for which such property was
received.
(2) Within 360 days following such Asset Sale, the Net Cash Proceeds
therefrom (the "Asset Sale Amount") are:
(1) invested in Related Business Assets and property (except
in connection with the acquisition of a Person that becomes a
Subsidiary of the Company or the Parent and which immediately
becomes a Guarantor in a Related Business) other than notes, bonds,
obligation and securities) or make Permitted Investments pursuant to
and in accordance with clauses (f) and (g) of the definition thereof
which in the good faith reasonable judgment of the Board of
Directors of the Company shall immediately constitute or be a part
of a Related Business of the Parent, the Company or such Subsidiary
(if it continues to be a Subsidiary) immediately following such
transaction, or
(2) used to retire Senior Debt and, to permanently reduce (in
the case of Senior Debt that is not such Purchase Money
Indebtedness) the amount of such Indebtedness outstanding on the
date the Merger is consummated or permitted pursuant to paragraph
(b) or (c), as applicable, of Section 4.7 hereof (including, in the
case of a revolver or similar arrangement that makes credit
available, permanently reducing the commitment by such amount), or
(3) applied to the optional redemption of the Notes in
accordance with the terms of this Indenture and the Company's other
Indebtedness ranking on a parity with the Notes and with similar
provisions requiring the Company to redeem such Indebtedness with
the proceeds from such Asset Sale, pro rata in proportion to the
respective principal amounts (or accreted values in the case of
Indebtedness issued with an original issue discount) of the Notes
and such other Indebtedness then outstanding,
except that, in the case of each of the provisions of clauses (1) and (2), only
proceeds from an Asset Sale of assets or capital stock of a Non-Guarantor
Foreign Subsidiary may be invested in or used to retire Indebtedness of a
Non-Guarantor Subsidiary. Pending the final application of any Net Cash
Proceeds, the Company may temporarily reduce revolving credit borrowings or
otherwise invest the Net Cash Proceeds in any manner that is not prohibited by
this Indenture.
(a) The accumulated Net Cash Proceeds from Asset Sales not
applied as set forth in clauses (1), (2) or (3) of Section 4.13(b) above shall
83
constitute Excess Proceeds. Within 30 days after the date that the amount of
Excess Proceeds exceeds $15,000,000, the Company shall apply the Excess Proceeds
(the "Asset Sale Offer Amount") to the repurchase of the Notes and such other
Indebtedness ranking on a parity with the Notes and with similar provisions
requiring the Company to make an offer to purchase such Indebtedness with the
proceeds from such Asset Sale pursuant to a cash offer (subject only to
conditions required by applicable law, if any) (pro rata in proportion to the
respective principal amounts (or accreted values in the case of Indebtedness
issued with an original issue discount) of the Notes and such other Indebtedness
then outstanding) (the "Asset Sale Offer"), at a purchase price of 100% of the
principal amount (or accreted value in the case of Indebtedness issued with an
original issue discount) (the "Asset Sale Offer Price"), together with accrued
and unpaid interest and Liquidated Damages, if any, to the date of payment. Each
Asset Sale Offer shall remain open for a minimum of 20 Business Days following
its commencement (the "Asset Sale Offer Period").
(b) Upon expiration of the Asset Sale Offer Period, the
Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued
and unpaid interest and Liquidated Damages, if any, to the purchase of all
Indebtedness properly tendered in accordance with the provisions hereof (on a
pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all
Indebtedness so tendered) at the Asset Sale Offer Price, (together with accrued
interest and Liquidated Damages, if any). To the extent that the aggregate
amount of Notes and such other pari passu Indebtedness tendered pursuant to an
Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use
any remaining Net Cash Proceeds in any manner not otherwise prohibited by this
Indenture and following the consummation of each Asset Sale Offer the Excess
Proceeds amount shall be reset to zero.
Notwithstanding, and without complying with, the provisions of this
Section 4.13:
(4) the Company, the Parent and the Subsidiaries of the
Company and the Parent may, in the ordinary course of business, (a)
convey, sell, transfer, assign or otherwise dispose of inventory and
other assets acquired and held for resale in the ordinary course of
business and (b) liquidate Cash Equivalents;
(5) the Company, the Parent and the Subsidiaries of the
Company and the Parent may convey, sell, transfer, assign or
otherwise dispose of all or substantially all of its assets pursuant
to and in accordance with Article V hereof;
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(6) the Company, the Parent and the Subsidiaries of the
Company and the Parent may convey, sell, transfer, assign or
otherwise dispose of assets to the Company or any Guarantor;
(7) the Company, the Parent, and the Subsidiaries of the
Company and the Parent may settle, release or surrender, tort or
other litigation claims in the ordinary course of business or grant
Liens (and permit foreclosure thereon) not prohibited by this
Indenture;
(8) Non-Guarantor Subsidiaries may convey, sell, transfer,
assign or otherwise dispose of assets to the Company, any of the
Guarantors, or any other Non-Guarantor Subsidiary;
(9) the Company, the Parent and the Subsidiaries of the
Company and the Parent may make Permitted Investments (pursuant to
and in accordance with clauses (f), (g), and (h) in the definition
thereof) and Restricted Investments under Section 4.9 hereof;
(10) the Company, the Parent and the Subsidiaries of the
Company and the Parent may incur Liens (and the disposition of
assets related to such Liens by the secured party pursuant to a
foreclosure) that are not prohibited by this Indenture; and
(11) Subsidiaries of the Company and the Parent may issue
Equity Interests of such Subsidiary upon conversion of, or in
exchange for, other outstanding securities of such Subsidiary the
issuance of which was not prohibited by this Indenture.
All Net Cash Proceeds from an Event of Loss (other than the proceeds
of any business interruption insurance) shall be reinvested or used as otherwise
provided above in clause (b)(1) or (2) of this Section 4.13.
To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section 4.13, the Company's
compliance or the compliance of any of the Company's subsidiaries with such laws
and regulations shall not in and of itself cause a breach of the Company's
obligations under this Section 4.13.
If the payment date in connection with an Asset Sale Offer hereunder
is on or after an interest payment Record Date and on or before the associated
Interest Payment Date, any accrued and unpaid interest (and Liquidated Damages,
if any), due on such Interest Payment Date shall be paid to the Person in whose
name a Note is registered at the close of business on such Record Date.
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Section 1.40 Repurchase of Notes At The Option Of The Holder upon a Change of
Control
In the event that a Change of Control has occurred, each Holder of
Notes shall have the right, at such Holder's option, pursuant to an offer
(subject only to conditions required by applicable law, if any) by the Company
(the "Change of Control Offer"), to require the Company to repurchase all or any
part of such Holder's Notes (provided, that the principal amount of such Notes
must be $1,000 or an integral multiple thereof) on a date (the "Change of
Control Purchase Date") that is no later than 45 Business Days after the
occurrence of such Change of Control, at a cash price equal to 101% of the
principal amount thereof (the "Change of Control Purchase Price"), together with
accrued and unpaid interest (and Liquidated Damages, if any), to the Change of
Control Purchase Date.
The Change of Control Offer shall be made within 20 Business Days
following a Change of Control and shall remain open for 20 Business Days
following its commencement or such other period as may be required by applicable
law (the "Change of Control Offer Period"). Upon expiration of the Change of
Control Offer Period, the Company shall promptly purchase all Notes properly
tendered in response to the Change of Control Offer.
Notwithstanding the foregoing, the Company shall not be required to
make a Change of Control Offer upon a Change of Control if a third party makes
the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in this Indenture applicable to a
Change of Control Offer made by the Company, including any requirements to repay
in full all Indebtedness under the Credit Agreement, any Senior Debt or Senior
Debt of any Guarantor or obtains the consents of such lenders to such Change of
Control Offer as set forth in the following paragraph of this Section 4.14, and
purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.
Prior to the commencement of a Change of Control Offer, but in any
event within 30 days following any Change of Control, the Company shall:
(1) (a) repay in full in cash and terminate all commitments
under Indebtedness under the Credit Agreement and all other Senior
Debt the terms of which require repayment upon a Change of Control
or (b) offer to repay in full and terminate all commitments under
all Indebtedness under the Credit Agreement and all such other
Senior Debt and repay the Indebtedness owed to each lender which has
accepted such offer in full, or
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(2) obtain the requisite consents under the Credit Agreement
and all such other Senior Debt to permit the repurchase of the Notes
as provided herein.
The Company's failure to comply with the preceding sentence
shall constitute an Event of Default described in clause (3) under
Section 6.1 hereof.
On or before the Change of Control Purchase Date, the Company
shall:
(3) accept for payment Notes or portions thereof properly
tendered pursuant to the Change of Control Offer,
(4) deposit with the Paying Agent cash sufficient to pay the
Change of Control Purchase Price (together with accrued and unpaid
interest (and Liquidated Damages, if any) to the Change of Control
Purchase Date) of all Notes so tendered, and
(5) deliver to the Trustee the Notes so accepted together with
an Officers' Certificate listing the Notes or portions thereof being
purchased by the Company.
The Paying Agent promptly shall pay the Holders of Notes so accepted
an amount equal to the Change of Control Purchase Price (together with accrued
and unpaid interest and Liquidated Damages, if any) and the Trustee promptly
shall authenticate and deliver to such Holders a new Note equal in principal
amount to any unpurchased portion of the Note surrendered. Any Notes not so
accepted shall be delivered promptly by the Company to the Holder thereof. The
Company publicly shall announce the results of the Change of Control Offer on or
as soon as practicable after the Change of Control Purchase Date.
To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this covenant, the Company's
compliance or compliance by any of the Guarantors with such laws and regulations
shall not in and of itself cause a breach of their obligations under such
covenant.
If the Change of Control Purchase Date hereunder is on or after an
interest payment Record Date and on or before the associated Interest Payment
Date, any accrued and unpaid interest (and Liquidated Damages, if any) due on
such Interest Payment Date shall be paid to the Person in whose name a Note is
registered at the close of business on such Record Date.
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Section 1.41 Repurchase of Notes at the Option of the Holder from Excess Cash
Flow
If the Parent has Excess Cash Flow for any fiscal year, then no
later than the 140th day following the end of each fiscal year, the Parent shall
apply an amount equal to 50% of the Excess Cash Flow for such fiscal year:
(1) first, to the extent the Parent elects (or is required by the
terms of any Indebtedness), to prepay, repay, redeem or purchase (and
permanently reduce the commitments thereunder) Senior Debt of the Company or the
Guarantors with such percentage of Excess Cash Flow; and (1) (2) second, to the
extent of the balance of such percentage of Excess Cash Flow after application
in accordance with clause (1) (the amount of such unapplied percentage, the
"Excess Cash Flow Amount"), to make an offer (the "Excess Cash Flow Offer") to
the holders of the Notes and such other Indebtedness ranking on a parity with
the Notes and with similar provisions requiring the Company to purchase such
Indebtedness from the Company's Excess Cash Flow to purchase, on a pro rata
basis in proportion to the respective principal amounts (or accreted values, in
the case of Indebtedness issued with original issue discount) of the Notes and
such other Indebtedness then outstanding, Notes at a purchase price in cash
equal to 100% of the principal amount (or accreted value in the case of
Indebtedness issued with original issue discount) of the Notes or such other
Indebtedness to be purchased (the "Excess Cash Flow Purchase Price"), together
with accrued and unpaid interest and Liquidated Damages, if any, thereon to the
date fixed for the purchase of the Notes pursuant to such Excess Cash Flow
Offer, in accordance with the terms of this Section 4.15; provided, however,
that in connection with any prepayment, repayment or purchase of Debt pursuant
to clause (1) above, the Company or such Guarantor shall permanently retire such
Debt and shall cause the related loan commitment (if any) to be permanently
reduced in an amount equal to the principal amount so prepaid, repaid or
purchased; and provided, further, that no Excess Cash Flow Offer shall be
required to be made if the Parent's Leverage Ratio is less than 2.50 to 1.0 on
the last day of such fiscal year.
The Excess Cash Flow Offer will be required to remain open for 20
Business Days following its commencement. Upon the expiration of that period,
the Parent promptly (and in any case, within three Business Days following such
expiration) will apply the Excess Cash Flow Offer Amount plus accrued and unpaid
interest and Liquidated Damages, if any, thereon to the purchase of all
Indebtedness validly tendered pursuant to an Excess Cash Flow Offer for the
Excess Cash Purchase Price. If the aggregate principal amount of Indebtedness
tendered pursuant to an Excess Cash Flow Offer exceeds the Excess Cash Flow
Offer Amount with respect thereto, the Parent will purchase such Indebtedness,
or portions thereof tendered, pro rata or by such other method as may be
required by law. If the aggregate amount of Notes and such other pari passu
Indebtedness tendered pursuant to any Excess Cash Flow Offer is less than the
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Excess Cash Flow Offer Amount, the Company and the Guarantors may use any
remaining Excess Cash Flow Amount for any purposes not prohibited by the
Indentures. The Parent will not be required to make an Excess Cash Flow Offer to
purchase Notes pursuant to this covenant if the available cumulative Excess Cash
Flow after the application of Excess Cash Flow in accordance with clause (1) of
the previous paragraph is less than $5,000,000; provided, that any such lesser
amount of Excess Cash Flow (if positive) will be added to the Excess Cash Flow
for each subsequent fiscal year until an Excess Cash Flow Offer is made.
To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this covenant, the Company's
compliance with such laws and regulations shall not in and of itself cause a
breach of the Company's obligations under such covenant.
Section 1.42 Limitation on Layering Indebtedness
The Company shall not, and Parent shall not and neither the Company
nor the Parent shall permit any Subsidiary of the Company or the Parent to,
directly or indirectly, incur, or suffer to exist any Indebtedness that is
contractually subordinate in right of payment to any of the Company's other
Indebtedness or any other Indebtedness of a Guarantor unless, by its terms, such
Indebtedness is contractually subordinate in right of payment to, or ranks pari
passu with, the Notes or the Guarantee, as applicable.
Section 1.43 Future Guarantors
The Parent may cause any Subsidiary of the Parent or the Company to
become a Guarantor by guaranteeing all principal, premium, if any, and interest
on the Notes on a senior subordinated basis in accordance with the terms of this
Indenture. The Parent and the Company shall cause all present and future
Subsidiaries of the Parent and the Company that guarantee any Indebtedness under
the Credit Agreement to jointly and severally, irrevocably and unconditionally,
guarantee all principal, premium, if any, and interest on the Notes on a senior
subordinated basis on or prior to the time such Subsidiaries guarantee any
Indebtedness under the Credit Agreement by executing a supplemental indenture,
substantially in the form attached as Exhibit E.
Notwithstanding anything in this Indenture to the contrary, if any
Subsidiary of the Company or the Parent (including Non-Guarantor Subsidiaries)
that is not a Guarantor guarantees any of the Company's Indebtedness or any
Indebtedness of any Guarantor, or the Company or the Parent or any Subsidiary of
the Company or the Parent, individually or collectively, pledges more than 66%
of
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the Voting Equity Interests of a Subsidiary that is not a Guarantor (including
Non-Guarantor Subsidiaries) of the Company or any Guarantor to a lender to
secure Indebtedness of the Company (other than Indebtedness under the Credit
Agreement) or any Indebtedness of any Guarantor (other than Indebtedness under
the Credit Agreement), then such Subsidiary must become a Guarantor, by
executing a supplemental indenture, substantially in the form attached as
Exhibit E.
Section 1.44 Limitation On Status As Investment Company
The Company, the Parent and each of the Subsidiaries of the Company
and the Parent shall be prohibited from being required to register as an
"investment company" (as that term is defined in the Investment Company Act of
1940, as amended (the "Investment Company Act")), or from otherwise becoming
subject to regulation under the Investment Company Act.
Section 1.45 Maintenance of Properties and Insurance
The Company and the Guarantors shall cause all material properties
used or useful to the conduct of their business and the business of each of
their Subsidiaries to be maintained and kept in good condition, repair and
working order (reasonable wear and tear excepted) and supplied with all
necessary equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in their reasonable
judgment may be necessary, so that the business carried on in connection
therewith may be properly conducted at all times; provided, however, that
nothing in this Section 4.19 shall prevent the Company or any Guarantor from
discontinuing any operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is (a) (i) in the
judgment of the Company, desirable in the conduct of the business of such entity
and (ii) would not have a material adverse effect on the ability of the Company
and the Guarantors to satisfy their obligations under the Notes, the Guarantees
and this Indenture, and, to the extent applicable, (b) as otherwise permitted
under Section 4.13 hereof.
The Company and the Guarantors shall provide, or cause to be
provided, for themselves and each of their Subsidiaries, insurance (including
appropriate self-insurance) against loss or damage of the kinds that, in the
reasonable, opinion of the Company is adequate and appropriate for the conduct
of the business of the Company, the Guarantors and such Subsidiaries.
Section 1.46 Corporate Existence
Subject to Section 4.14 and Article V hereof, each of the Company
and the Parent shall do or cause to be done all things necessary to preserve and
keep
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in full force and effect (i) its corporate existence, and the corporate,
partnership or other existence of each of its Subsidiaries, in accordance with
the respective organizational documents (as the same may be amended from time to
time) of the Company, the Parent or any such Subsidiary of the Company or the
Parent and (ii) the rights (charter and statutory), licenses and franchises of
the Company, the Parent and the Subsidiaries of the Company and the Parent;
provided, however, that the Company and the Parent shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of the Subsidiaries of the Company or the Parent, if the
Board of Directors of the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company, the Parent
and the Subsidiaries of the Company or the Parent, taken as a whole, and that
the loss thereof would not have a material adverse effect on the ability of the
Company and the Guarantors to satisfy their obligations under the Notes, the
Guarantees and this Indenture.
Section 1.47 Limitation on Ability of Company to Release Funds From Secured
Proceeds Account.
The Company agrees that (i) the terms of the Security Agreement
shall exclusively control the conditions under which and procedures pursuant to
which the Secured Proceeds can be released and (ii) it shall not attempt to
release funds from the secured proceeds account except in accordance with the
Security Agreement.
Section 1.48 Limitation on activities prior to consummation of the merger.
Prior to consummation of the Merger, except in connection with the
consummation of the Merger and the Related Financing Transactions, none of the
Company, the Parent or any of the Parent's Subsidiaries shall engage in any
business activities and the Parent, the Company, or any of the Parent's
Subsidiaries shall incur any Indebtedness (other than the Notes and the
Guarantees), grant any Liens (other than Liens securing the Notes and the
Guarantees) or make any Restricted Payments; provided, that, in the event of a
Triggering Event, the Company shall redeem the Notes in accordance with the
Mandatory Redemption provisions described in Section 3.8 hereof.
ARTICLE V
SUCCESSORS
Section 1.49 Merger, Consolidation or Sale of Assets of the Company
The Company shall not consolidate with or merge with or into another
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Person or, directly or indirectly, sell, lease, convey or transfer all or
substantially all of the Company's assets (such amounts to be computed on a
consolidated basis), whether in a single transaction or a series of related
transactions, to another Person or group of affiliated Persons of the Company or
adopt a plan of liquidation, unless:
(1) either (a) the Company is the continuing entity or (b) the
resulting, surviving or transferee entity is a corporation organized
under the laws of the United States, any state thereof or the
District of Columbia and expressly assumes by supplemental indenture
all of the Company's obligations in connection with the Notes and
this Indenture;
(2) no Default or Event of Default shall exist or shall occur
immediately after giving effect on a pro forma basis to such
transaction;
(3) unless such transaction is solely the merger of the
Company and one of the Company's previously existing Wholly-Owned
Subsidiaries which is also a Guarantor for the purpose of
reincorporation into another jurisdiction and which transaction is
not for the purpose of evading this provision and not in connection
with any other transaction, immediately after giving effect to such
transaction on a pro forma basis, the consolidated resulting,
surviving or transferee entity would immediately thereafter be
permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Debt Incurrence Ratio set forth in Section 4.7
herein; and
(4) each Guarantor shall have by amendment to its Guarantee if
necessary, confirmed in writing that its Guarantee shall apply to
the obligations of the Company or the surviving entity in accordance
with the Notes and this Indenture.
Section 1.50 Successor Corporation Substituted FOR THE COMPANY
Upon any consolidation or merger of the Company in accordance with
the foregoing, the successor corporation formed by such consolidation or into
which the Company is merged shall succeed to and (except in the case of a lease
or a sale of less than all assets of the Company) be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor corporation had been named therein as the
Company, and (except in the case of a lease or a sale of less than all of the
Company's assets) the Company shall be released from the obligations under the
Notes and this Indenture except with respect to any obligations that arise from,
or are related to, such transaction.
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For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise) of all or substantially all of the properties and assets of
one or more Subsidiaries, the Company's interest in which constitutes all or
substantially all of the Company's properties and assets, shall be deemed to be
the transfer of all or substantially all of the Company's properties and assets.
Section 1.51 Merger, Consolidation or Sale of Assets of Parent
The Parent shall not consolidate with or merge with or into another
Person, other than the Company or, directly or indirectly, sell, lease, convey
or transfer all or substantially all of the Parent's assets (such amounts to be
computed on a consolidated basis), whether in a single transaction or a series
of related transactions, to another Person (other than the Company) or group of
affiliated Persons or adopt a plan of liquidation, unless:
(1) either (a) the Parent is the continuing entity or (b) the
resulting, surviving or transferee entity is a corporation organized
under the laws of the United States, any state thereof or the
District of Columbia or any member country of the European Union and
expressly assumes by supplemental indenture all of the Parent's
obligations in connection with the Notes and this Indenture;
(2) no Default or Event of Default shall exist or shall occur
immediately after giving effect on a pro forma basis to such
transaction;
(3) unless such transaction is solely the merger of the Parent
and one of the Parent's previously existing Wholly-Owned
Subsidiaries which is also a Guarantor for the purpose of
reincorporation into another jurisdiction and which transaction is
not for the purpose of evading this provision and not in connection
with any other transaction, immediately after giving effect to such
transaction on a pro forma basis, the consolidated resulting,
surviving or transferee entity would immediately thereafter be
permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Debt Incurrence Ratio set forth in Section 4.7; and
(4) each Guarantor shall have by amendment to its Guarantee,
if necessary, confirmed in writing that its Guarantee shall apply to
the obligations of the Company or the surviving entity in accordance
with the Notes and this Indenture.
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Section 1.52 Successor Corporation Substituted for the Parent
Upon any consolidation or merger in accordance with Section 5.3, the
successor corporation formed by such consolidation or into which the Parent is
merged shall succeed to and (except in the case of a lease or a sale of less
than all of the Parent's assets) be substituted for, and may exercise every
right and power of, the Parent under this Indenture with the same effect as if
such successor corporation had been named therein as the Parent, and (except in
the case of a lease or a sale of less than all of the Parent's assets) the
Parent shall be released from the obligations under the Notes and this Indenture
except with respect to any obligations that arise from, or are related to, such
transaction.
For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise) of all or substantially all of the properties and assets of
one or more Subsidiaries, the Parent's interest in which constitutes all or
substantially all of the Parent's properties and assets, shall be deemed to be
the transfer of all or substantially all of the Parent's properties and assets.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 1.53 Events of Default
An "Event of Default," wherever used herein, means any one of the
following events:
(1) the Company's failure to pay any installment of interest
(or Liquidated Damages, if any) on the Notes as and when the same
becomes due and payable and the continuance of any such failure for
30 days,
(2) the Company's failure to pay all or any part of the
principal, or premium, if any, on the Notes when and as the same
becomes due and payable at maturity, redemption, by acceleration or
otherwise, including, without limitation, payment of the Change of
Control Purchase Price, the Asset Sale Offer Price or the Excess
Cash Flow Purchase Price, on Notes validly tendered and not properly
withdrawn pursuant to a Change of Control Offer, Asset Sale Offer or
Excess Cash Flow Offer, as applicable,
(3) the Company's failure or the failure by the Parent or any
Subsidiary of the Company or the Parent to observe or perform any
other covenant or agreement contained in the Notes or this
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Indenture and, except for the provisions under Sections 4.14, 4.15,
5.1 and 5.3 hereof, the continuance of such failure for a period of
30 days after written notice is given to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Notes outstanding,
(4) the Company's failure to report the occurrence of a
Default under any covenant contained in the Notes or this Indenture
and the continuance of such failure for a period of 30 days after
management of the Company or the Parent, exercising reasonable
diligence, becomes aware thereof,
(5) a court having jurisdiction in the premises enters a
decree or order for (a) relief in respect of the Company, the Parent
or any Significant Subsidiary of the Company or the Parent in an
involuntary case under any applicable Bankruptcy Law now or
hereafter in effect, (b) appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of
the Company or any Significant Subsidiary or for all or
substantially all of the property and assets of the Company or any
Significant Subsidiary or (c) the winding up or liquidation of the
affairs of the Company or any Significant Subsidiary and, in each
case, such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days;
(6) the Company or the Parent or any Significant Subsidiary of
the Company or the Parent (a) commences a voluntary case under any
applicable Bankruptcy Law now or hereafter in effect, or consents to
the entry of an order for relief in an involuntary case under any
such law, (b) consents to the appointment of or taking possession by
a receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official of the Company or the Parent or any Significant
Subsidiary of the Company or the Parent or for all or substantially
all of the property and assets of the Company or any Significant
Subsidiary or (c) effects any general assignment for the benefit of
creditors;
(7) a default in the Indebtedness of the Company or the Parent
or the Indebtedness of any Subsidiary of the Company or the Parent
with an aggregate amount outstanding in excess of $5,000,000 (a)
resulting from the failure to pay principal at maturity or (b) as a
result of which the maturity of such Indebtedness has been
accelerated prior to its stated maturity,
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(8) final unsatisfied judgments not covered by insurance
aggregating in excess of $15,000,000, at any one time rendered
against the Company, the Parent or any Subsidiary of the Company or
the Parent and not stayed, bonded or discharged within 60 days,
(9) the Guarantee of Parent ceases to be in full force and
effect or becomes unenforceable or invalid or is declared null and
void (other than in accordance with the terms of the Guarantee and
this Indenture) or Parent denies or disaffirms its Obligations under
its Guarantee; and
(10) any Guarantee of a Guarantor that is a Significant
Subsidiary ceases to be in full force and effect or becomes
unenforceable or invalid or is declared null and void (other than in
accordance with the terms of the Guarantee and this Indenture) or
any Guarantor (other than Parent) denies or disaffirms its
Obligations under its Guarantee.
Section 1.54 Acceleration
(1) If an Event of Default occurs and is continuing (other than an
Event of Default specified in clauses (5) and (6) of Section 6.1 hereof relating
to the Company, the Parent or any of the Significant Subsidiaries of the Company
or the Parent,) then in every such case, unless the principal of all of the
Notes shall have already become due and payable, either the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then
outstanding, by notice in writing to the Company (and to the Trustee if given by
Holders) (an "Acceleration Notice"), may declare all principal, determined as
set forth below, and accrued interest (and Liquidated Damages, if any) thereon
to be due and payable immediately; provided, however, that if any Senior Debt is
outstanding pursuant to the Credit Agreement, upon a declaration of such
acceleration, such principal and interest shall be due and payable upon the
earlier of (x) the fifth Business Day after sending the Company and the
representative such written notice, unless such Event of Default is cured or
waived prior to such date and (y) the date of acceleration of any Senior Debt
under the Credit Agreement. In the event a declaration of acceleration resulting
from an Event of Default described in clause (7) under Section 6.1 hereof with
respect to any Senior Debt has occurred and is continuing, such declaration of
acceleration shall be automatically annulled if such default is cured or waived
or the holders of the Indebtedness which is the subject of such default have
rescinded their declaration of acceleration in respect of such Indebtedness
within 30 days thereof and the Trustee has received written notice of such cure,
waiver or rescission and no other Event of Default described in clause (7) under
Section 6.1 hereof has occurred that has not been cured or waived within 30 days
of the declaration of such acceleration in
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respect of such Indebtedness. If an Event of Default specified in clause (5) or
(6) under Section 6.1 hereof, relating to the Company, the Parent or any of the
Company's Significant Subsidiaries occurs, all principal and accrued interest
(and Liquidated Damages, if any) thereon shall be immediately due and payable on
all outstanding Notes without any declaration or other act on the part of the
Trustee or the Holders. The Holders of a majority in aggregate principal amount
of Notes generally are authorized to rescind such acceleration if all existing
Events of Default, other than the non-payment of the principal of, premium, if
any, and interest on the Notes which have become due solely by such acceleration
have been cured or waived.
(2) Prior to the declaration of acceleration of the maturity of the
Notes, the Holders of a majority in aggregate principal amount of the Notes at
the time outstanding may waive on behalf of all the Holders any Default, except
a Default in the payment of principal or of interest on any Note not yet cured
or a Default with respect to any covenant or provision which cannot be modified
or amended without the consent of the Holder of each outstanding Note affected.
Subject to the provisions of this Indenture relating to the duties of the
Trustee, the Trustee shall be under no obligation to exercise any of its rights
or powers under this Indenture at the request, order or direction of any of the
Holders, unless such Holders have offered to the Trustee security or indemnity
satisfactory to it. Subject to all provisions of this Indenture and applicable
law, the Holders of a majority in aggregate principal amount of the Notes at the
time outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee.
(3) At any time after such a declaration of acceleration being made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter provided in this Article VI, the Holders of not
less than a majority in aggregate principal amount of then outstanding Notes, by
written notice to the Company and the Trustee, may rescind, on behalf of all
Holders, any such declaration of acceleration and its consequences if:
(1) the Company has paid or deposited with the Trustee cash
sufficient to pay: (a) all overdue interest (and Liquidated Damages,
if any) on all Notes; (b) the principal of (and premium, if any,
applicable to) any Notes which would become due other than by reason
of such declaration of acceleration, and to the extent such interest
is lawful, interest thereon at the rate borne by the Notes; (c) to
the extent that payment of such interest is lawful, interest upon
overdue interest at the rate borne by the Notes; and (d) all sums
paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses,
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disbursements and advances of the Trustee and its agents and
counsel, and all other amounts due the Trustee under Section 7.7
hereof; and
(2) all Events of Default, other than the non-payment of the
principal of, premium, if any, and interest (and Liquidated Damages,
if any) on the Notes which have become due solely by such
declaration of acceleration, have been cured or waived as provided
in Section 6.4 hereof.
(4) Notwithstanding clause (c)(2) of this Section 6.2, no
waiver shall be effective against any Holder for any Event of
Default or event which with notice or lapse of time or both would be
an Event of Default with respect to any covenant or provision which
cannot be modified or amended without the consent of the Holder of
each outstanding Note affected thereby, unless all such affected
Holders agree, in writing, to waive such Event of Default or other
event. No such waiver shall cure or waive any subsequent default or
impair any right consequent thereon.
Section 1.55 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, Liquidated Damages, if any, and interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 1.56 Waiver of Past Defaults
Subject to Section 6.7 hereof and notwithstanding anything contained
in Section 6.2(b), the Holders of a majority in principal amount of the
outstanding Notes by written notice to the Company and to the Trustee, may, on
behalf of all Holders, waive any existing or past Default or Event of Default
hereunder and its consequences under this Indenture, except, subject to Section
6.2(c), a default:
(1) in the payment of principal of, premium, if any,
Liquidated Dam-ages, if any, or interest on any Note not yet cured
as
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specified in clauses (1) and (2) of Section 6.2(c) hereof;
(2) in respect of a covenant or provision hereof which, under
Article IX, cannot be modified or amended without the consent of the
Holder of each outstanding Note affected, unless all such affected
Holders agree, in writing, to waive such default; or
(3) the rescission of which would conflict with any judgment
order, or decree of a court of competent jurisdiction.
Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right arising therefrom.
Section 1.57 Control by Majority
Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that the Trustee determines
in good faith may be unduly prejudicial to the rights of other Holders of Notes
not joining in the giving of such direction or that may involve the Trustee in
personal liability and the Trustee may take any other action it deems proper
that is not inconsistent with any such direction received from Holders of the
Notes.
Section 1.58 Limitation on Suits
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(1) the Holder of a Note gives to the Trustee written notice
of a continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal amount
of the then outstanding Notes make a written request to the Trustee
to pursue the remedy;
(3) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the
Trustee against any costs, liability or expense;
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(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested,
the provision of indemnity; and
(5) during such 60-day period the Holders of a majority in
aggregate principal amount of the then outstanding Notes do not give
the Trustee a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of another
Holder of a Note or to obtain a preference or priority over another Holder of a
Note.
Section 1.59 Rights of Holders of Notes to Receive Payment
Notwithstanding any other provision of this Indenture, except as
permitted by Section 9.2 hereof, the right of any Holder of a Note to receive
payment of the principal of, premium and interest (and Liquidated Damages, if
any) on the Notes, on or after the respective due dates expressed in the Notes
(including in connection with an offer to purchase) or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
Section 1.60 Collection Suit by Trustee
If an Event of Default specified in Section 6.1 hereof occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount of
principal of, premium (and Liquidated Damages, if any) and interest remaining
unpaid on the Notes and, to the extent lawful, 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 1.61 Trustee May File Proofs of Claim
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the
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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 7.7 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.7 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however that the Trustee may, on behalf of the Holders, vote for the election of
a trustee in bankruptcy or similar official and may be a member of the
creditor's committee.
Section 1.62 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 7.7 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection (including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel);
Second: to Holders of Notes for amounts due and unpaid on the Notes
for principal and Liquidated Damages, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Notes for principal, premium and Liquidated Damages, if any, and interest,
respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment
to Holders of Notes pursuant to this Section 6.10.
Section 1.63 Undertaking for Costs
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In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of
a Note pursuant to Section 6.7 hereof, or a suit by Holders of more than 10% in
aggregate principal amount of the then outstanding Notes.
ARTICLE VII
TRUSTEE
Section 1.64 Duties of Trustee
(1) If an Event of Default of which the Trustee has knowledge has
occurred and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and skill
in its exercise, as a prudent man would exercise or use under the circumstances
in the conduct of its own affairs.
(2) Except during the continuance of an Event of Default of which
the Trustee has knowledge:
(1) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they conform
to the requirements of this Indenture.
(3) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
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(1) this paragraph (c) does not limit the effect of paragraph
(b) of this Section 7.1;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by an Officer of the Trustee, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5 hereof.
(4) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to Sections 7.1
and 7.2 hereof.
(5) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be under
no obligation to exercise any of its rights and powers under this Indenture at
the request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(6) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 1.65 Rights of Trustee
(1) In connection with the Trustee's rights and duties under this
Indenture, the Trustee may conclusively rely upon any document believed by it to
be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting under this
Indenture, it may require an Officers' Certificate or an Opinion of Counsel or
both. The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such Officers' Certificate or Opinion of Counsel.
The Trustee may consult with counsel of its selection and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection from liability in respect of any action taken, suffered or omitted by
it hereunder in good faith and in reliance thereon.
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(3) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(4) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(5) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(6) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders shall have offered to the Trustee
security or indemnity satisfactory to it against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.
(7) Except with respect to Section 4.1 hereof, the Trustee shall
have no duty to inquire as to the performance of the Company's covenants in
Article IV hereof. In addition, the Trustee shall not be deemed to have
knowledge of any Default or Event of Default except (i) any Event of Default
occurring pursuant to Sections 6.1(1), 6.1(2) and 4.1 hereof or (ii) any Default
or Event of Default of which the Trustee shall have received written
notification in the manner set forth in this Indenture or a Responsible Officer
of the Trustee shall have obtained actual knowledge. Delivery of reports,
information and documents to the Trustee under Section 4.3 hereof is for
informational purposes only and the Trustee's receipt of the foregoing shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's or any
Guarantor's, as applicable, compliance with any of their covenants thereunder
(as to which the Trustee is entitled to rely exclusively on an Officer's
Certificate).
(8) 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 may, in its discretion, make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney at the sole cost of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation.
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(9) Any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company request or Company order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
resolution.
(10) 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.
(11) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
Section 1.66 Individual Rights of Trustee
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest (as defined in the TIA) it must eliminate such conflict within 90 days,
apply to the SEC for permission to continue as trustee or resign. Any Agent may
do the same with like rights and duties. The Trustee is also subject to Sections
7.10 and 7.11 hereof.
Section 1.67 Trustee's Disclaimer
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 1.68 Notice of Defaults
If a Default or Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to Holders of Notes a notice in
the
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manner and to the extent provided by Section 313(c) of the TIA of the Default or
Event of Default within 90 days after it occurs. Except in the case of a Default
or Event of Default in payment of principal of, premium, if any, Liquidated
Damages, if any, or interest on any Note, the Trustee may withhold the notice if
and so long as a committee of its Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Notes.
Section 1.69 Reports by Trustee to Holders of the Notes
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA Section 313(a) (but if no event described
in TIA Section 313(a) has occurred within the 12 months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply with TIA
Section 313(b)(2). The Trustee shall also transmit by mail all reports as
required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA Section 313(d).
The Company shall promptly notify the Trustee when the Notes are listed on any
stock exchange or delisted therefrom.
Section 1.70 Compensation and Indemnity
The Company shall pay to the Trustee from time to time such
compensation for its acceptance of this Indenture and services hereunder as the
Company and the Trustee shall from time to time agree in writing. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee promptly upon request for
all reasonable disbursements, advances and expenses incurred or made by it in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
The Company shall indemnify the Trustee, and any predecessor Trustee
and their agents, against any and all losses, liabilities or expenses (including
reasonable attorneys' fees) incurred by them arising out of or in connection
with the acceptance or administration of its duties under this Indenture,
including the costs and expenses of enforcing this Indenture against the Company
(including this Section 7.7) and defending itself against any claim (whether
asserted by the Company or any Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such
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loss, liability or expense may be attributable to its negligence, bad faith or
willful misconduct. The Trustee shall notify the Company promptly of any claim
for which it may seek indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder. The Company shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel and the Company shall pay the reasonable fees and expenses
of such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.7 shall survive
the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section 7.7, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Sections 6.1(5) or 6.1(6) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
Section 1.71 Replacement of Trustee
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.8.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of Notes of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
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Bankruptcy Law;
(3) a Custodian or public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee (at the expense of
the Company), the Company, or the Holders of Notes of at least 10% in aggregate
principal amount of the then outstanding Notes may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Note who
has been a Holder of a Note for at least six months, fails to comply with
Section 7.10 hereof, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee; provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.7 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.8, the Company's obligations under Section 7.7 hereof shall
continue for the benefit of the retiring Trustee.
Section 1.72 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 1.73 Eligibility; Disqualification
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There shall at all times be a Trustee hereunder that is a
corporation or trust company (or a member of a bank holding company) organized
and doing business under the laws of the United States of America or of any
state thereof that is authorized under such laws to exercise corporate trustee
power, that is subject to supervision or examination by federal or state
authorities and that has (or the bank holding company of which it is a member
has) a combined capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
Section 1.74 Preferential Collection of Claims Against Company
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 1.75 Option to Effect Legal Defeasance or Covenant Defeasance
The Company may, at the option of its Board of Directors evidenced
by a resolution set forth in an Officers' Certificate, at any time, elect to
have either Section 8.2 or 8.3 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article VIII.
Section 1.76 Legal Defeasance and Discharge
Upon the Company's exercise under Section 8.1 hereof of the option
applicable to this Section 8.2, each of the Company and the Guarantors, as
applicable, shall, subject to the satisfaction of the applicable conditions set
forth in Section 8.4 hereof, be deemed to have been discharged from its
obligations with respect to all outstanding Notes and Guarantees, as applicable,
on the date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged all amounts owed under the outstanding Notes,
and the Guarantors shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Guarantees, which shall thereafter
be deemed to be "outstanding" only for the purposes of Section 8.5 hereof and
the other Sections of this Indenture referred to in (a) and (b) below, and to
have satisfied all its other obligations under such Notes, such Guarantees and
this Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the
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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 8.4 hereof, and
as more fully set forth in Section 8.4, payments in respect of the principal of,
premium, if any, and interest (and Liquidated Damages, if any) on such Notes
when such payments are due, (b) the Company's obligations with respect to such
Notes under Sections 2.6, 2.7 and 2.10 and Section 4.2 hereof, (c) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and the Company's
obligations in connection therewith and (d) this Article VIII. Subject to
compliance with this Article VIII, the Company may exercise its option under
this Section 8.2 notwithstanding the prior exercise of its option under Section
8.3 hereof.
Section 1.77 Covenant Defeasance
Upon the Company's exercise under Section 8.1 hereof of the option
applicable to this Section 8.3, subject to the satisfaction of the applicable
conditions set forth in Section 8.4 hereof, the Company and the Guarantors shall
be released from their respective obligations under Sections 4.3, 4.4, 4.5, 4.7,
4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.19, 4.21 and 4.22
hereof and Article V hereof, and the Guarantors shall be released from their
obligations under Article X hereof, in each case on and after the date the
conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"),
and the Notes and the Guarantees shall thereafter be deemed not "outstanding"
for the purposes of any direction, waiver, consent or declaration or act of
Holders (and the consequences of any thereof) in connection with such covenants,
but shall continue to be deemed "outstanding" for all other purposes hereunder
(it being understood that such Notes shall not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding Notes, the Company and the Guarantors may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 6.1 hereof, but, except as specified above, the
remainder of this Indenture and such Notes shall be unaffected thereby. In
addition, upon the Company's exercise under Section 8.1 hereof of the option
applicable to this Section 8.3, subject to the satisfaction of the applicable
conditions set forth in Section 8.4 hereof, (x) Sections 6.1(3), (4), (7) and
(8) hereof shall not constitute Events of Default and (y) Sections 6.1(5) and
6.1(6) hereof shall not constitute an Event of Default to the extent they occur
after the 91st day following the occurrence of the Company's exercise of
Covenant Defeasance; provided, however that for all other purposes as set forth
herein, such Covenant Defeasance provisions shall be effective.
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Section 1.78 Conditions to Legal or Covenant Defeasance
The following shall be the conditions to the application of either
Section 8.2 or 8.3 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of Holders of the Notes, cash in United States legal
tender, U.S. Government Obligations, or a combination thereof, in amounts
that shall be sufficient, in the opinion of a nationally recognized firm
of independent public accountants, to pay the principal of, premium, if
any, and Liquidated Damages, if any, and interest on the outstanding Notes
on the stated date for payment thereof or on the applicable redemption
date, as the case may be, and the Trustee must have, for the benefit of
Holders of the Notes, a valid, perfected exclusive security interest in
such trust;
(b) in the case of an election under Section 8.2 hereof, the Company
must deliver to the Trustee an Opinion of Counsel reasonably acceptable to
the Trustee from United States legal counsel confirming that (A) the
Company has received from, or there has been published by the Internal
Revenue Service a ruling, or (B) since the date of this Indenture, there
has been a change in the applicable federal income tax law, in either case
to the effect that, the Holders of the outstanding Notes shall not
recognize income, gain or loss for federal income tax purposes as a result
of such Legal Defeasance and shall be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.3 hereof, the Company
must deliver to the Trustee an Opinion of Counsel reasonably acceptable to
the Trustee from United States legal counsel confirming that Holders of
the outstanding Notes shall not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and shall be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Covenant Defeasance
had not occurred;
(d) in the case of an election under Section 8.2 or 8.3 hereof, (x)
no Default or Event of Default shall have occurred and be continuing on
the date of the deposit, and (y) in the case of Legal Defeasance, no Event
of Default specified in clause (5) or (6) of Section 6.1 hereof shall have
occurred
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at any time from the date of the deposit to the 91st calendar day
thereafter;
(e) the Defeasance may not result in a breach or violation of, or
constitute a default under this Indenture or any other material agreement
or instrument to which the Company or any of the Guarantors are a party or
by which the Company or any of the Guarantors are bound;
(f) the Company must deliver to the Trustee an Officers' Certificate
stating that the deposit was not made by the Company with the intent to
hinder, delay or defraud any other of the Company's creditors; and
(g) the Company must deliver to the Trustee an Officers' Certificate
confirming the satisfaction of the conditions in clauses (a) through (f)
above, and an Opinion of Counsel, confirming the satisfaction of the
conditions in clauses (a) (with respect to the validity and perfection of
the security interest), (b), (c) and (e) above.
Legal Defeasance and Covenant Defeasance shall be deemed to occur on
the earlier of (i) the 91st day after the deposit and (ii) the date all of the
applicable conditions set forth in this Section 8.4 are satisfied.
Section 1.79 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions
Subject to Section 8.6 hereof, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.5, the
"Trustee") pursuant to Section 8.4 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, and interest (and
Liquidated Damages, if any), but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 8.4 hereof or the principal and
interest received in respect thereof, other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article VIII to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the
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Company any money or U.S. Government Obligations held by it as provided in
Section 8.4 hereof which, in the opinion of a firm of independent public
accountants nationally recognized in the United States expressed in a written
certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.4(a) hereof), are in excess of the amount thereof that
would then be required to be deposited to effect an equivalent Legal Defeasance
or Covenant Defeasance.
Section 1.80 Repayment to Company
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of, premium, if
any, Liquidated Damages, if any, or interest on any Note and remaining unclaimed
for two years after such principal, and premium, if any, Liquidated Damages, if
any, or interest has become due and payable shall be paid to the Company on its
written request or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Note shall thereafter, as a creditor, look only to
the Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining shall be repaid to the Company.
Section 1.81 Reinstatement
If the Trustee or Paying Agent is unable to apply any United States
legal tender or U.S. Government Obligations in accordance with Section 8.2 or
8.3 hereof, as the case may be, by reason of any order directing the repayment
of the deposited money to the Company or otherwise making the deposit
unavailable to make payments under the Notes when due, or if any court enters an
order avoiding the deposit of money with the Trustee or Paying Agent or
otherwise requires the payment of the money so deposited to the Company or to a
fund for the benefit of its creditors, then (so long as the insufficiency exists
or the order remains in effect) the Company's and the Guarantors' obligations
under this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.2 or 8.3 hereof until such time as
the Trustee or Paying Agent is permitted to apply all such money in accordance
with Section 8.2 or 8.3 hereof, as the case may be; provided, however, that, if
the Company makes any payment of principal of, premium, if any, Liquidated
Damages, if any, or interest on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the
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Holders of such Notes to receive such payment from the money held by the Trustee
or Paying Agent.
ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER
Section 1.82 Without Consent of Holders of Notes
Notwithstanding Section 9.2 hereof, the Company, the Guarantors and
the Trustee may amend or supplement this Indenture, the Notes or any Guarantee,
without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(c) to provide for the assumption of the Company's obligations to
the Holders of the Notes in the case of a merger or consolidation pursuant
to Article V hereof;
(d) to provide for additional Guarantors as set forth in Section
4.17 hereof or for the release or assumption of a Guarantee in compliance
with this Indenture;
(e) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the
rights hereunder of any Holder of the Note;
(f) to comply with the provisions of the Depositary, Euroclear or
Clearstream or the Trustee with respect to the provisions of this
Indenture or the Notes relating to transfers and exchanges of Notes or
beneficial interests therein;
(g) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA; or
(h) to provide for the issuance of additional Notes in accordance
with the limitations set forth in this Indenture as of the date hereof.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
9.6
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hereof, the Trustee shall join with the Company in the execution of any amended
or supplemental Indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee shall not be obligated to enter into such
amended or supplemental Indenture that adversely affects its own rights, duties
or immunities under this Indenture or otherwise.
Section 1.83 With Consent of Holders of Notes
Except as expressly stated otherwise in this Section 9.2, and
subject to Section 6.7 hereof, the Company, the Guarantors and the Trustee may
amend or supplement this Indenture, the Notes and the Guarantees, with the
consent of the Holders of a majority in aggregate principal amount of the Notes
then outstanding (including, without limitation, consents obtained in connection
with a purchase of, or tender offer or exchange offer for, the Notes), and,
subject to Sections 6.4 and 6.7 hereof, any existing Default or Event of Default
(other than a Default or Event of Default in the payment of the principal of,
premium, if any, or interest on the Notes, except a payment default resulting
from an acceleration that has been rescinded) or compliance with any provision
of this Indenture or the Notes may be waived with the consent of the Holders of
a majority in aggregate principal amount of the then outstanding Notes
(including consents obtained in connection with a purchase of, or tender offer
or exchange offer for, the Notes).
Subject to Sections 6.4 and 6.7 hereof, the Holders of a majority in
aggregate principal amount of the Notes then outstanding may waive compliance in
a particular instance by the Company or any Subsidiary with any provision of
this Indenture or the Notes.
However, without the consent of each Holder affected (it being
understood that, except as expressly stated otherwise in paragraphs (a) through
(c) below, Section 4.13 and 4.14 hereof may be amended, waived or modified in
accordance with the first paragraph of this Section 9.2) an amendment or waiver
may not (with respect to any Notes held by a non-consenting Holder):
(a) change the Stated Maturity on any Note, or reduce the
principal amount thereof or the rate (or extend the time for
payment) of interest thereon or any premium payable upon the
redemption thereof at the Company's option, or change the city of
payment where, or the coin or currency in which, any Note or any
premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption at the
Company's option, on or after the Redemption Date), or after an
Asset Sale, Change of Control
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or Excess Cash Flow Offer has occurred reduce the Asset Sale Offer
Prince, Change of Control Purchase Price or the Excess Cash Flow
Purchase Price with respect to the corresponding Asset Sale, Change
of Control or Excess Cash Flow Offer or alter the provisions
(including the defined terms used therein) regarding the Company's
right to redeem the Notes at the Company's option in a manner
adverse to the Holders,
(b) reduce the percentage in principal amount of the
outstanding Notes, the consent of whose Holders is required for any
such amendment, supplemental indenture or waiver provided for in
this Indenture,
(c) modify any of the waiver provisions, except to increase
any required percentage or to provide that certain other provisions
of this Indenture cannot be modified or waived without the consent
of the Holder of each outstanding Note affected thereby, or
(d) release the Guarantee of Parent.
In connection with any amendment, supplement or waiver under this
Article IX, the Company may, but shall not be obligated to, offer to any Holder
who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 9.6 hereof, the Trustee shall
join with the Company in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture adversely affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but 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 9.2 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 9.2
becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the
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Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amended or supplemental Indenture
or waiver.
Section 1.84 Compliance with Trust Indenture Act
Every amendment or supplement to this Indenture or the Notes shall
be set forth in an amended or supplemental Indenture that complies with the TIA
as then in effect.
Section 1.85 Revocation and Effect of Consents
Until an amendment, supplement or waiver becomes effective (as
determined by the Company and which may be prior to any such amendment,
supplement or waiver becoming operative), a consent to it by a Holder of a Note
is a continuing consent by the Holder of a Note and every subsequent Holder of a
Note or portion of a Note that evidences the same Indebtedness as the consenting
Holder's Note, even if notation of the consent is not made on any Note. However,
any such Holder of a Note or subsequent Holder of a Note may revoke the consent
as to its Note if the Trustee receives written notice of revocation before the
date the waiver, supplement or amendment becomes effective (as determined by the
Company), which may be prior to any such amendment, supplement or waiver
becoming operative.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be the date so fixed by the
Company notwithstanding the provisions of the TIA. If a record date is fixed,
then notwithstanding the last sentence of the immediately preceding paragraph,
those Persons who were Holders at such record date, and only those Persons (or
their duly designated proxies), shall be entitled to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder unless it makes a change described in any of clauses (a)
through (d) of Section 9.2 hereof, in which case, the amendment, supplement or
waiver shall bind only each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note; provided, that any such waiver shall not impair or
affect the right of any Holder to receive payment of principal and premium of
and interest (and Liquidated Damages, if any) on a Note, on or after the
respective dates set for such amounts to become due and payable expressed in
such Note, or to bring suit for the enforcement of any such payment on or after
such respective dates.
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Section 1.86 Notation on or Exchange of Notes
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall authenticate new Notes
that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall
not affect the validity and effect of such amendment, supplement or waiver.
Section 1.87 Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article IX if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amended or supplemental Indenture until the Board of
Directors approves it. In executing any amended or supplemental Indenture, the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive and (subject to Section 7.1 hereof) 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 Indenture.
ARTICLE X
GUARANTEES
Section 1.88 Guarantees
By its execution hereof, each of the Guarantors acknowledges and
agrees that it receives substantial benefits from the Company and that such
party is providing its Guarantee for good and valuable consideration, including,
without limitation, such substantial benefits and services. Accordingly, subject
to the provisions of this Article X, each Guarantor, jointly and severally,
hereby unconditionally guarantees on an unsecured senior subordinated basis to
each Holder of a Note authenticated and delivered by the Trustee and its
successors and assigns that: (i) the principal of, premium, if any, and interest
(and Liquidated Damages, if any) on the Notes shall be duly and punctually paid
in full when due, whether at maturity, by acceleration, call for redemption,
upon a Change of Control Offer, upon an Asset Sale Offer or otherwise, and
interest on overdue principal, premium, if any, Liquidated Damages, if any, and
(to the extent permitted by law) interest on any interest, if any, on the Notes
and all other payment Obligations of the Company to the Holders or the Trustee
hereunder or under the Notes (including fees, expenses or other) shall be
promptly paid in full, all in accordance with the terms hereof; and (ii) in case
of any extension of time of payment or renewal of any Notes or any of such
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other Obligations, the same shall be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration, call for redemption, upon a Change of Control, upon
an Asset Sale Offer or otherwise, subject, however, in the case of clauses (i)
and (ii) above, to the limitations set forth in Section 10.5 hereof
(collectively, the "Guarantee Obligations").
Subject to the provisions of this Article X, each Guarantor hereby
agrees that its Guarantee hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder
of the Notes with respect to any thereof, the entry of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a Guarantor.
Each Guarantor hereby waives and relinquishes: (a) any right to require the
Trustee, the Holders or the Company (each, a "Benefitted Party") to proceed
against the Company, the Subsidiaries or any other Person or to proceed against
or exhaust any security held by a Benefitted Party at any time or to pursue any
other remedy in any secured party's power before proceeding against the
Guarantors; (b) any defense that may arise by reason of the incapacity, lack of
authority, death or disability of any other Person or Persons or the failure of
a Benefitted Party to file or enforce a claim against the estate (in
administration, bankruptcy or any other proceeding) of any other Person or
Persons; (c) demand, protest and notice of any kind (except as expressly
required by this Indenture), including but not limited to notice of the
existence, creation or incurring of any new or additional Indebtedness or
obligation or of any action or non-action on the part of the Guarantors, the
Company, the Subsidiaries, any Benefitted Party, any creditor of the Guarantors,
the Company or the Subsidiaries or on the part of any other Person whomsoever in
connection with any Obligations the performance of which are hereby guaranteed;
(d) any defense based upon an election of remedies by a Benefitted Party,
including but not limited to an election to proceed against the Guarantors for
reimbursement; (e) any defense based upon any statute or rule of law which
provides that the obligation of a surety must be neither larger in amount nor in
other respects more burdensome than that of the principal; (f) any defense
arising because of a Benefitted Party's election, in any proceeding instituted
under the Bankruptcy Law, of the application of Section 1111(b)(2) of the
Bankruptcy Code; and (g) any defense based on any borrowing or grant of a
security interest under Section 364 of the Bankruptcy Code. The Guarantors
hereby covenant that, except as otherwise provided therein, the Guarantees shall
not be discharged except by payment in full of all Guarantee Obligations,
including the principal, premium, if any, and interest on the Notes and all
other costs provided for under this Indenture.
If any Holder or the Trustee is required by any court or otherwise
to return to either the Company or the Guarantors, or any trustee or similar
official
119
acting in relation to either the Company or the Guarantors, any amount paid by
the Company or the Guarantors to the Trustee or such Holder, the Guarantees, to
the extent theretofore discharged, shall be reinstated in full force and effect.
Each of the Guarantors agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any Guarantee Obligations
hereby until payment in full of all such obligations guaranteed hereby. Each
Guarantor agrees that, as between it, on the one hand, and the Holders of Notes
and the Trustee, on the other hand, (x) the maturity of the Obligations
guaranteed hereby may be accelerated as provided in Article VI hereof for the
purposes hereof, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the Guarantee Obligations, and (y) in
the event of any acceleration of such Obligations as provided in Article VI
hereof, such Guarantee Obligations (whether or not due and payable) shall
forthwith become due and payable by such Guarantor for the purpose of the
Guarantee.
Section 1.89 Execution and Delivery of Guarantees
To evidence its Guarantee set forth in Section 10.1 hereof, each of
the Guarantors agrees that a notation of its Guarantee substantially in the form
included in Exhibit A hereto shall be endorsed on each Note authenticated and
delivered by the Trustee and that this Indenture shall be executed on behalf of
such Guarantor by an Officer of such Guarantor.
Each of the Guarantors agree that its Guarantee set forth in this
Article X shall remain in full force and effect and apply to all the Notes
notwithstanding any failure to endorse on each Note a notation of its Guarantee.
If an Officer whose facsimile signature is on a Note or a notation
of Guarantee no longer holds that office at the time the Trustee authenticates
the Note on which the Guarantee is endorsed, the Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantees set forth in
this Indenture on behalf of the Guarantors.
Section 1.90 Guarantors May Consolidate, etc., on Certain Terms
(a) Subject to Article V, nothing contained in this Indenture or in
the Notes shall prevent any consolidation or merger of any Guarantor with or
into each other or with or into the Company. Upon any such consolidation or
merger, the Guarantee of the Guarantor that does not survive the consolidation
or merger shall no longer be of any force or effect.
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(b) Except for a merger or consolidation in which a Guarantor is
sold and its Guarantee is released in compliance with the provisions of Section
10.4 hereof or as permitted by Section 10.3(a), no Guarantor shall consolidate
or merge with or into (whether or not such Guarantor is the surviving Person)
another Person unless, (i) subject to the provisions of the following paragraph
and the other provisions of this Indenture, the Person formed by or surviving
any such consolidation or merger (if other than such Guarantor) assumes all the
obligations of such Guarantor pursuant to a supplemental indenture, and (ii)
immediately before and immediately after giving effect to such transaction on a
pro forma basis, no Default or Event of Default shall have occurred or be
continuing. In case of any such consolidation or merger and upon the assumption
by the successor corporation, by supplemental indenture, executed and delivered
to the Trustee and reasonably satisfactory in form to the Trustee, of the
Guarantees endorsed upon the Notes and the due and punctual performance of all
of the covenants and conditions of this Indenture to be performed by such
Guarantor, such successor corporation shall succeed to and be substituted for
such Guarantor with the same effect as if it had been named herein as a
Guarantor. Such successor corporation thereupon may cause to be signed any or
all of the Guarantees to be endorsed upon all of the Notes issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the
Trustee. All the Guarantees so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Guarantees theretofore and
thereafter issued in accordance with the terms of this Indenture as though all
of such Guarantees had been issued at the date of the execution hereof.
(c) The Trustee, subject to the provisions of Section 12.4 hereof,
shall be entitled to receive an Officers' Certificate as conclusive evidence
that any such consolidation or merger, and any such assumption of Guarantee
Obligations, comply with the provisions of this Section 10.3. Such Officers'
Certificate shall comply with the provisions of Section 12.5 hereof.
Section 1.91 Release of Guarantors
Notwithstanding Section 10.3(b) hereof, upon the sale or disposition
(including by merger or stock purchase) of a Guarantor (other than a sale or
disposition of Parent, which shall be governed by Section 5.3) (as an entirety)
to an entity which is not and is not required to become a Guarantor, or the
designation of a Subsidiary to become an Unrestricted Subsidiary, which
transaction is otherwise in compliance with this Indenture (including, without
limitation, the provisions of Section 4.13 hereof), such Guarantor shall be
deemed released from its obligations under its Guarantee of the Notes; provided,
however, that any such termination shall occur only to the extent that all
obligations of such Guarantor under all of its guarantees of, and under all of
its pledges of assets or other security interests which secure, any Indebtedness
of the Company or the Parent or any Indebtedness of any
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other Subsidiary of the Company and the Parent shall also terminate upon such
release, sale or transfer and none of its Equity Interests are pledged for the
benefit of any holder of any Indebtedness of the Company or the Parent or any
Indebtedness of any Subsidiary of the Company or the Parent.
Upon delivery by the Company to the Trustee of an Officers'
Certificate, to the effect that such sale or other disposition or that such
designation was made by the Company in accordance with the provisions of this
Indenture, the Trustee shall execute any documents reasonably required in order
to evidence the release of any such Guarantor from its obligations under its
Guarantee. Except as provided in Section 10.3(a) hereof, any Guarantor not
released from its obligations under its Guarantee shall remain liable for the
full amount of principal of and interest on the Notes and for the other
obligations of any Guarantor under this Indenture as provided in this Article X.
Notwithstanding the foregoing provisions of this Article X, (i) any
Guarantor whose Guarantee would otherwise be released pursuant to the provisions
of this Section 10.4 may elect, at its sole discretion, by written notice to the
Trustee, to maintain such Guarantee in effect notwithstanding the event or
events that otherwise would cause the release of such Guarantee (which election
to maintain such Guarantee in effect may be conditional or for a limited period
of time), and (ii) any Subsidiary of the Company which is not a Guarantor may
elect, at its sole discretion, by written notice to the Trustee, to become a
Guarantor (which election may be conditional or for a limited period of time).
IF, AT ANY TIME WHEN THERE IS INDEBTEDNESS OUTSTANDING UNDER THE
ORIGINAL CREDIT AGREEMENT, THE GUARANTEE OF ALL OF THE INDEBTEDNESS UNDER THE
ORIGINAL CREDIT AGREEMENT OF ANY OF THE GUARANTORS, OTHER THAN THE PARENT, IS
RELEASED PURSUANT TO THE TERMS OF THE ORIGINAL CREDIT AGREEMENT, THE PARENT MAY
CAUSE SUCH GUARANTOR TO BE RELEASED FROM ITS OBLIGATIONS UNDER ITS GUARANTEE OF
THE NOTES; PROVIDED, HOWEVER, THAT ANY SUCH TERMINATION SHALL OCCUR ONLY TO THE
EXTENT THAT ALL OBLIGATIONS OF SUCH GUARANTOR UNDER ALL OF ITS GUARANTEES OF,
AND UNDER ALL OF ITS PLEDGES OF ASSETS OR OTHER SECURITY INTERESTS WHICH SECURE,
ANY OF INDEBTEDNESS OF THE COMPANY OR THE PARENT OR ANY INDEBTEDNESS OF ANY
OTHER GUARANTOR SHALL ALSO TERMINATE UPON SUCH RELEASE, SALE OR TRANSFER AND
NONE OF ITS EQUITY INTERESTS ARE PLEDGED FOR THE BENEFIT OF ANY HOLDER OF ANY
INDEBTEDNESS (OTHER THAN INDEBTEDNESS UNDER THE ORIGINAL CREDIT AGREEMENT) OF
THE COMPANY OR THE PARENT OR ANY INDEBTEDNESS (OTHER THAN INDEBTEDNESS UNDER THE
ORIGINAL CREDIT AGREEMENT) OF ANY GUARANTOR; PROVIDED, FURTHER, THAT, THE PARENT
MAY NOT CAUSE A RELEASE OF ANY GUARANTOR FROM ITS OBLIGATIONS UNDER ITS
GUARANTEE OF THE NOTES PURSUANT TO THE PROVISIONS OF THIS PARAGRAPH AS A RESULT
OF A RELEASE OF SUCH GUARANTOR'S GUARANTEE OF INDEBTEDNESS UNDER THE ORIGINAL
CREDIT AGREEMENT IN CONNECTION WITH THE PAYMENT OF ALL OR SUBSTANTIALLY ALL OF
THE INDEBTEDNESS OUTSTANDING UNDER THE ORIGINAL CREDIT AGREEMENT AT SUCH TIME.
IF AT ANY TIME THERE IS NO INDEBTEDNESS OUTSTANDING UNDER THE
ORIGINAL CREDIT AGREEMENT AND (A) ANY FOREIGN SUBSIDIARY OF THE COMPANY THAT HAS
NOT BECOME DOMESTICATED INTO THE UNITED STATES (i) HAS GUARANTEED THE NOTES AND
(ii) THE PARENT GROUP WOULD INCUR A TAX LIABILITY, AS DETERMINED ON A
CONSOLIDATED BASIS, MATERIALLY GREATER THAN THE TAX LIABILITY THAT WOULD BE
INCURRED BY THE PARENT GROUP, DETERMINED ON A CONSOLIDATED BASIS, HAD NO SUCH
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GUARANTEE BEEN INCURRED, OR (B) THE GUARANTEE OF ANY FOREIGN SUBSIDIARY OF THE
PARENT BECOMES ILLEGAL UNDER APPLICABLE LAW AND SUCH FOREIGN SUBSIDIARY DELIVERS
AN OPINION OF COUNSEL TO THE TRUSTEE TO SUCH EFFECT, THEN, IN EACH CASE, THE
PARENT MAY CAUSE SUCH FOREIGN SUBSIDIARY TO BE RELEASED FROM ITS GUARANTEE IN
ACCORDANCE WITH THE PROVISIONS OF THE INDENTURE; PROVIDED, HOWEVER, THAT ANY
SUCH RELEASE SHALL OCCUR ONLY TO THE EXTENT THAT ALL OBLIGATIONS OF SUCH
GUARANTOR UNDER ALL OF ITS GUARANTEES OF, AND UNDER ALL OF ITS PLEDGES OF ASSETS
OR OTHER SECURITY INTERESTS WHICH SECURE, ANY OF INDEBTEDNESS OF THE COMPANY OR
THE PARENT OR ANY INDEBTEDNESS OF ANY OTHER SUBSIDIARY OF THE COMPANY AND THE
PARENT SHALL ALSO TERMINATE UPON SUCH RELEASE, SALE OR TRANSFER AND NONE OF ITS
EQUITY INTERESTS ARE PLEDGED FOR THE BENEFIT OF ANY HOLDER OF ANY INDEBTEDNESS
OF THE COMPANY OR THE PARENT OR ANY INDEBTEDNESS OF ANY SUBSIDIARY OF THE
COMPANY OR THE PARENT.
Section 1.92 Limitation of Guarantor's Liability; Certain Bankruptcy Events
(a) Each Guarantor, and by its acceptance hereof each Holder, hereby
confirms that it is the intention of all such parties that the Guarantee
Obligation of such Guarantor pursuant to its Guarantee not constitute a
fraudulent transfer or conveyance for purposes of any Bankruptcy Law, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar federal or state law. To effectuate the foregoing intention, the Holders
and such Guarantor hereby irrevocably agree that the Guarantee Obligations of
such Guarantor under this Article X shall be limited to the maximum amount as
shall, after giving effect to all other contingent and fixed liabilities of such
Guarantor and after giving effect to any collections from or payments made by or
on behalf of any other Guarantor in respect of the Guarantee Obligations of such
other Guarantor under this Article X, result in the Guarantee Obligations of
such Guarantor under the Guarantee of such Guarantor not constituting a
fraudulent transfer or conveyance.
(b) Each Guarantor hereby covenants and agrees, to the fullest
extent that it may do so under applicable law, that in the event of the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Company, such Guarantor shall not file (or join in any filing of), or otherwise
seek to participate in the filing of, any motion or request seeking to stay or
to prohibit (even temporarily) execution on the Guarantee and hereby waives and
agrees, to the fullest extent that it may do so under applicable law, not to
take the benefit of any such stay of execution, whether under Section 362 or 105
of the Bankruptcy Law or otherwise.
Section 1.93 Application of Certain Terms and Provisions to the Guarantors
(a) For purposes of any provision of this Indenture which provides
for the delivery by any Guarantor of an Officers' Certificate and/or an Opinion
of Counsel, the definitions of such terms in Section 1.1 hereof shall apply to
such Guarantor as if references therein to the Company were references to such
Guarantor.
(b) Any request, direction, order or demand which by any
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provision of this Indenture is to be made by any Guarantor, shall be sufficient
if evidenced as described in Section 12.2 hereof as if references therein to the
Company were references to such Guarantor.
(c) Any notice or communication which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders of Notes to or on any Guarantor may be given or served as described
in Section 12.2 hereof as if references therein to the Company were references
to such Guarantor.
(d) Upon any demand, request or application by any Guarantor to the
Trustee to take any action under this Indenture, such Guarantor shall furnish to
the Trustee such certificates and opinions as are required in Section 12.4
hereof as if all references therein to the Company were references to such
Guarantor.
Section 1.94 Subordination of Guarantees
The obligations of each Guarantor under its Guarantee pursuant to
this Article X is subordinated in right of payment to the prior payment in full
in cash of all Senior Debt of such Guarantor on the same basis as the Notes are
subordinated to Senior Debt of the Company. For the purposes of the foregoing
sentence, the Trustee and the Holders shall have the right to receive and/or
retain payments by any of the Guarantors only at such times as they may receive
and/or retain payments in respect of Notes pursuant to this Indenture, including
as set forth in Article XI hereof. In the event that the Trustee or the Holders
receive any payment from a Guarantor at a time when such payment is prohibited
by the foregoing sentence, such payment shall be held in trust for the benefit
of, and immediately paid over and delivered to, the holders of the Senior Debt
of such Guarantor remaining unpaid, to the extent necessary to pay in full in
cash all such Senior Debt.
ARTICLE XI
SUBORDINATION
Section 1.95 Notes Subordinated to Senior Debt
The Company and the Guarantors, and each Holder by its acceptance of
Notes, agree that (a) the payment of the principal of, premium, if any, and
interest (and Liquidated Damages, if any) on the Notes and (b) any other payment
in respect of the Notes, including on account of the acquisition or redemption
of the Notes by the Company and the Guarantors (including, without limitation,
pursuant to Sections 4.13 and 4.14) is subordinated, to the extent and in the
manner provided in this Article XI, to the prior payment in full in cash of all
Senior Debt of the Company and the Guarantors, as applicable, and that these
subordination provisions are for the benefit of the holders of Senior Debt.
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This Article XI shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of, or continue to hold,
Senior Debt, and such provisions are made for the benefit of the holders of
Senior Debt and such holders are made obligees hereunder and any one or more of
them may enforce such provisions.
Section 1.96 No Payment on Notes in Certain Circumstances
(1) No payment (by setoff or otherwise), as applicable, on account
of any Obligation in respect of the Notes, including the principal of, premium,
if any, or interest on the Notes or Liquidated Damages, or on account of the
redemption provisions of the Notes (including any repurchases of Notes), for
cash or property (other than Junior Securities): (i) upon the maturity of any of
the Company's Senior Debt or any Senior Debt of such Guarantor by lapse of time,
acceleration (unless waived) or otherwise, unless and until all principal of,
premium, if any, and the interest on such Senior Debt are first paid in full in
cash or Cash Equivalents (or such payment is duly provided for); or (ii) in the
event of default in the payment of any principal of, premium, if any, or
interest on the Company's Senior Debt or Senior Debt of such Guarantor, as
applicable, when it becomes due and payable, whether at maturity or at a date
fixed for prepayment or by declaration or otherwise (a "Payment Default"),
unless and until such Payment Default has been cured or waived or otherwise has
ceased to exist.
(2) Upon (i) the happening of an event of default other than a
Payment Default that permits the holders of Senior Debt to declare such Senior
Debt to be due and payable and (ii) written notice of such event of default
given to the Company by the representative under the Credit Agreement or, if no
Indebtedness under the Credit Agreement is then outstanding, the holders of an
aggregate of at least $25,000,000 principal amount outstanding of any other
Senior Debt or their representative (a "Payment Notice"), then, unless and until
such event of default has been cured or waived or otherwise has ceased to exist,
no payment (by setoff or otherwise) may be made by the Company or on behalf of
the Company or by or on behalf of any Guarantor which is an obligor under such
Senior Debt on account of any Obligation in respect of the Notes, including the
principal of, premium, if any, or interest on the Notes (including any
repurchases of any of the Notes), or on account of the redemption provisions of
the Notes (or Liquidated Damages), in any such case, other than payments made
with Junior Securities. Notwithstanding the foregoing, unless the Senior Debt in
respect of which such event of default exists has been declared due and payable
in its entirety within 179 days after the Payment Notice is delivered as set
forth above (the "Payment Blockage Period") (and such declaration has not been
rescinded or waived), at the end of the Payment Blockage Period, the Company and
the Guarantors shall be required to pay all sums not previously paid to
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the Holders of the Notes during the Payment Blockage Period due to the foregoing
prohibitions and to resume all other payments as and when due on the Notes.
Any number of Payment Notices may be given; provided, however, that:
(i) not more than one Payment Notice shall be given within a period of any 360
consecutive days; and (ii) no non-payment default that existed upon the date of
such Payment Notice or the commencement of such Payment Blockage Period shall be
made the basis for the commencement of any other Payment Blockage Period (for
purposes of this provision, any subsequent action, or any subsequent breach of
any financial covenant for a period commencing after the expiration of such
Payment Blockage Period that, in either case, would give rise to a new event of
default, even though it is an event that would also have been a separate breach
pursuant to any provision under which a prior event of default previously
existed, shall constitute a new event of default for this purpose).
(3) In furtherance of the provisions of Section 11.1, in the event
that, notwithstanding the foregoing provisions of this Section 11.2 or Section
11.3, any payment or distribution of the Company's assets or any Guarantor's
assets (other than Junior Securities) shall be received by the Trustee or the
Holders at a time when such payment or distribution is prohibited by the
foregoing provisions of this Section 11.2, such payment or distribution shall be
held in trust for the benefit of the holders of such Senior Debt, and shall be
immediately paid or delivered by the Trustee or such Holders, as the case may
be, to the holders of such Senior Debt remaining unpaid or unprovided for or to
their representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Senior Debt
may have been issued, ratably according to the aggregate principal amounts
remaining unpaid on account of such Senior Debt held or represented by each, for
application to the payment of all such Senior Debt remaining unpaid, to the
extent necessary to pay or to provide for the payment of all such Senior Debt in
full in cash or Cash Equivalents after giving effect to any concurrent payment
or distribution to the Holders of such Senior Debt.
Section 1.97 Notes Subordinated to Prior Payment of All Senior Debt on
Dissolution, Liquidation or Reorganization
Upon any distribution of the Company's assets or any Guarantor's
assets upon any dissolution, winding up, total or partial liquidation or
reorganization of the Company or a Guarantor, whether voluntary or involuntary,
in bankruptcy, insolvency, receivership or a similar proceeding or upon
assignment for the benefit of creditors or any marshaling of assets or
liabilities:
(1) the holders of all of the Company's Senior Debt or such
Guarantor's Senior Debt, as applicable, shall first be entitled to receive
payment in
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full in cash or Cash Equivalents (or have such payment duly provided for) before
the Holders are entitled to receive any payment on account of any Obligation in
respect of the Notes, including the principal of, premium, if any, and interest
on the Notes (or Liquidated Damages) (other than Junior Securities); and
(2) any payment or distribution of the Company's assets or such
Guarantor's assets of any kind or character from any source, whether in cash,
property or securities (other than Junior Securities) to which the Holders or
the Trustee on behalf of the Holders would be entitled (by setoff or otherwise),
except for the subordination provisions contained in this Indenture, shall be
immediately paid by the liquidating trustee or agent or other Person making such
a payment or distribution directly to the holders of such Senior Debt or their
representative to the extent necessary to make payment in full (or have such
payment duly provided for) on all such Senior Debt remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders of such
Senior Debt.
Section 1.98 Holders to Be Subrogated to Rights of Holders of Senior Debt
Subject to the payment in full in cash of all Senior Debt of the
Company or any Guarantor as provided herein, the Holders of Notes shall be
subrogated to the rights of the holders of such Senior Debt to receive payments
or distributions of assets of the Company applicable to the Senior Debt until
all amounts owing on the Notes shall be paid in full, and for the purpose of
such subrogation no such payments or distributions to the holders of such Senior
Debt by or on behalf of the Company or any Guarantor, or by or on behalf of the
Holders by virtue of this Article XI, which otherwise would have been made to
the Holders shall, as between the Company or any Guarantor and the Holders, be
deemed to be payment by the Company or any Guarantor or on account of such
Senior Debt, it being understood that the provisions of this Article XI are and
are intended solely for the purpose of defining the relative rights of the
Holders, on the one hand, and the holders of such Senior Debt, on the other
hand.
Section 1.99 Relative Rights
This Article XI defines the relative rights of Holders and holders
of Senior Debt. Nothing in this Indenture shall: (1) impair, as between the
Company and Holders, the obligation of the Company, which is absolute and
unconditional, to pay principal of and interest on the Notes in accordance with
their terms; (2) affect the relative rights of Holders and creditors of the
Company other than their rights in relation to holders of Senior Debt; or (3)
prevent the Trustee or any Holder from exercising its available remedies upon a
Default or Event of Default, subject to the rights of holders and owners of
Senior Debt to receive distributions and payments otherwise payable to Holders.
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Section 1.100 Trustee Entitled to Assume Payments Not Prohibited in Absence of
Notice
The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or by
the Trustee unless and until a Responsible Officer of the Trustee or any Paying
Agent shall have received, no later than three Business Days prior to such
payment written notice thereof from the Company or from one or more holders of
Senior Debt or from any representative therefor and, prior to the receipt of any
such written notice, the Trustee, subject to the provisions of Sections 7.1 and
7.2, shall be entitled in all respects conclusively to assume that no such fact
exists.
Notwithstanding anything to the contrary in this Article XI or
elsewhere in this Indenture or in the Notes, upon any distribution of assets of
the Company and the Guarantors referred to in this Article XI, the Trustee,
subject to the provisions of Sections 7.1 and 7.2, and the Holders shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
trustee or agent or other Person making any distribution to the Trustee or to
the Holders for the purpose of ascertaining the Persons entitled to participate
in such distribution, the holders of the Senior Debt and other Indebtedness of
the Company or any Guarantor, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article XI so long as such court has been apprised of the provisions of,
or the order, decree or certificate makes reference to, the provisions of this
Article XI.
Section 1.101 Application by Trustee of Assets Deposited With It
Amounts deposited in trust with the Trustee pursuant to and in
accordance with Article VIII shall be for the sole benefit of Holders and, to
the extent the making of such deposit by the Company shall (i) not be in
contravention of any term or provision of the Credit Agreement and (ii) be
allocated for the payment of the Notes, shall not be subject to the
subordination provisions of this Article XI. Otherwise, any deposit of assets
with the Trustee or the Agent (whether or not in trust) for the payment of
principal of or interest on any Notes shall be subject to the provisions of
Sections 11.1, 11.2, 11.3 and 11.4; provided, that, if prior to three Business
Days preceding the date on which by the terms of this Indenture any such assets
may become distributable for any purpose (including without limitation, the
payment of either principal of or interest on any Note) the Trustee or such
Paying Agent shall not have received with respect to such assets the written
notice provided for in Section 11.6, then the Trustee or such Paying Agent shall
have full power and authority to receive such assets and to apply the same to
the purpose for which they
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were received, and shall not be affected by any notice to the contrary which may
be received by it on or after such date.
Section 1.102 Subordination Rights Not Impaired by Acts or Omissions of the
Company, the Guarantors or Holders of Senior Debt
No right of any present or future holders of any Senior Debt to
enforce the subordination provisions contained in this Article XI shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or any Guarantor or by any act or failure to act, in good
faith, by any such Holder, or by any noncompliance by the Company or any
Guarantor with the terms of this Indenture, regardless of any knowledge thereof
which any such Holder may have or be otherwise charged with. The holders of
Senior Debt may extend, renew, modify or amend the terms of the Senior Debt or
any security therefor and release, sell or exchange such security and otherwise
deal freely with the Company and the Guarantors, all without affecting the
liabilities and obligations of the parties to this Indenture or the Holders. The
subordination provisions contained in this Indenture are for the benefit of the
holders from time to time of Senior Debt and may not be rescinded, cancelled,
amended or modified in any way other than any amendment or modification that is
consented to by each Holder of Senior Debt that would be adversely affected
thereby. The subordination provisions hereof shall continue to be effective or
be reinstated, as the case may be, if at any time any payment of any of the
Senior Debt is rescinded or must otherwise be returned by any Holder of the
Senior Debt upon the insolvency, bankruptcy, or reorganization of the Company,
any Guarantor, or otherwise, all as though such payment has not been made.
Section 1.103 Holders Authorize Trustee to Effectuate Subordination of Notes.
Each Holder of the Notes by his acceptance thereof authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provisions contained in
this Article XI and to protect the rights of the Holders pursuant to this
Indenture, and appoints the Trustee his attorney-in-fact for such purpose,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company or any Guarantor (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the benefit of
creditors or any other marshaling of assets and liabilities of the Company or
any Guarantor), the immediate filing of a claim for the unpaid balance of his
Notes in the form required in said proceedings and cause said claim to be
approved. In the event of any liquidation or reorganization of the Company or
any Guarantor in bankruptcy, insolvency, receivership or similar proceeding, if
the Holders of the Notes (or the Trustee on their behalf) have not filed any
claim, proof of claim, or other instrument of similar character necessary to
enforce the obligations of the Company or any Guarantor in respect of the Notes
at
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least thirty (30) days before the expiration of the time to file the same, then
in such event, but only in such event, the holders of the Senior Debt or a
representative on their behalf may, as an attorney-in-fact for such Holders,
file any claim, proof of claim, or other instrument of similar character on
behalf of such Holders. Nothing herein contained shall be deemed to authorize
the Trustee or the holders of Senior Debt or their representative to authorize
or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee or the holders of
Senior Debt or their representative to vote in respect of the claim of any
Holder in any such proceeding.
Section 1.104 Right of Trustee to Hold Senior Debt
The Trustee shall be entitled to all of the rights set forth in this
Article XI in respect of any Senior Debt at any time held by it to the same
extent as any other holder of Senior Debt, and nothing in this Indenture shall
be construed to deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 7.7.
Section 1.105 Article XI Not to Prevent Events of Default
The failure to make a payment on account of principal of, premium,
if any, or interest (or Liquidated Damages, if any) on the Notes by reason of
any provision of this Article XI shall not be construed as preventing the
occurrence of a Default or an Event of Default under Section 6.1 or in any way
limit the rights of the Trustee or any Holder to pursue any other rights or
remedies with respect to the Notes.
Section 1.106 No Fiduciary Duty of Trustee to Holders of Senior Debt
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if it shall
in good faith mistakenly pay over or distribute to the Holders of Notes or the
Company, any Guarantor or any other Person, cash, property or securities to
which any holders of Senior Debt shall be entitled by virtue of this Article XI
or otherwise. With respect to the holders of Senior Debt, the Trustee undertakes
to perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article and no implied covenants or obligations
with respect to holders of Senior Debt shall be read into this Indenture against
the Trustee. Nothing in this Section 11.12 shall affect the obligation of any
other such Person to hold such payment for the benefit of, and to pay such
payment over to, the holders of Senior Debt or their representative. In the
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event of any conflict between the fiduciary duty of the Trustee to the Holders
of Notes and to the holders of Senior Debt, the Trustee is expressly authorized
to resolve such conflict in favor of the Holders.
ARTICLE XII
MISCELLANEOUS
Section 1.107 Trust Indenture Act Controls
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by the TIA, the imposed duties shall control.
Section 1.108 Notices
Any notice or communication by the Company 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), telecopier or
overnight air courier guaranteeing next day delivery, to the others' address:
If to the Company
or the Guarantors:
WH Acquisition Corp.
c/o Whitney & Co., LLC
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xx. Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxx, Esq.
Telecopier No. (000) 000-0000
with copies (which
shall not constitute
notice) to:
Xxxxxxxxxx & Xxxxx, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, Esq.
Telecopier No. (000) 000-0000
If to the Trustee:
000
Xxx Xxxx xx Xxx Xxxx
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 1005
Attention: Global Finance Unit
Telecopier No.: (000) 000-0000
The Company or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: (i) at the time delivered by hand, if
personally delivered; (ii) the third Business Day after sent by mail; (iii) when
receipt acknowledged, if telecopied; and (iv) the next Business Day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next day
delivery.
Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar. Any notice or communication shall also be so mailed to
any Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
Section 1.109 Communication by Holders of Notes with Other Holders of Notes
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
Section 1.110 Certificate and Opinion as to Conditions Precedent
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.5 hereof) stating that, in the opinion of the signers, all conditions
precedent and
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covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.5 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
Section 1.111 Statements Required in Certificate or Opinion
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
satisfied; and
(4) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied; provided, however, that with
respect to matters of fact, an Opinion of Counsel may rely on an Officers'
Certificate or certificate of public officials.
Section 1.112 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 1.113 No Personal Liability of Directors, Officers, Employees and
Stockholders
No past, present or future director, officer, employee, incorporator
or stockholder (direct or indirect) of the Company or the Guarantors (or any
such
133
successor entity), as such, shall have any liability for any Obligations of the
Company or the Guarantors under the Notes, the Guarantees or this Indenture
solely by reason of his or its status as such stockholder, employee, officer or
director, except that this provision shall in no way limit the obligation of any
Guarantor pursuant to any Guarantee of the Notes. 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 1.114 Governing Law
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES, INCLUDING, WITHOUT
LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW
AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(b).
Section 1.115 No Adverse Interpretation of Other Agreements
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Company or its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
Section 1.116 Successors
All agreements of the Company and the Guarantors in this Indenture
and the Notes shall bind their successors. All agreements of the Trustee in this
Indenture shall bind its successors.
Section 1.117 Severability
In case any one or more of the provisions of this Indenture or in
the Notes or in the Guarantees shall be held invalid, illegal or unenforceable,
in any respect for any reason, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions shall not
in any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
Section 1.118 Counterpart Originals
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
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Section 1.119 Table of Contents, Headings, Etc.
The Table of Contents and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part of this Indenture and shall in no way modify or restrict
any of the terms or provisions hereof.
[Signatures on following page]
135
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed this Indenture
as of the date first written above.
THE COMPANY:
WH ACQUISITION CORP.
By: /s/
------------------------------------
Name:
Title:
PARENT:
WH INTERMEDIATE HOLDINGS, LTD.
By: /s/
------------------------------------
Name:
Title:
GUARANTORS:
WH LUXEMBOURG HOLDINGS SaRL
By: /s/
------------------------------------
Name:
Title:
WH LUXEMBOURG INTERMEDIATE HOLDINGS SaRL
By: /s/
------------------------------------
Name:
Title:
WH LUXEMBOURG CM SaRL
By: /s/
------------------------------------
Name:
Title:
THE TRUSTEE:
THE BANK OF NEW YORK
By: /s/
------------------------------------
Name:
Title:
EXHIBIT A
[FORM OF NOTE]
WH Acquisition Corp.
11 3/4% [SERIES A] [SERIES B](1) SENIOR SUBORDINATED NOTE
DUE 2010
CUSIP: __________
ISIN: _________
No. $________________
WH Acquisition Corp., a Nevada corporation (hereinafter called the
"Company" which term includes any successors under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of __________ Dollars, on July 15, 2010.
Interest Payment Dates: January 15 and July 15, commencing January 15,
2003.
Record Dates: January 1 and July 1.
Reference is made to the further provisions of this Note on the reverse
side, which shall, for all purposes, have the same effect as if set forth at
this place.
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(1) Series A should be replaced with Series B in the Exchange Notes.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
WH ACQUISITION CORP.
By: /s/
------------------------------------
Name:
Title:
By: /s/
------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned Indenture.
THE BANK OF NEW YORK
By: /s/
------------------------------------
Authorized Signatory
Dated:
--------------------
(Back of Note)
11 3/4% [Series A] [Series B](2) Senior Subordinated Notes due 2010
[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 2.6 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.6(a) 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 COMPANY.](3)
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.](4)
--------------
(2) Series A should be replaced with Series B in the Exchange Notes.
(3) To be included only on Global Notes deposited with the Depositary.
(4) To be included only on Global Notes deposited with the Depositary.
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[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE CASH PAYMENTS OF INTEREST DURING THE PERIOD WHICH SUCH HOLDER HOLDS
THIS NOTE. NOTHING IN THIS LEGEND SHALL BE DEEMED TO PREVENT INTEREST FROM
ACCRUING ON THIS NOTE.](5)
[THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED, AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF,
U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(i) REPRESENTS THAT(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE ACT) (A"QIB"), (B) IT HAS ACQUIRED THIS NOTE IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE ACT OR (C)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT) (AN "IAI" ),
(ii) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT
(A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR 904 OF THE ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144 UNDER THE ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE
OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH
THE ACT, (F) IN ACCORDANCE
--------------
(5) To be included only on Reg S Temporary Global Notes in accordance with
Section 2.6(g)(iii) of the Indenture.
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WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT (AND
BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (G)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (iii) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE THE
MEANING GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE ACT. THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF
THIS NOTE IN VIOLATION OF THE FOREGOING.](6)
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture (as defined below) unless otherwise indicated.
1. Interest. the Company promises to pay interest on the principal amount
of this Note at 11 3/4% per annum from the Issue Date until maturity and shall
pay the Liquidated Damages, if any, payable pursuant to Section 4 of the
Registration Rights Agreement referred to below. The Company shall pay interest
(and Liquidated Damages, if any) semi-annually on January 15 and July 15 of each
year, or if any such day is not a Business Day, on the next succeeding Business
Day (each an "Interest Payment Date"). The first Interest Payment Date shall be
January 15, 2003. Interest on the Notes shall accrue from the most recent date
to which interest has been paid or, if no interest has been paid, from the Issue
Date; provided that if there is no existing Default in the payment of interest,
and if this Note is authenticated between a Record Date (defined below) referred
to on the face hereof and the next succeeding Interest Payment Date, interest
shall accrue from such next succeeding Interest Payment Date. The Company shall
pay interest (including Accrued Bankruptcy Interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at the rate then in effect; it shall pay interest (including Accrued
Bankruptcy Interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (and Liquidated Damages, if any) (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
-------------
(6) To be included only on Transfer Restricted Notes.
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2. Method of Payment. The Company shall pay interest on the Notes (except
defaulted interest) (and Liquidated Damages, if any) to the Persons who are
registered Holders of Notes at the close of business on the January 1 or July 1
next preceding the Interest Payment Date (each a "Record Date"), even if such
Notes are cancelled after such Record Date and on or before such Interest
Payment Date, except as provided in Section 2.12 of the Indenture with respect
to defaulted interest. The Notes shall be payable as to principal, interest,
premium, if any, (and Liquidated Damages, if any) at the office or agency of the
Company maintained within the City and State of New York for such purpose, or,
at the option of the Company, payment of interest (and Liquidated Damages, if
any) may be made by check mailed to the Holders at their addresses set forth in
the register of Holders, and provided that payment by wire transfer of
immediately available funds to an account within the United States shall be
required with respect to principal of and interest, premium, if any (and
Liquidated Damages, if any), on all Global Notes. Such payment shall be in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, The Bank of New York, the
Trustee under the Indenture, shall act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to any Holder.
The Company or any of its Subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture dated as of
the Issue Date ("Indenture") by and among the Company, the Guarantors party
thereto 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. Code Sections 77aaa-77bbbb). The
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms.
5. Optional Redemption.
(2) Except as set forth in clause (b), the Company shall not have the
option to redeem the Notes pursuant to this Section 5 prior to July 15, 2006.
The Notes shall be redeemable for cash at the option of the Company, in whole or
in part, at any time on or after July 15, 2006, upon not less than 30 days nor
more than 60 days prior notice mailed by first class mail to each Holder at its
last registered address, at the following redemption prices (expressed as
percentages of the principal amount) if redeemed during the 12-month period
commencing July 15 of the years indicated below, in each case (subject to the
right of Holders of record on a Record Date to receive the corresponding
interest due (and the corresponding Liquidated Damages, if any) on the
corresponding Interest Payment Date that is on or prior to such redemption date)
together with accrued and unpaid interest (and Liquidated Damages, if any)
thereon to the date of redemption of the Notes (the "Redemption Date"):
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Year Percentage
---- ----------
2006............................. 105.875 %
2007............................. 102.938 %
2008 and thereafter.............. 100.000 %
(3) Notwithstanding the provisions of clause (a) of this Section 5, at
any time on or prior to July 15, 2005, upon one or more Qualified Equity
Offerings, up to 35% of the aggregate principal amount of the Notes issued
pursuant to the Indenture (only as necessary to avoid any duplication, excluding
any replacement Notes) may be redeemed at the Company's option within 90 days of
the closing of any such Qualified Equity Offering, on not less than 30 days, but
not more than 60 days, prior notice to each Holder of the Notes to be redeemed,
with cash received by the Company from the Net Cash Proceeds of such Qualified
Equity Offering, at a redemption price equal to 111.75% of principal, together
with accrued and unpaid interest (and Liquidated Damages, if any) thereon to the
Redemption Date; provided, however, that immediately following each such
redemption not less than 65% of the aggregate principal amount of the Notes
originally issued pursuant to the Indenture on the Issue Date remain outstanding
(only as necessary to avoid any duplication, excluding any replacement Notes).
(4) Notice of redemption shall be mailed by first class mail at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in integral multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest (and Liquidated Damages, if any) ceases to
accrue on Notes or portions thereof called for redemption unless the Company
defaults in such payments due on the redemption date.
1. Mandatory Redemption. If (i) the Merger has not occurred prior to the
close of business on August 31, 2002 substantially in accordance with the terms
of the Merger Agreement, or (ii) the Company has determined that the Merger
shall not occur by that date on substantially the terms set forth in the Merger
Agreement and the Offering Memorandum, for consideration not in excess of the
amount determined in accordance with the Merger Agreement (each, a "Triggering
Event"), the Company shall be required to redeem (a "Mandatory Redemption") all
of the outstanding Notes, for a price equal to 101% of their principal amount,
plus accrued and unpaid interest thereon through the redemption date (the
"Mandatory Redemption Price"). The Mandatory Redemption must occur no later than
10 Business Days after the Triggering Event (the "Mandatory
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Redemption Date"). Except for a Mandatory Redemption, the Company will not be
required to make any mandatory redemption payments with respect to the Notes and
the Notes will not have the benefit of any sinking fund.
2. Offers to Purchase.
(5) Change of Control. In the event that a Change of Control has
occurred, each Holder of Notes shall have the right, at such Holder's option,
pursuant to an offer (subject only to conditions required by applicable law, if
any) by the Company (the "Change of Control Offer"), to require the Company to
repurchase all or any part of such Holder's Notes (provided, that the principal
amount of such Notes must be $1,000 or an integral multiple thereof) on a date
(the "Change of Control Purchase Date") that is no later than 45 Business Days
after the occurrence of such Change of Control, at a cash price equal to 101% of
the principal amount thereof, together with accrued and unpaid interest (and
Liquidated Damages, if any), to the Change of Control Purchase Date.
The Change of Control Offer shall be made within 20 Business Days
following a Change of Control and shall remain open for 20 Business Days
following its commencement or such other period as may be required by applicable
law (the "Change of Control Offer Period"). Upon expiration of the Change of
Control Offer Period, the Company shall promptly purchase all Notes properly
tendered in response to the Change of Control Offer.
(6) Asset Sale. If the Company, the Parent or any of their respective
Subsidiaries consummates an Asset Sale, within 30 days after the date that the
amount of Excess Proceeds exceeds $15,000,000, the Company shall apply the
Excess Proceeds (the "Asset Sale Offer Amount") to the repurchase of the Notes
and such other Indebtedness ranking on a parity with the Notes and with similar
provisions requiring the Company to make an offer to purchase such Indebtedness
with the proceeds from such Asset Sale pursuant to a cash offer (subject only to
conditions required by applicable law, if any) (pro rata in proportion to the
respective principal amounts (or accreted values in the case of Indebtedness
issued with an original issue discount) of the Notes and such other Indebtedness
then outstanding) (the "Asset Sale Offer"), at a purchase price of 100% of the
principal amount (or accreted value in the case of Indebtedness issued with an
original issue discount) (the "Asset Sale Offer Price"), together with accrued
and unpaid interest and Liquidated Damages, if any, to the date of payment. Each
Asset Sale Offer shall remain open for a minimum of 20 Business Days following
its commencement (the "Asset Sale Offer Period").
(7) Excess Cash Flow. If the Parent has Excess Cash Flow for any fiscal
year, then no later than the 140th day following the end of each fiscal year,
after
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the Parent applies an amount equal to 50% of the Excess Cash Flow to payments to
the Senior Debt of the Company or the Guarantors, to the extent the remaining
balance (the "Excess Cash Flow Amount") is greater than $5,000,000, the Parent
will make an offer (the "Excess Cash Flow Offer") to the holders of the Notes to
purchase, on a pro rata basis, Notes at a purchase price in cash equal to 100%
of the principal amount of the Notes to be purchased (the "Excess Cash Flow
Purchase Price"), together with accrued and unpaid interest and Liquidated
Damages, if any, to the date fixed for the purchase of the Notes. Each Excess
Cash Flow Offer shall remain open for 20 Business Days following its
commencement.
8. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, it need not
exchange or register the transfer of any Notes for a period of 15 days before a
selection of Notes to be redeemed or during the period between a Record Date and
the next succeeding Interest Payment Date.
9. Persons Deemed Owners. The registered Holder of a Note may be treated
as its owner for all purposes.
10. Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture, the Notes or the Guarantees may be amended or supplemented with the
consent of the Holders of a majority in principal amount of the Notes then
outstanding (including, without limitation, consents obtained in connection with
a purchase of, or tender offer or exchange offer for, the Notes), and, subject
to Sections 6.4 and 6.7 of the Indenture, any existing Default or Event of
Defaults (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 Notes or the Guarantees may be waived
with the consent of the Holders of a majority in principal amount of the then
outstanding Notes (including consents obtained in connection with a purchase of,
or tender offer or exchange offer for, the Notes). Without the consent of any
Holder of a Note, the Indenture, the Notes or the Guarantees may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's obligations to Holders of the Notes
in case of a merger or consolidation, to provide for additional Guarantees as
set forth in the Indenture or for the release or
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assumption of Guarantees in compliance with the Indenture, to make any change
that would provide any additional rights or benefits to the Holders of the Notes
or that does not adversely affect the rights under the Indenture of any such
Holder, to comply with the provisions of the Depositary, Euroclear or
Clearstream or the Trustee with respect to the provisions of the Indenture or
the Notes relating to transfers and exchanges of Notes or beneficial interests
therein, to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the TIA or to provide for the
issuance of additional Notes in accordance with the limitations set forth in the
Indenture.
11. Defaults and Remedies. The Indenture provides that each of the
following constitutes an Event of Default:
(1) the Company's failure to pay any installment of interest (or
Liquidated Damages, if any) on the Notes as and when the same becomes due and
payable and the continuance of any such failure for 30 days,
(2) the Company's failure to pay all or any part of the principal,
or premium, if any, on the Notes when and as the same becomes due and payable at
maturity, redemption, by acceleration or otherwise, including, without
limitation, payment of the Change of Control Purchase Price, the Asset Sale
Offer Price or the Excess Cash Flow Purchase Price, on Notes validly tendered
and not properly withdrawn pursuant to a Change of Control Offer, Asset Sale
Offer or Excess Cash Flow Offer, as applicable,
(3) the Company's failure or the failure by the Parent or any
Subsidiary of the Company or the Parent to observe or perform any other covenant
or agreement contained in the Notes or the Indenture and, except for the
provisions under Sections 4.14, 4.15, 5.1 and 5.3 of the Indenture, the
continuance of such failure for a period of 30 days after written notice is
given to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in aggregate principal amount of the Notes outstanding,
(4) the Company's failure to report the occurrence of a Default
under any covenant contained in the Notes or the Indenture and the continuance
of such failure for a period of 30 days after management of the Company or the
Parent, exercising reasonable diligence, becomes aware thereof,
(5) a court having jurisdiction in the premises enters a decree or
order for (a) relief in respect of the Company, the Parent or any Significant
Subsidiary of the Company or the Parent in an involuntary case under any
applicable Bankruptcy Law now or hereafter in effect, (b) appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or any Significant
A-10
Subsidiary or for all or substantially all of the property and assets of the
Company or any Significant Subsidiary or (c) the winding up or liquidation of
the affairs of the Company or any Significant Subsidiary and, in each case, such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days;
(6) the Company or the Parent or any Significant Subsidiary of the
Company or the Parent (a) commences a voluntary case under any applicable
Bankruptcy Law now or hereafter in effect, or consents to the entry of an order
for relief in an involuntary case under any such law, (b) consents to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or the
Parent or any Significant Subsidiary of the Company or the Parent or for all or
substantially all of the property and assets of the Company or any Significant
Subsidiary or (c) effects any general assignment for the benefit of creditors;
(7) a default in the Indebtedness of the Company or the Parent or
the Indebtedness of any Subsidiary of the Company or the Parent with an
aggregate amount outstanding in excess of $5,000,000 (a) resulting from the
failure to pay principal at maturity or (b) as a result of which the maturity of
such Indebtedness has been accelerated prior to its stated maturity,
(8) final unsatisfied judgments not covered by insurance aggregating
in excess of $15,000,000, at any one time rendered against the Company, the
Parent or any Subsidiary of the Company or the Parent and not stayed, bonded or
discharged within 60 days,
(9) the Guarantee of Parent ceases to be in full force and effect or
becomes unenforceable or invalid or is declared null and void (other than in
accordance with the terms of the Guarantee and this Indenture) or Parent denies
or disaffirms its Obligations under its Guarantee; and
(10) any Guarantee of a Guarantor that is a Significant Subsidiary
ceases to be in full force and effect or becomes unenforceable or invalid or is
declared null and void (other than in accordance with the terms of the Guarantee
and the Indenture) or any Guarantor (other than Parent) denies or disaffirms its
Obligations under its Guarantee.
If a Default or Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to Holders of Notes a notice in
the manner and to the extent provided by Section 313(c) of the TIA of the
Default or Event of Default within 90 days after it occurs.
1. Subordination. The Notes and the Guarantees are subordinated in right
of payment, to the extent and in the manner provided in Section 10.7 and Article
XI of
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the Indenture, to the prior payment in full in cash of all Senior Debt. The
Company and the Guarantors agree, and each Holder by accepting a Note consents
and agrees, to the subordination provided in the Indenture and authorizes the
Trustee to give it effect.
13. Trustee Dealings with Company. The Trustee, in its individual or any
other capacity, may become the owner of pledgee of Notes and may otherwise deal
with the Company or any Affiliate of the Company with the same rights it would
have if it were not Trustee.
14. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator or stockholder (direct or indirect) of the
Company or the Guarantors (or any such successor entity), as such, shall have
any liability for any Obligations of the Company or the Guarantors under the
Notes, the Guarantees or the Indenture or for any claim based on, in respect of,
or by reason of, such Obligations or their creation, except in their capacity as
an obligor or Guarantor of the Notes in accordance with the Indenture. 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.
15. Authentication. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
16. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. Additional Rights of Holders of Transfer Restricted Notes.7 In
addition to the rights provided to Holders of Notes under the Indenture, Holders
of Transfer Restricted Notes shall have all the rights set forth in the
Registration Rights Agreement dated as of the date of the Indenture, among the
Company, the Guarantors parties thereto and the Initial Purchaser (the
"Registration Rights Agreement").
18. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP and/or ISIN numbers to be printed on the Notes and the Trustee shall use
CUSIP and/or ISIN 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
----------------
(7) To be included only on Transfer Restricted Notes.
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or as contained in any notice of redemption and reliance may be placed only on
the other identification numbers placed thereon, and any such redemption shall
not be affected by any defect in or omission of such numbers.
19. Governing Law. THE INDENTURE, THE NOTES AND THE GUARANTEES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW AND NEW YORK CIVIL LAWS AND RULES 327(b).
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture [and/or the Registration Rights
Agreement](8). Requests may be made to:
WH Acquisition Corp.
c/o Whitney & Co., LLC
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxx or
Xxxxx X. Xxxxxx, Esq.
(000) 000-0000
------------------
(8) To be included only on Transfer Restricted Notes.
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (We) assign and transfer
this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
________________________________________________________________________________
Date: __________________________
Your Signature:_________________________________________________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*
________________________________________________________________________________
*NOTICE: The Signature must be guaranteed by an Institution which is a member of
one of the following recognized signature Guarantee Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange
Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP); or
(iv) in such other guarantee program acceptable to the Trustee.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.13, Section 4.14 or Section 4.15 of the Indenture, check the box
below:
[ ] Section 4.13 Section 4.14 Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.13, Section 4.14 or Section 4.15 of the Indenture,
state the amount you elect to have purchased (in denominations of $1,000 only,
except if you have elected to have all of your Notes purchased): $___________
Date: ______________________ Your Signature:___________________________________
(Sign exactly as your name appears on the Note)
Social Security or Tax Identification No.:______________
Signature Guarantee*
________________________________________________________________________________
*NOTICE: The Signature must be guaranteed by an Institution which is a member of
one of the following recognized signature Guarantee Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange
Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP);
A-15
or (iv) in such other guarantee program acceptable to the Trustee.
A-16
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE(9)
The following exchanges of an interest in this Global Note for an
interest in another Global Notes or for a Definitive Note, or
exchanges of an interest in another Global Note or Definitive Note
for an interest in this Global Note, have been made:
Amount of Amount of Principal Amount Signature
Decrease Increase of this Global of Authorized
in Principal in Principal Note Following Officer of
Amount of this Amount of this Such Decrease Trustee or
Date of Exchange Global Note Global Note (or Increase) Note Custodian
---------------- -------------- -------------- ---------------- --------------
-------------------
(9) This should be included only if the Note is issued in global form.
A-17
GUARANTEE
The Guarantors listed below (hereinafter referred to as the
"Guarantors," which term includes any successors or assigns under the Indenture,
dated June 27, 2002, among the Guarantors party thereto, the Company (as defined
below) and The Bank of New York, as trustee, (the "Indenture") and any
additional Guarantors), have irrevocably and unconditionally guaranteed on an
unsecured senior subordinated basis the Guarantee Obligations (as defined in
Section 10.1 of the Indenture), which include (i) the due and punctual payment
of the principal of, premium, if any, and interest (and Liquidated Damages, if
any) on the 11 3/4% Senior Subordinated Notes due 2010 (the "Notes") of WH
Acquisition Corp., a Nevada corporation (the "Company"), whether at maturity, by
acceleration, call for redemption, upon a Change of Control Offer, upon an Asset
Sale Offer or otherwise, and the prompt payment of interest on the overdue
principal and premium, if any, and (to the extent permitted by law) interest on
any interest on the Notes, and all other payment Obligations of the Company, to
the Holders or the Trustee all in accordance with the terms set forth in Article
X of the Indenture, and (ii) in case of any extension of time of payment or
renewal of any Notes or any such other Obligations, the prompt payment in full
of such Notes or other Obligations when due in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration, call for
redemption, upon a Change of Control Offer, upon an Asset Sale Offer, or
otherwise, subject in the case of clauses (i) and (ii) above, to the limitations
set forth in Section 10.5 of the Indenture.
The obligations of each Guarantor to the Holders and to the Trustee
pursuant to this Guarantee and the Indenture are expressly set forth in Article
X of the Indenture and reference is hereby made to such Indenture for the
precise terms of this Guarantee.
The obligations of each Guarantor to the Holders and to the Trustee
pursuant to this Guarantee and the Indenture are expressly subordinated to
Senior Debt of the Guarantor as set forth in Section 10.7 of the Indenture and
reference is hereby made to such Section for the precise terms of such
subordination.
No past, present or future director, officer, employee, incorporator
or stockholder (direct or indirect) of the Guarantors (or any such successor
entity), as such, shall have any liability for any obligations of the Guarantors
under this Guarantee or the Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation, except in their capacity as
an obligor or Guarantor of the Notes in accordance with the Indenture.
This is a continuing Guarantee and shall remain in full force and
effect and shall be binding upon each Guarantor and its successors and assigns
until full and final
A-18
payment of all of the Company's obligations under the Notes and Indenture or
until released or legally defeased in accordance with the Indenture 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 herein conferred upon that party shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions hereof. This is a Guarantee of payment and
performance and not of collectibility.
This Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Note upon which this Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
The obligations of each Guarantor under this Guarantee shall be
limited to the extent necessary to insure that it does not constitute a
fraudulent conveyance under applicable law.
THE TERMS OF ARTICLE X AND XI OF THE INDENTURE ARE INCORPORATED
HEREIN BY REFERENCE.
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
A-19
IN WITNESS WHEREOF, each of the Guarantors has caused this
instrument to be duly executed.
Dated: June [ ], 2002
WH INTERMEDIATE HOLDINGS, LTD.
By: /s/
--------------------------
Name:
Title:
WH LUXEMBOURG HOLDINGS SaRL
By: /s/
--------------------------
Name:
Title:
WH LUXEMBOURG INTERMEDIATE
HOLDINGS SaRL
By: /s/
--------------------------
Name:
Title:
WH LUXEMBOURG CM SaRL
By: /s/
--------------------------
Name:
Title:
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
WH Acquisition Corp.
c/o Whitney & Co., LLC
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
The Bank of New York
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 0000
Re: 11 3/4% Senior Subordinated Notes due 2010
Dear Sirs:
Reference is hereby made to the Indenture, dated as of June 27, 2002 (the
"Indenture"), among WH Acquisition Corp., as issuer (the "Company"), the
Guarantors party thereto and The Bank of New York, as trustee. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Indenture. ________________________, (the "Transferor") owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in
the principal amount of $___________ in such Note[s] or interests (the
"Transfer"), to _______________________ (the "Transferee"), as further specified
in Annex A hereto. In connection with the Transfer, the Transferor hereby
certifies that:
[CHECK ALL THAT APPLY]
[ ] 1. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any State of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture,
the transferred beneficial interest or Definitive Note shall be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the 144A Global Note and/or the Definitive Note and in the Indenture and the
Securities Act.
[ ] 2. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act, (iii) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act and (iv) if the
proposed transfer is being made prior to the expiration of the Distribution
Compliance Period, the transfer is not being made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial Purchaser) and the
interest transferred shall be held immediately thereafter through Euroclear or
Clearstream. Upon consummation of the proposed transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
shall be subject to the restrictions on Transfer enumerated in the Private
Placement Legend printed on the Regulation S Global Note and/or the Definitive
Note and in the Indenture and the Securities Act.
[ ] 3. CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A DEFINITIVE NOTE
PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR
REGULATION S. The Transfer is being effected in compliance with the transfer
restrictions applicable to beneficial interests in Restricted Global Notes and
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any State of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
[ ] (a) Such Transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act; or
[ ] (b) Such Transfer is being effected to the Company or a Subsidiary
thereof; or
[ ] (c) Such Transfer is being effected pursuant to an effective registration
statement under the Securities Act and in compliance with the prospectus
delivery requirements of the Securities Act; or
[ ] (d) such Transfer is being effected to an Institutional Accredited
Investor and
pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 or Rule 904, and the
Transferor hereby further certifies that it has not engaged in any general
solicitation within the meaning of Regulation D under the Securities Act
and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Note or Restricted Definitive
Notes and the requirements of the exemption claimed, which certification
is supported by (1) a certificate executed by the Transferee in a form of
Exhibit D to the Indenture and (2) if such Transfer is in respect of a
principal amount of Notes at the time of transfer of less than $250,000,
an Opinion of Counsel provided by the Transferor or the Transferee (a copy
of which the Transferor has attached to this certification and provided to
the Company, which has confirmed its acceptability), to the effect that
such Transfer is in compliance with the Securities Act and with any
applicable blue sky securities laws of any state of the United States.
Upon consummation of the proposed transfer in accordance with the terms of
the Indenture, the Definitive Note shall be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the
Definitive Notes and in the Indenture and the Securities Act.
[ ] 4. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
[ ] (a) CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being
effected pursuant to and in accordance with Rule 144 under the Securities Act
and in compliance with the transfer restrictions contained in the Indenture and
any applicable blue sky securities laws of any State of the United States and
(ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture and the Securities Act.
[ ] (b) CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any State of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture and the
B-3
Securities Act.
[ ] (c) CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer is
being effected pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act other than Rule 144, Rule 903 or
Rule 904 and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any State of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will not be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.
B-4
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company.
--------------------------------- Dated:
[Insert Name of Transferor] ----------------------------
By:
------------------------------------
Name:
Title:
B-5
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
[ ] (a) a beneficial interest in the:
[ ] (i) 144A Global Note (CUSIP _______), or
[ ] (ii) Regulation S Global Note (CUSIP ______; or ISIN _____), or
[ ] (b) a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
[ ] (a) a beneficial interest in the:
[ ] (i) 144A Global Note (CUSIP _______), or
[ ] (ii) Regulation S Global Note (CUSIP _______; or ISIN _____), or
[ ] (iii) Unrestricted Global Note (CUSIP _______); or
[ ] (b) a Restricted Definitive Note; or
[ ] (c) an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-6
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
WH Acquisition Corp.
c/o Whitney & Co., LLC
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
The Bank of New York
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 0000
Re: 11 3/4% Senior Subordinated Notes due 2010
Dear Sirs:
Reference is hereby made to the Indenture, dated as of June 27, 2002 (the
"Indenture"), between WH Acquisition Corp., as issuer (the "Company"), the
Guarantors party thereto and The Bank of New York, as trustee. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Indenture.
______________________, (the "Owner") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount of
$________________ in such Note[s] or interests (the "Exchange"). In connection
with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN AN UNRESTRICTED GLOBAL NOTE.
[ ] (a) CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL
NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with
the Exchange of the Owner's beneficial interest in a Restricted Global Note for
a beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Global
Notes and pursuant to and in accordance with the United States Securities Act of
1933, as amended (the "Securities Act"), (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are
C-1
not required in order to maintain compliance with the Securities Act and (iv)
the beneficial interest in an Unrestricted Global Note is being acquired in
compliance with any applicable blue sky securities laws of any State of the
United States.
[ ] (b) CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL
NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the
Owner's beneficial interest in a Restricted Global Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Definitive Note is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any State of the United States.
[ ] (c) CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Owner's Exchange
of a Restricted Definitive Note for a beneficial interest in an Unrestricted
Global Note, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any State
of the United States.
[ ] (d) CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO UNRESTRICTED
DEFINITIVE NOTE. In connection with the Owner's Exchange of a Restricted
Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies
(i) the Unrestricted Definitive Note is being acquired for the Owner's own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any State of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED
GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES.
C-2
[ ] (a) CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL
NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the
Owner's beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Note is being acquired for the Owner's own account
without transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Restricted Definitive Note issued will continue
to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the Indenture
and the Securities Act.
[ ] (b) CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL
INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange of the
Owner's Restricted Definitive Note for a beneficial interest in the: [CHECK ONE]
144A Global Note or Regulation S Global Note with an equal principal amount, the
Owner hereby certifies (i) the beneficial interest is being acquired for the
Owner's own account without transfer and (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any State of the
United States. Upon consummation of the proposed Exchange in accordance with the
terms of the Indenture, the beneficial interest issued will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the relevant Restricted Global Note and in the Indenture and the Securities Act.
C-3
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
------------------------------------
[Insert Name of Owner]
By:
--------------------------------
Name:
Title:
Dated:
------------------------
C-4
EXHIBIT D
FORM OF CERTIFICATE FROM ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
WH Acquisition Corp.
c/o Whitney & Co., LLC
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
The Bank of New York
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 0000
Re: 11 3/4% Senior Subordinated Notes due 2010
Dear Sirs:
Reference is hereby made to the Indenture, dated as of June 27, 2002 (the
"Indenture"), between WH Acquisition Corp., as issuer (the "Company"), the
Guarantors party thereto and The Bank of New York, as trustee. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Indenture.
In connection with our proposed purchase of $___________________ aggregate
principal amount of: (a) a beneficial interest in a Global Note, or (b) a
Definitive Note, we confirm that:
1. We understand that any subsequent transfer of the Notes or any interest
therein is subject to certain restrictions and conditions set forth in the
Indenture and the undersigned agrees to be bound by, and not to resell, pledge
or otherwise transfer the Notes or any interest therein except in compliance
with, such restrictions and conditions and the United States Securities Act of
1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (i) to the Company, (ii) in the United States to a person
whom the seller reasonably believes is a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) in a transaction meeting the
requirements of Rule 144A, (iii) outside the United States in an offshore
transaction in
D-1
accordance with Rule 904 under the Securities Act, (iv) pursuant to an exemption
from registration under the Securities Act provided by Rule 144 thereunder (if
available) or (v) pursuant to an effective registration statement under the
Securities Act, in each of cases (i) through (v) in accordance with any
applicable securities laws of any state of the United States, and we further
agree to provide to any person purchasing the Definitive Note from us in a
transaction meeting the requirements of clauses (i) through (v) of this
paragraph a notice advising such purchaser that resales thereof are restricted
as stated herein.
3. We understand that, on any proposed resale of the Notes or beneficial
interest therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect. We further understand that any subsequent
transfer by us of the Notes or beneficial interest therein acquired by us must
be effected through the Initial Purchaser.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased by
us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
D-2
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Dated:
------------------------------------- -----------------------
[Insert Name of Accredited Investor]
By: ----------------------------------
Name:
Title:
D-3
EXHIBIT E
FORM OF SUPPLEMENTAL INDENTURE TO BE
DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental Indenture (this "Supplemental Indenture"), dated as of
________, among ___________________ (the "Guaranteeing Subsidiary"), a
subsidiary of WH Acquisition Corp. (or its permitted successor), a Nevada
corporation (the "Company"), the Company and The Bank of New York, as trustee
under the Indenture referred to below (the "Trustee").
W I T N E S S E T H
-------------------
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an indenture (the "Indenture"), dated as of June 27, 2002, providing for the
issuance of 11 3/4% Senior Subordinated Notes due 2010 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which any newly-acquired or created Guarantor shall
unconditionally guarantee all of the Company's obligations under the Notes and
the Indenture on the terms and conditions set forth herein (the "Subsidiary
Guarantee"); and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiary irrevocably and
unconditionally guarantees the Guarantee Obligations, which include (i) the due
and punctual payment of the principal of, premium, if any, and interest (and
Liquidated Damages, if any) on the Notes, whether at maturity, by acceleration,
call for redemption, upon a Change of Control Offer, upon an Asset Sale Offer or
otherwise, the due and punctual payment of interest on the overdue principal and
premium, if any, and (to the
E-1
extent permitted by law) interest on any interest on the Notes, and payment of
expenses, and the due and punctual performance of all other obligations of the
Company, to the Holders or the Trustee all in accordance with the terms set
forth in Article X of the Indenture, and (ii) in case of any extension of time
of payment or renewal of any Notes or any such other obligations, that the same
will be promptly paid in full when due or performed in accordance with the terms
of the extension or renewal, whether at stated maturity, by acceleration, call
for redemption, upon a Change of Control Offer, upon an Asset Sale Offer or
otherwise.
The obligations of Guaranteeing Subsidiary to the Holders and to the
Trustee pursuant to this Subsidiary Guarantee and the Indenture are expressly
set forth in Article X of the Indenture and reference is hereby made to such
Indenture for the precise terms of this Subsidiary Guarantee.
No past, present or future director, officer, employee, incorporator or
stockholder (direct or indirect) of the Guaranteeing Subsidiary (or any such
successor entity), as such, shall have any liability for any obligations of the
Guaranteeing Subsidiary under this Subsidiary Guarantee or the Indenture or for
any claim based on, in respect of, or by reason of, such obligations or their
creation, except in their capacity as an obligor or Guarantor of the Notes in
accordance with the Indenture.
This is a continuing Guarantee and shall remain in full force and effect
and shall be binding upon the Guaranteeing Subsidiary and its successors and
assigns until full and final payment of all of the Company's obligations under
the Notes and Indenture or until released in accordance with the Indenture 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 herein conferred upon that party shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions hereof. This is a Guarantee of payment and
performance and not of collectibility.
The obligations of the Guaranteeing Subsidiary under its Subsidiary
Guarantee shall be limited to the extent necessary to insure that it does not
constitute a fraudulent conveyance under applicable law.
THE TERMS OF ARTICLE X OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
3. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE, INCLUDING, WITHOUT
LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW
AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(b).
4. Counterparts. The parties may sign any number of copies of this
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Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
5. Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
THE COMPANY:
WH ACQUISITION CORP.
By: /s/
---------------------------------
Name:
Title:
GUARANTEEING SUBSIDIARY:
NAME:
By: /s/
---------------------------------
Name:
Title:
THE TRUSTEE:
THE BANK OF NEW YORK
By: /s/
---------------------------------
Name:
Title:
EXHIBIT F
FORM OF SECURITY AGREEMENT
[ATTACHED]
F-1
EXHIBIT G
FORM OF SUPPORT AGREEMENT
TO BE DELIVERED BY WHITNEY V, L.P
[ATTACHED]
G-1
EXHIBIT H
FORM OF SUPPORT AGREEMENT
TO BE DELIVERED BY CCG INVESTMENTS (BVI), L.P.
[ATTACHED]
H-1
EXHIBIT I
FORM OF MONITORING FEES AGREEMENT AMONG HOLDINGS,
THE COMPANY AND WHITNEY & CO., LLC
[ATTACHED]
I-1
EXHIBIT J
FORM OF MONITORING FEES AGREEMENT AMONG HOLDINGS,
THE COMPANY AND GGC ADMINISTRATION, LLC
[ATTACHED]
J-1