Exhibit 4.1
the SUBSIDIARY GUARANTORS named herein,
as Subsidiary Guarantors
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
6.75% Senior Notes Due 2019
Dated as of April 6, 2011
CROSS-REFERENCE TABLE
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TIA |
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Indenture |
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Section |
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Section |
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310(a)(1) |
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7.10 |
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(a)(2) |
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7.10 |
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(a)(3) |
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N.A. |
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(a)(4) |
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N.A. |
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(a)(5) |
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7.10 |
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(b) |
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7.08; 7.10 |
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(b)(1) |
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7.10 |
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(c) |
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N.A. |
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311(a) |
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7.11 |
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(b) |
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7.11 |
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312(a) |
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2.05 |
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(b) |
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2.05 |
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(c) |
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2.05 |
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313(a) |
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7.06 |
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(b)(1) |
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7.06 |
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(b)(2) |
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7.06; 7.07 |
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(c) |
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7.05; 7.06; 11.03 |
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(d) |
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7.06 |
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314(a) |
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4.07; 4.09; 11.03 |
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(b) |
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N.A. |
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(c)(1) |
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4.07; 11.01 |
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(c)(2) |
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11.01 |
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(c)(3 |
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4.07; 11.01 |
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(d) |
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N.A. |
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(e) |
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11.01 |
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(f) |
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N.A. |
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315(a) |
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7.01 |
(b) |
(b) |
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7.05; 11.03 |
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(c) |
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7.01 |
(a) |
(d) |
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7.01 |
(c) |
(e) |
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6.11 |
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316(a)(last sentence) |
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2.09 |
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(a)(1)(A) |
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6.05 |
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(a)(1)(B) |
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6.04 |
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(a)(2) |
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N.A. |
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(b) |
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6.07; 9.04 |
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(c) |
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9.04 |
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317(a)(1) |
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6.08 |
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(a)(2) |
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6.09 |
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(b) |
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2.04 |
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318(a) |
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11.05 |
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(c) |
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11.05 |
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“N.A.” means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a part of the
Indenture.
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
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Page |
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SECTION 1.01. Definitions |
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1 |
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SECTION 1.02. Incorporation by Reference of TIA |
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27 |
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SECTION 1.03. Rules of Construction |
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27 |
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ARTICLE II
THE NOTES
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SECTION 2.01. Form and Dating |
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28 |
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SECTION 2.02. Execution and Authentication |
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28 |
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SECTION 2.03. Registrar and Paying Agent |
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29 |
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SECTION 2.04. Paying Agent to Hold Money in Trust |
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29 |
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SECTION 2.05. Holder Lists |
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29 |
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SECTION 2.06. Transfer and Exchange |
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30 |
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SECTION 2.07. Replacement Notes |
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30 |
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SECTION 2.08. Outstanding Notes |
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31 |
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SECTION 2.09. Treasury Notes |
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31 |
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SECTION 2.10. Temporary Notes |
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31 |
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SECTION 2.11. Cancellation |
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32 |
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SECTION 2.12. CUSIP or ISIN Numbers |
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32 |
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SECTION 2.13. Additional Notes |
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32 |
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SECTION 2.14. Deposit of Moneys |
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32 |
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SECTION 2.15. Book-Entry Provisions for Global Notes |
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32 |
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SECTION 2.16. Special Transfer Provisions |
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34 |
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ARTICLE III
REDEMPTION
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SECTION 3.01. Notices to Trustee |
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36 |
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SECTION 3.02. Selection of Notes to be Redeemed |
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36 |
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SECTION 3.03. Notice of Redemption |
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36 |
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SECTION 3.04. Effect of Notice Upon Redemption |
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37 |
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SECTION 3.05. Deposit of Redemption Price |
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37 |
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SECTION 3.06. Notes Redeemed in Part |
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38 |
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SECTION 3.07. Optional Redemption for the Notes |
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38 |
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SECTION 3.08. Mandatory Redemption |
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39 |
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ARTICLE IV
COVENANTS
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SECTION 4.01. Payment of Notes |
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39 |
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-i-
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Page |
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SECTION 4.02. Maintenance of Office or Agency |
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39 |
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SECTION 4.03. Limitation on Incurrence of Additional Indebtedness |
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40 |
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SECTION 4.04. Limitation on Restricted Payments |
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43 |
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SECTION 4.05. Limitation on Asset Sales |
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46 |
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SECTION 4.06. Corporate Existence |
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49 |
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SECTION 4.07. Reports to Trustee |
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49 |
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SECTION 4.08. Compliance with Laws |
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49 |
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SECTION 4.09. Reports to Holders |
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50 |
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SECTION 4.10. Waiver of Stay, Extension or Usury Laws |
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50 |
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SECTION 4.11. Limitation on Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries |
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50 |
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SECTION 4.12. Limitation on Issuances of Capital Stock of Restricted Subsidiaries |
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52 |
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SECTION 4.13. Limitation on Liens |
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52 |
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SECTION 4.14. Limitation on Transactions with Affiliates |
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53 |
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SECTION 4.15. Future Subsidiary Guarantors |
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55 |
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SECTION 4.16. Limitation on Designations of Unrestricted Subsidiaries |
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56 |
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SECTION 4.17. Offer to Purchase upon Change of Control |
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57 |
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SECTION 4.18. Covenant Suspension |
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58 |
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ARTICLE V
SUCCESSOR CORPORATION
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SECTION 5.01. Merger, Consolidation and Sale of Assets |
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59 |
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SECTION 5.02. Successor Corporation Substituted |
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61 |
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ARTICLE VI
DEFAULT AND REMEDIES
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SECTION 6.01. Events of Default |
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61 |
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SECTION 6.02. Acceleration |
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63 |
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SECTION 6.03. Other Remedies |
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63 |
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SECTION 6.04. Waiver of Past Defaults |
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63 |
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SECTION 6.05. Control by Majority |
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64 |
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SECTION 6.06. Limitation on Suits |
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64 |
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SECTION 6.07. Rights of Holders to Receive Payment |
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64 |
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SECTION 6.08. Collection Suit by Trustee |
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64 |
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SECTION 6.09. Trustee May File Proofs of Claim |
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65 |
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SECTION 6.10. Priorities |
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65 |
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SECTION 6.11. Payment of Interest; Interest Rights Preserved |
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65 |
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SECTION 6.12. Undertaking for Costs |
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66 |
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ARTICLE VII
TRUSTEE
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SECTION 7.01. Duties of Trustee |
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67 |
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SECTION 7.02. Rights of Trustee |
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68 |
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SECTION 7.03. Individual Rights of Trustee |
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69 |
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-ii-
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Page |
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SECTION 7.04. Trustee’s Disclaimer |
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69 |
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SECTION 7.05. Notice of Default |
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70 |
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SECTION 7.06. Reports by Trustee to Holders |
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70 |
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SECTION 7.07. Compensation and Indemnity |
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70 |
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SECTION 7.08. Replacement of Trustee |
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71 |
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SECTION 7.09. Successor Trustee by Merger, Etc. |
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72 |
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SECTION 7.10. Eligibility; Disqualification |
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72 |
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SECTION 7.11. Preferential Collection of Claims Against Company |
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72 |
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ARTICLE VIII
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SECTION 8.01. Legal Defeasance and Covenant Defeasance |
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73 |
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SECTION 8.02. Satisfaction and Discharge |
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75 |
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SECTION 8.03. Survival of Certain Obligations |
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76 |
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SECTION 8.04. Acknowledgment of Discharge by Trustee |
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76 |
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SECTION 8.05. Application of Trust Assets |
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76 |
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SECTION 8.06. Repayment to the Company or Subsidiary Guarantors; Unclaimed Money |
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76 |
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SECTION 8.07. Reinstatement |
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77 |
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ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
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SECTION 9.01. Without Consent of Holders of Notes |
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77 |
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SECTION 9.02. With Consent of Holders of Notes |
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78 |
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SECTION 9.03. Compliance with Trust Indenture Act |
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79 |
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SECTION 9.04. Revocation and Effect of Consents |
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79 |
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SECTION 9.05. Notation on or Exchange of Notes |
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80 |
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SECTION 9.06. Trustee to Sign Amendments |
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80 |
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ARTICLE X
GUARANTEE
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SECTION 10.01. Note Guarantees |
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80 |
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SECTION 10.02. Limitation on Liability |
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82 |
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SECTION 10.03. Successors and Assigns |
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82 |
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SECTION 10.04. No Waiver |
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82 |
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SECTION 10.05. Release of Subsidiary Guarantor |
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82 |
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SECTION 10.06. Subsidiary Guarantors May Consolidate, Etc., on Certain Terms |
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83 |
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SECTION 10.07. Contribution |
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83 |
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ARTICLE XI
MISCELLANEOUS
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SECTION 11.01. Compliance Certificates and Opinions |
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84 |
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-iii-
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Page |
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SECTION 11.02. Acts of Securityholders |
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84 |
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SECTION 11.03. Notices, etc., to Trustee and Company |
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85 |
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SECTION 11.04. Notices to Securityholders; Waiver |
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86 |
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SECTION 11.05. Conflict with Trust Indenture Act |
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86 |
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SECTION 11.06. Effect of Headings and Table of Contents |
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86 |
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SECTION 11.07. Successors and Assigns |
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87 |
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SECTION 11.08. Separability Clause |
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87 |
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87 |
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SECTION 11.10. Governing Law; Waiver of Jury Trial |
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87 |
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SECTION 11.11. Counterparts |
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87 |
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SECTION 11.12. U.S.A. Patriot Act |
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87 |
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SECTION 11.13. Force Majeure |
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87 |
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EXHIBITS
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Exhibit A —
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Form of Note |
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Exhibit B —
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Form of Legend for Rule 144A Notes and Other Notes That Are Restricted Notes |
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Exhibit C —
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Form of Legend for Regulation S Note |
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Exhibit D —
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Form of Legend for Global Note |
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Exhibit E —
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Form of Certificate To Be Delivered in Connection with Transfers to Non-QIB Accredited Investors |
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Exhibit F —
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Form of Certificate To Be Delivered in Connection with Transfers Pursuant to Regulation S |
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Exhibit G —
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Notation of Guarantee |
Note: This Table of Contents shall not, for any purpose, be deemed to be a part of the
Indenture.
-iv-
INDENTURE (this “
Indenture”) dated as of April 6, 2011, by and among
Visteon
Corporation, a Delaware corporation (the “
Company”), each of the Subsidiary Guarantors
named herein and The Bank of
New York Mellon Trust Company, N.A., a national banking association,
as trustee (the “
Trustee”).
Recitals of the Company
The Company desires to execute this Indenture to provide for the issuance and to establish the
form of its notes designated as its 6.75% Senior Notes due 2019 issued on the date hereof (the
“Initial Notes”), in an initial aggregate principal amount of $500,000,000;
The Company has requested that the Trustee execute and deliver this Indenture;
This Indenture is subject to the provisions of the Trust Indenture Act that are deemed to be
incorporated into this Indenture and shall, to the extent applicable, be governed by such
provisions;
All necessary acts and things have been done to make (i) the Initial Notes, when duly issued
and executed by the Company and authenticated and delivered hereunder, the legal, valid and binding
obligations of the Company, (ii) the Exchange Securities issued in an exchange offer for any
Initial Notes, if and when issued and executed by the Company and authenticated and delivered as
required by the Registration Rights Agreement, the legal, valid and binding obligations of the
Company, (iii) the Note Guarantees, upon execution and delivery of this Indenture, the legal, valid
and binding obligations of each Subsidiary Guarantor and (iv) this Indenture a legal, valid and
binding agreement of the Company and the Subsidiary Guarantors in accordance with the terms of this
Indenture; and
The Company has received good and valuable consideration for the execution and delivery of
this Indenture, and the Company will derive substantial direct and indirect benefits from the
issuance of the Notes.
Agreements of the Parties
To set forth or to provide for the establishment of the terms and conditions upon which the
Notes are and are to be authenticated, issued and delivered, and in consideration of the premises
and the purchase of Notes by the Holders thereof, it is mutually agreed as follows, for the equal
and proportionate benefit of all Holders of the Notes:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
“Acquired Indebtedness” means Indebtedness of a Person or any of its Subsidiaries
existing at the time such Person becomes a Restricted Subsidiary or at the time it merges or
consolidates with the Company or any of the Restricted Subsidiaries or assumed by the Company or
any Restricted Subsidiary in connection with the acquisition of assets from such Person and in each
case not Incurred by such Person in connection with, or in anticipation or contemplation of, such
Person becoming a Restricted Subsidiary or such acquisition, merger or consolidation.
“Additional Interest” means any additional interest pursuant to Section 5 of the
Registration Rights Agreement.
“Additional Notes” means, subject to the Company’s compliance with Section 4.08, 6.75%
Senior Notes due 2019 issued from time to time after the Issue Date under the terms of this
Indenture (other than pursuant to Sections 2.06, 2.07, 2.10 or 3.06 of this Indenture).
“Adjusted Treasury Rate” means (1) the yield, under the heading which represents the
average for the immediately preceding week, appearing in the most recently published statistical
release designated “H.15(519)” or any successor publication which is published weekly by the Board
of Governors of the Federal Reserve System and which establishes yields on actively traded United
States Treasury securities adjusted to constant maturity under the caption “Treasury Constant
Maturities,” for the maturity corresponding to the Comparable Treasury Issue for the Notes (if no
maturity is within three months before or after April 15, 2014, yields for the two published
maturities most closely corresponding to the Comparable Treasury Issue for the Notes shall be
determined and the Adjusted Treasury Rate for the Notes shall be interpolated or extrapolated from
such yields on a straight line basis, rounding to the nearest month) or (2) if such release (or any
successor release) is not published during the week preceding the calculation date or does not
contain such yields, the rate per year equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue for the Notes (expressed as a percentage of its principal amount) equal
to the Comparable Treasury Price for such Redemption Date, in each case calculated on the third
Business Day immediately preceding the Redemption Date, in each case of (1) and (2), plus 0.50%.
“Affiliate” means, with respect to any specified Person, any other Person who directly
or indirectly through one or more intermediaries controls, or is controlled by, or is under common
control with, such specified Person. The term “control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative of the foregoing.
“Affiliate Transaction” has the meaning set forth in Section 4.14(a).
“Agent” means any Registrar, Paying Agent or co-Registrar.
“Agent Members” has the meaning set forth in Section 2.15(a).
“Applicable Premium for the Notes” means, with respect to a Note at any Redemption
Date, the greater of (1) 1.00% of the principal amount of such Note and (2) the excess of (A) the
present value at such Redemption Date of (i) the Redemption Price of such Note on April 15, 2014
(such Redemption Price being described in Section 3.07(c) exclusive of any accrued interest), plus
(ii) all required remaining scheduled interest payments due on such Note through April 15, 2014
(but excluding accrued and unpaid interest to the Redemption Date), computed using a discount rate
equal to the Adjusted Treasury Rate, over (B) the principal amount of such note on such Redemption
Date.
“Applicable Procedures” means with respect to any transfer, redemption or exchange of
or for beneficial interests in any Global Note, the rules and procedures of the Depository that
apply to such transfer, redemption or exchange.
“Asset Acquisition” means (1) an Investment by the Company or any Restricted
Subsidiary in any other Person pursuant to which such Person shall become a Restricted Subsidiary,
or shall be merged with or into the Company or any Restricted Subsidiary or (2) the acquisition by
the Company or any Restricted Subsidiary of the assets of any Person (other than a Restricted
Subsidiary) which constitute all or substantially all of the assets of such Person or comprise any
division or line of business of such Person or any other properties or assets of such Person other
than in the ordinary course of business.
-2-
“Asset Sale” means any direct or indirect sale, issuance, conveyance, lease (other
than operating leases entered into in the ordinary course of business), assignment or other
transfer (other than the granting of a Lien in accordance with this Indenture) for value by the
Company or any of the Restricted Subsidiaries (including any Sale and Leaseback Transaction) to any
Person other than the Company or a Restricted Subsidiary of (a) any Capital Stock of any Restricted
Subsidiary; or (b) any other property or assets of the Company or any Restricted Subsidiary other
than in the ordinary course of business; provided, however, that Asset Sales shall
not include:
(1) a transaction or series of related transactions for which the Company or the
Restricted Subsidiaries receive aggregate consideration of less than $15.0 million;
(2) the sale, lease, conveyance, disposition or other transfer of all or substantially
all of the assets of the Company as permitted by Section 4.17 and/or Section 5.01;
(3) any Restricted Payment made in accordance with Section 4.04 or a Permitted
Investment;
(4) sales or contributions of accounts receivable and related assets pursuant to a
Qualified Receivables Transaction made in accordance with Section 4.03;
(5) any Sale and Leaseback Transaction or the issuance of Preferred Stock of a
Restricted Subsidiary permitted by Section 4.03;
(6) any issuance of Capital Stock by a Restricted Subsidiary to the Company or any
other Restricted Subsidiary;
(7) sales or issuance of Capital Stock to directors where required by applicable law or
to satisfy other requirements of applicable law with respect to the ownership of Capital
Stock of Foreign Subsidiaries;
(8) the disposition by the Company or any Restricted Subsidiary in the ordinary course
of business of (i) cash and Cash Equivalents, (ii) inventory and other assets acquired and
held for resale in the ordinary course of business, (iii) damaged, worn out or obsolete
assets or assets that, in the Company’s reasonable judgment, are no longer used or useful in
the business of the Company or its Restricted Subsidiaries, or (iv) rights granted to others
pursuant to leases or licenses, to the extent not materially interfering with the operations
of the Company or its Restricted Subsidiaries;
(9) the sale or discount of accounts receivable arising in the ordinary course of
business in connection with the compromise or collection thereof;
(10) the granting of a Lien in accordance with this Indenture;
(11) any surrender or waiver of contract rights pursuant to a settlement, release,
recovery on or surrender of contract, tort or other claims of any kind;
(12) the sale or transfer of any interest in any joint venture to the extent required
by the terms of customary buy/sell type arrangements entered into in connection with the
formation of such joint venture; or
-3-
(13) any disposition of Capital Stock of a Restricted Subsidiary pursuant to an
agreement or other obligation with or to a Person (other than the Company or a Restricted
Subsidiary) from whom such Restricted Subsidiary was acquired or from whom such Restricted
Subsidiary acquired its business and assets (having been newly formed in connection with
such acquisition), made as part of such acquisition and in each case comprising all or a
portion of the consideration in respect of such sale or acquisition.
“Authentication Order” has the meaning set forth in Section 2.02(d).
“Bankruptcy Law” means Title 11, U.S. Code or any similar Federal, state or foreign
law for the relief of debtors.
“Board of Directors” means, as to any Person, the board of directors of such Person or
any duly authorized committee thereof.
“Board Resolution” means, with respect to any Person, a copy of a resolution certified
by the Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of
Directors of such Person and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
“Business Day” means, each day which is not a Saturday, Sunday or other day on which
banking institutions in the pertinent place or places of payment or the city in which the Corporate
Trust Office is located are authorized or required by law or executive order to be closed.
“Capital Stock” means (1) with respect to any Person that is a corporation, any and
all shares, interests, participations or other equivalents (however designated and whether or not
voting) of corporate stock, including each class of Common Stock and Preferred Stock of such
Person, and (2) with respect to any Person that is not a corporation, any and all partnership or
other equity interests of such Person.
“Capitalized Lease Obligations” 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.
“Cash Equivalents” means
(1) marketable direct obligations issued by, or unconditionally guaranteed by, the
United States Government or issued by any agency thereof and backed by the full faith and
credit of the United States, in each case maturing within one year from the date of
acquisition thereof, or, with respect to any Foreign Subsidiary, an equivalent obligation of
the government of the country in which such Foreign Subsidiary transacts business, in each
case maturing within one year from the date of acquisition and, in each case having, at the
time of acquisition, one of the two highest ratings categories obtainable from either S&P or
Xxxxx’x;
(2) marketable direct obligations issued by any state of the United States of America
or any political subdivision of any such state or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from either S&P or Xxxxx’x;
(3) commercial paper maturing no more than one year from the date of creation thereof
and, at the time of acquisition, having a rating of at least A-2 from S&P or at least P-2 from
-4-
Xxxxx’x, or carrying an equivalent rating by a nationally recognized rating
agency, if both of the two named rating agencies cease publishing ratings of commercial
paper issuers generally;
(4) time deposit accounts, certificates of deposit, euro denominated time deposits,
overnight bank deposits or bankers’ acceptances maturing within one year from the date of
acquisition thereof issued by any lender under a Credit Facility or bank organized under the
laws of the United States of America or any state thereof or the District of Columbia or any
U.S. branch of a foreign bank having at the date of acquisition thereof combined capital and
surplus of not less than $250.0 million, and, with respect to any Foreign Subsidiary, time
deposits, certificates of deposits, overnight bank deposits or bankers acceptances in the
currency of any country in which such Foreign Subsidiary transacts business having
maturities of twelve months or less from the date of acquisition issued by any commercial
bank organized in the United States having capital and surplus in excess of $100.0 million
or, with respect to any Foreign Subsidiary, a commercial bank organized under the laws of
another country in which such Foreign Subsidiary transacts business having total assets in
excess of $100.0 million (or its foreign currency equivalent);
(5) securities with maturities of twelve months or less from the date of acquisition
backed by standby letters of credit issued by any lender under a Credit Facility or any
commercial bank satisfying the requirements of clause (4) of this definition;
(6) deposits available for withdrawal on demand with commercial banks organized in the
United States having capital and surplus in excess of $100.0 million or, with respect to any
Foreign Subsidiary, a commercial bank organized under the laws of any other country in which
such Foreign Subsidiary transacts business having total assets in excess of $100.0 million
(or its foreign currency equivalent);
(7) repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clause (1) above entered into with any bank meeting the
qualifications specified in clause (4) above;
(8) investments in money market funds which invest substantially all their assets in
securities of the types described in clauses (1) through (7) above; and
(9) investments in money market funds (i) subject to the risk limiting conditions of
Rule 2a-7 or any successor rule of the Commission under the Investment Company Act of 1940,
as amended or (ii) that invest exclusively in assets described in clauses (1) through (8) of
this definition.
“Cash Management Obligations” means, with respect to any Person, all obligations of
such Person in respect of overdrafts and related liabilities owed to any other Person that arise
from treasury, depositary or cash management services, including in connection with any automated
clearing house transfers of funds, or any similar transactions.
“Change of Control” means the occurrence of one or more of the following events:
(1) any sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all or substantially all of the assets of the Company to any Person
or group of related Persons for purposes of Section 13(d) of the Exchange Act (a
“Group”), together with any Affiliates thereof (whether or not otherwise in
compliance with the provisions of this Indenture);
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(2) the approval by the holders of Capital Stock of the Company of any plan or proposal
for the liquidation or dissolution of the Company (whether or not otherwise in compliance
with the provisions of this Indenture);
(3) any Person or Group shall become the beneficial owner, directly or indirectly, of
shares representing more than 50% of the aggregate ordinary voting power represented by the
issued and outstanding Capital Stock of the Company; or
(4) during any period of two consecutive years, individuals who at the beginning of
such 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
stockholders of the Company was approved pursuant to 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) cease for any reason to
constitute a majority of the Board of Directors of the Company then in office.
“Change of Control Offer” has the meaning set forth in Section 4.17(a).
“Change of Control Payment Date” has the meaning set forth in Section 4.17(b)(3).
“Commission” means the Securities and Exchange Commission, as from time to time
constituted, or if at any time after the execution of this Indenture such Commission is not
existing and performing the applicable duties now assigned to it, then the body or bodies
performing such duties at such time.
“Commodity Agreement” means any commodity futures contract, commodity option or other
similar agreement or arrangement entered into by the Company or any Restricted Subsidiary of the
Company designed to protect the Company or any of its Restricted Subsidiaries against fluctuations
in the price of the commodities at the time used in the ordinary course of business of the Company
or any of its Restricted Subsidiaries.
“Common Stock” of any Person means any and all shares, interests or other
participations in, and other equivalents (however designated and whether voting or non-voting) of
such Person’s common stock, whether outstanding on the Issue Date or issued after the Issue Date,
and includes, without limitation, all series and classes of such common stock.
“Company” means the party named as such in this Indenture until a successor replaces
it pursuant to this Indenture and thereafter means such successor.
“Comparable Treasury Issue” means the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the remaining term of the Notes from the
Redemption Date to April 15, 2014, that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of U.S. Dollar denominated
corporate debt securities of a maturity most nearly equal to April 15, 2014.
“Comparable Treasury Price” means, with respect to any Redemption Date, if clause (2)
of the definition of “Adjusted Treasury Rate” is applicable, the average of three, or if not
possible, such lesser number as is obtained by the Company, Reference Treasury Dealer Quotations
for such Redemption Date.
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“Consolidated EBITDA” means, with respect to the Company, for any period, the sum
(without duplication) of:
(1) Consolidated Net Income; and
(2) to the extent Consolidated Net Income has been reduced thereby:
(A) all income taxes of the Company and the Restricted Subsidiaries expensed or
accrued in accordance with GAAP for such period;
(B) Consolidated Fixed Charges;
(C) Consolidated Non-cash Charges; and
(D) any expenses or charges related to any issuance of Capital Stock,
Investment, acquisition or disposition of division or line of business,
recapitalization or the Incurrence or repayment of Indebtedness permitted to be
Incurred by this Indenture (whether or not successful),
less any non-cash items increasing Consolidated Net Income for such period, all as
determined on a consolidated basis for the Company and the Restricted Subsidiaries in accordance
with GAAP.
“Consolidated Fixed Charge Coverage Ratio” means, with respect to the Company, the
ratio of Consolidated EBITDA of the Company during the four full fiscal quarters (the “Four
Quarter Period”) ending on or prior to the date of the transaction (the “Transaction
Date”) to Consolidated Fixed Charges of the Company for such Four Quarter Period. In addition
to and without limitation of the foregoing, for purposes of this definition, Consolidated EBITDA
and Consolidated Fixed Charges shall be calculated after giving effect on a pro forma basis for the
period of such calculation to:
(1) the Incurrence or repayment of any Indebtedness of the Company or any of the
Restricted Subsidiaries (and the application of the proceeds thereof) giving rise to the
need to make such calculation and any Incurrence or repayment of other Indebtedness (and the
application of the proceeds thereof), other than the Incurrence or repayment of Indebtedness
in the ordinary course of business for working capital purposes pursuant to working capital
facilities, occurring during the Four Quarter Period or at any time subsequent to the last
day of the Four Quarter Period and on or prior to the Transaction Date, as if such
Incurrence or repayment, as the case may be (and the application of the proceeds thereof),
occurred on the first day of the Four Quarter Period; and
(2) any Asset Sales or other dispositions or Asset Acquisitions (including, without
limitation, any Asset Acquisition giving rise to the need to make such calculation as a
result of the Company or one of the Restricted Subsidiaries (including any Person who
becomes a Restricted Subsidiary as a result of the Asset Acquisition) Incurring, assuming or
otherwise being liable for Acquired Indebtedness and also including any Consolidated EBITDA
attributable to the assets which are the subject of the Asset Acquisition or Asset Sale or
other disposition during the Four Quarter Period) occurring during the Four Quarter Period
or at any time subsequent to the last day of the Four Quarter Period and on or prior to the
Transaction Date as if such Asset Sale or Asset Acquisition or other disposition (including
the Incurrence, assumption or liability for any such Acquired Indebtedness) occurred on the
first day of the Four Quarter Period.
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For purposes of this definition, whenever pro forma effect is to be given to any event, the
pro forma calculations shall be made in good faith by a responsible financial or accounting officer
of the Company. Any such pro forma calculation may include, among others, adjustments appropriate,
in the reasonable good faith determination of the Company, to reflect operating expense reductions
and other operating improvements or synergies reasonably expected to result from the applicable
event; provided that any pro forma adjustments shall be limited to those that (a) are
reasonably identifiable and factually supportable and (b) have occurred or are reasonably expected
to occur in the next twelve months following the date of such calculation, in the reasonable
judgment of a responsible financial or accounting officer of the Company.
If the Company or any of the Restricted Subsidiaries directly or indirectly guarantees
Indebtedness of a third Person, the preceding sentence shall give effect to the Incurrence of such
guaranteed Indebtedness as if the Company or any Restricted Subsidiary had directly Incurred or
otherwise assumed such guaranteed Indebtedness. Furthermore, in calculating Consolidated Fixed
Charges for purposes of determining the denominator (but not the numerator) of this Consolidated
Fixed Charge Coverage Ratio:
(1) interest on outstanding Indebtedness determined on a fluctuating basis as of the
Transaction Date and which will continue to be so determined thereafter shall be deemed to
have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in
effect on the Transaction Date;
(2) if interest on any Indebtedness actually Incurred on the Transaction Date may
optionally be determined at an interest rate based upon a factor of a prime or similar rate,
a eurocurrency interbank offered rate, or other rates, then the interest rate in effect on
the Transaction Date will be deemed to have been in effect during the Four Quarter Period;
(3) notwithstanding clause (1) above, interest on Indebtedness determined on a
fluctuating basis, to the extent such interest is covered by agreements relating to Interest
Swap Obligations, shall be deemed to accrue at the rate per annum in effect on the
Transaction Date resulting after giving effect to the operation of such agreements on such
date; and
(4) subject to clauses (1), (2) and (3) immediately above, for the purpose of interest
expense of the Company and the Restricted Subsidiaries on a consolidated basis for any
period prior to the expiration of four full fiscal quarters since October 1, 2010, such
interest expense shall be determined for the period commencing on October 1, 2010 and ending
on the last day of the most recently ended fiscal quarter, annualized on a simple arithmetic
basis.
“Consolidated Fixed Charges” means, with respect to the Company for any period, the
sum, without duplication, of:
(1) Consolidated Interest Expense, plus
(2) the product of (x) the amount of all dividend payments on any series of Preferred
Stock of the Company or any Restricted Subsidiary paid, accrued and/or scheduled to be paid
or accrued during such period (other than dividends paid in Qualified Capital Stock of the
Company or paid to the Company or to a Restricted Subsidiary) multiplied by (y) a fraction,
the numerator of which is one and the denominator of which is one minus the then current
effective consolidated federal, state and local income tax rate of the Company, expressed as
a decimal.
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“Consolidated Interest Expense” means, with respect to the Company for any period, the
sum of, without duplication:
(1) the aggregate of the interest expense of the Company and the Restricted
Subsidiaries for such period determined on a consolidated basis in accordance with GAAP,
including, without limitation,
(A) any amortization of debt discount,
(B) the net costs under Interest Swap Obligations,
(C) all capitalized interest, and
(D) the interest portion of any deferred payment obligation;
(2) the interest component of Capitalized Lease Obligations accrued by the Company and
the Restricted Subsidiaries during such period as determined on a consolidated basis in
accordance with GAAP; and
(3) to the extent not included in clause (1) above, net losses relating to sales of
accounts receivable pursuant to a Qualified Receivables Transaction during such period as
determined on a consolidated basis in accordance with GAAP.
“Consolidated Net Income” means, with respect to the Company, for any period, the
aggregate net income (or loss) of the Company and the Restricted Subsidiaries for such period as
determined on a consolidated basis in accordance with GAAP; provided that there shall be
excluded therefrom:
(1) after-tax gains and losses from Asset Sales or abandonments or reserves relating
thereto or from the extinguishment of any Indebtedness of the Company or any Restricted
Subsidiary;
(2) extraordinary or non-recurring gains or losses (determined on an after-tax basis
and less any fees, expenses or charges related thereto);
(3) any non-cash compensation expense Incurred for grants and issuances of stock
appreciation or similar rights, stock options, restricted shares or other rights to
officers, directors and employees of the Company and its Subsidiaries (including any such
grant or issuance to a 401(k) plan or other retirement benefit plan);
(4) the net income (but not loss) of any Restricted Subsidiary to the extent that the
declaration of dividends or similar distributions by that Restricted Subsidiary of that
income is restricted by a contract, operation of law or otherwise;
(5) the net income (loss) of any Person, other than a Restricted Subsidiary, except to
the extent of cash dividends or distributions paid to the Company or to a Restricted
Subsidiary by such Person;
(6) the net income (loss) of any Person acquired during the specified period for any
period, prior to the date of such acquisition, will be excluded for purposes of Restricted
Payments only;
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(7) income or loss attributable to discontinued operations (including, without
limitation, operations disposed of during such period whether or not such operations were
classified as discontinued) from and after the date that such operation is classified as
discontinued;
(8) write-downs resulting from the impairment of intangible assets and any other
non-cash amortization or impairment expenses;
(9) the amount of amortization or write-off of deferred financing costs and debt
issuance costs of the Company and its Restricted Subsidiaries during such period and any
premium or penalty paid in connection with redeeming or retiring Indebtedness of the Company
and its Restricted Subsidiaries prior to the stated maturity thereof pursuant to the
agreements governing such Indebtedness; and
(10) the cumulative effect of a change in accounting principles.
“Consolidated Non-cash Charges” means, with respect to the Company, for any period,
the aggregate depreciation, amortization and other non-cash expenses of the Company and the
Restricted Subsidiaries reducing Consolidated Net Income of the Company for such period, determined
on a consolidated basis in accordance with GAAP (excluding any such charge which requires an
accrual of or a reserve for cash payments for any future period).
“Corporate Trust Office” means the office of the Trustee at which at any particular
time its corporate trust business shall be principally administered, which office at the date
hereof is located at 0 X. XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx XX 00000 Attn: Corporate Trust
Administration.
“Covenant Defeasance” has the meaning set forth in Section 8.01(c).
“Credit Agreement” means the Revolving Credit and Guaranty Agreement, dated as of
October 1, 2010, among the Company, as Borrower, the guarantors party thereto, Xxxxxx Xxxxxxx
Senior Funding, Inc., as administrative agent and collateral agent, and the lenders and other
financial institutions party thereto, together with the documents related thereto (including,
without limitation, any guarantee agreements and security documents), in each case as such
agreements may be amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time in accordance with their terms whether by the same or any
other agent, lender or group of lenders.
“Credit Facilities” means one or more debt facilities (including the Credit Agreement)
or commercial paper facilities providing for revolving credit loans, term loans, receivables
financing (including through the sale of receivables to lenders or to special purpose entities
formed to borrow from lenders against such receivables) or letters of credit, or any debt
securities or other form of debt financing (including convertible or exchangeable debt
instruments), in each case, as amended, supplemented, modified, extended, renewed, restated or
refunded in whole or in part from time to time.
“Currency Agreement” means any foreign exchange contract, currency swap agreement or
other similar agreement or arrangement designed to protect the Company or any Restricted Subsidiary
against fluctuations in currency values.
“Custodian” means any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.
“Default” means an event or condition the occurrence of which is, or with the lapse of
time or the giving of notice of both would be, an Event of Default.
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“Defaulted Interest” has the meaning set forth in Section 6.11.
“Depository” means, with respect to the Notes issued in the form of one or more Global
Notes, The Depository Trust Company or another Person designated as depository or depositary, as
applicable, by the Company, which must be a clearing agency registered under the Exchange Act.
“Designated Non-Cash Consideration” means any non-cash consideration received by the
Company or one of its Restricted Subsidiaries in connection with an Asset Sale that is designated
as Designated Non-cash Consideration pursuant to an Officers’ Certificate executed by an officer of
the Company or such Restricted Subsidiary at the time of such Asset Sale. Any particular item of
Designated Non-cash Consideration will cease to be considered to be outstanding once it has been
sold for cash or Cash Equivalents (which shall be considered Net Cash Proceeds of an Asset Sale
when received).
“Designation” has the meaning set forth in Section 4.16.
“Designation Amount” has the meaning set forth in Section 4.16.
“Disqualified Capital Stock” means that portion of any Capital Stock which, by its
terms (or by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is mandatorily exchangeable for Indebtedness, or is
redeemable or exchangeable for Indebtedness, at the sole option of the holder thereof on or prior
to the final maturity date of the Notes.
“Equity Offering” means a public or private offering of Capital Stock (other than
Disqualified Capital Stock) of the Company.
“Event of Default” has the meaning set forth in Section 6.01(a).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor
statute or statutes thereto, and the rules and regulations of the Commission promulgated
thereunder.
“Exchange Securities” has the meaning provided in the Registration Rights Agreement.
“Fair Market Value” means, with respect to any asset or property, the price which
could be negotiated in an arm’s-length, free market transaction, for cash, between a willing seller
and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the
transaction. For purposes of determining compliance with Article IV, unless provided otherwise any
determination that fair market value of assets (other than cash or Cash Equivalents) is equal to or
greater than $100.0 million will be made by the Board of Directors of the Company acting reasonably
and in good faith and shall be evidenced by an Officers’ Certificate.
“Foreign Subsidiary” means any Restricted Subsidiary that is organized and existing
under the laws of a jurisdiction other than the United States, any State thereof or the District of
Columbia.
“Four Quarter Period” has the meaning set forth in the definition of Consolidated
Fixed Charge Coverage Ratio.
“GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other
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statements by such other entity as may be approved by a significant segment of the accounting
profession of the United States, which are in effect as of the Issue Date.
“Global Note Legend” means the legend set forth in the Form of Note attached hereto as
Exhibit A, which is required to be placed on all Global Notes issued under this Indenture.
“Global Notes” has the meaning set forth in Section 2.15(a).
“Guarantee” means, as to any Person, a guarantee other than by endorsement of
negotiable instruments for collection in the ordinary course of business, direct or indirect, in
any manner, including, without limitation, by way of a pledge of assets or through letters of
credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness of
another Person, but excluding endorsements for collection or deposit in the normal course of
business or Standard Receivables Undertakings in a Qualified Receivables Transaction.
“Guaranteed Indebtedness” has the meaning set forth in Section 4.15(a).
“Guaranteed Obligation” has the meaning set forth in Section 10.01(a).
“Halla” means Halla Climate Control Corporation.
“Hedging Obligations” means, with respect to any Person, the obligations of such
Person in respect of Commodity Agreements, Currency Agreements and Interest Swap Obligations.
“Holder” or “Securityholder” means the Person in whose name a Note is
registered in the Registrar’s records.
“Immaterial Subsidiary” means, at any date of determination, any Subsidiary designated
as such by a Responsible Officer of the Company, such designation evidenced by an Officers’
Certificate, that had consolidated assets representing 5.0% or less of the consolidated total
assets of the Company and its Restricted Subsidiaries on the last day of the most recent Fiscal
Quarter ended more than forty-five (45) days prior to the date of determination; provided
that consolidated assets of all Subsidiaries that would otherwise be deemed Immaterial Subsidiaries
under this definition shall not exceed 10.0% of the consolidated assets, as applicable, of the
Company and its Restricted Subsidiaries on a consolidated basis.
“Incur” means, with respect to any Indebtedness, to Incur, create, issue, assume,
Guarantee or otherwise become directly or indirectly liable for or with respect to, or become
responsible for, the payment of, contingently or otherwise, such Indebtedness (and
“Incurrence” and “Incurred” have meanings correlative to the foregoing);
provided that (1) any Indebtedness of a Person existing at the time such Person becomes a
Restricted Subsidiary will be deemed to be Incurred by such Person at the time it becomes a
Restricted Subsidiary and (2) neither the accrual of interest nor the accretion of original issue
discount nor the payment of interest in the form of additional Indebtedness with the same terms or
the payment of dividends on Disqualified Capital Stock or Preferred Stock in the form of additional
shares of the same class of Disqualified Capital Stock or Preferred Stock (to the extent provided
for when the Indebtedness or Disqualified Capital Stock or Preferred Stock on which such interest
or dividend is paid was originally issued) will be considered an Incurrence of Indebtedness.
“Indebtedness” means, with respect to any Person, without duplication:
(1) all Obligations of such Person for borrowed money;
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(2) all Obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(3) all Capitalized Lease Obligations of such Person and Sale and Leaseback
Transactions;
(4) all Obligations of such Person issued or assumed as the deferred purchase price of
property, all conditional sale obligations and all Obligations under any title retention
agreement (but excluding trade accounts payable and other accrued liabilities arising in the
ordinary course of business that are not overdue by 90 days or more or are being contested
in good faith by appropriate proceedings promptly instituted and diligently conducted);
(5) all Obligations for the reimbursement of any obligor on any letter of credit,
banker’s acceptance or similar credit transaction, excluding obligations in respect of trade
letters of credit or bankers’ acceptances issued in respect of trade payables to the extent
not drawn upon or presented, or, if drawn upon or presented, the resulting obligation of the
Person is paid within 10 Business Days;
(6) guarantees and other contingent obligations in respect of Indebtedness of any other
Person referred to in clauses (1) through (5) above and clauses (8) and (10) below;
(7) all Obligations of any other Person of the type referred to in clauses (1) through
(6) above which are secured by any Lien on any property or asset of such Person;
(8) all Hedging Obligations of such Person;
(9) all Disqualified Capital Stock of the Company and all Preferred Stock of a
Restricted Subsidiary with the amount of Indebtedness represented by such Disqualified
Capital Stock or Preferred Stock being equal to the greater of its voluntary or involuntary
liquidation preference and its maximum fixed repurchase price, but excluding accrued and
unpaid dividends, if any; and
(10) all obligations of such Person in respect of Qualified Receivables Transactions.
Notwithstanding the foregoing, Indebtedness shall not include any liability for federal,
state, local or other taxes owed or owing to any governmental entity.
Indebtedness shall be calculated without giving effect to the effects of ASC 815 and related
interpretations to the extent such effects would otherwise increase or decrease an amount of
Indebtedness for any purpose under this Indenture as a result of accounting for any embedded
derivatives created by the terms of such Indebtedness.
For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Capital
Stock or Preferred Stock which does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Disqualified Capital Stock or Preferred Stock as if such
Disqualified Capital Stock or Preferred 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 or Preferred Stock, such Fair
Market Value shall be determined reasonably and in good faith by the Board of Directors of the
issuer of such Disqualified Capital Stock or Preferred Stock.
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“Independent Financial Advisor” means a firm (1) which does not, and whose directors,
officers and employees and Affiliates do not, have a direct or indirect material financial interest
in the Company and (2) which, in the judgment of the Board of Directors of the Company, is
otherwise independent and qualified to perform the task for which it is to be engaged.
“Initial Notes” means $500,000,000 in aggregate principal amount of Notes issued under
this Indenture on the date hereof.
“Insolvency or Liquidation Proceeding” means, with respect to any Person, (a) any
voluntary or involuntary case or proceeding under any Bankruptcy Law, (b) any other voluntary or
involuntary insolvency, reorganization or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding with respect to such Person or with
respect to any of its assets, (c) any liquidation, dissolution, reorganization or winding up of
such Person whether voluntary or involuntary and whether or not involving insolvency or bankruptcy
or (d) any assignment for the benefit of creditors or any other marshaling of assets and
liabilities of such Person.
“interest” means, with respect to the Notes, interest and Additional Interest, if any, on the
Notes.
“Interest Payment Date” means the stated maturity of an installment of interest on the
Notes.
“Interest Swap Obligations” means, with respect to any Person, any interest rate
protection agreement, interest rate future agreement, interest rate option agreement, interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge
agreement or other similar agreement or arrangement to which such Person is party or of which it is
a beneficiary.
“Investment” means, with respect to any Person, any direct or indirect loan or other
extension of credit (including, without limitation, a Guarantee) or capital contribution to (by
means of any transfer of cash or other property to others or any payment for property or services
for the account or use of others), or any purchase or acquisition by such Person of any Capital
Stock, bonds, notes, debentures or other securities or evidences of Indebtedness issued by, any
other Person. “Investment” shall exclude extensions of trade credit by the Company and the
Restricted Subsidiaries on commercially reasonable terms in accordance with normal trade practices
of the Company or its Restricted Subsidiaries or industry norms. If the Company or any Restricted
Subsidiary sells or otherwise disposes of any Capital Stock of any Restricted Subsidiary (the
“Referent Subsidiary”) such that after giving effect to any such sale or disposition, the
Referent Subsidiary shall cease to be a Restricted Subsidiary, the Company shall be deemed to have
made an Investment on the date of any such sale or disposition equal to the Fair Market Value of
the Capital Stock of the Referent Subsidiary not sold or disposed of.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the
equivalent) by Moody’s (or the equivalent rating by any Successor Rating Agency) and BBB- (or the
equivalent) by S&P (or the equivalent rating by any Successor Rating Agency).
“Issue Date” means April 6, 2011, the date of initial issuance of the Notes.
“Legal Defeasance” has the meaning set forth in Section 8.01(b).
“Lien” means any lien, mortgage, deed of trust, deed to secure debt, pledge, security
interest, charge or encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof and any agreement to give any security
interest).
“Moody’s” means Xxxxx’x Investors Service, Inc. or any successor to its rating agency
business.
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“Net Cash Proceeds” means, with respect to any Asset Sale, the proceeds in the form of
cash or Cash Equivalents, including payments in respect of deferred payment obligations when
received in the form of cash or Cash Equivalents (other than the portion of any such deferred
payment constituting interest), received by the Company or any of the Restricted Subsidiaries from
such Asset Sale, net of:
(1) reasonable out-of-pocket expenses and fees relating to such Asset Sale (including,
without limitation, legal, accounting and investment banking fees, sales commissions and
relocation expenses);
(2) taxes paid or payable after taking into account any tax sharing arrangements;
(3) payments required to be made to any Person (other than to the Company or its
Restricted Subsidiaries) owning a beneficial interest in the assets subject to such Asset
Sale;
(4) repayments of Indebtedness secured by the property or assets subject to such Asset
Sale that is required to be repaid in connection with such Asset Sale;
(5) appropriate amounts to be determined by the Company or any Restricted Subsidiary,
as the case may be, as a reserve, in accordance with GAAP, against any liabilities
associated with such Asset Sale and retained by the Company or any Restricted Subsidiary, as
the case may be, after such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Asset Sale; and
(6) payments of unassumed liabilities (not constituting Indebtedness and not owed to
the Company or any Subsidiary) relating to the assets sold at the time of, or within 30 days
after the date of, such Asset Sale.
“Net Proceeds Offer” has the meaning set forth in Section 4.05(b).
“Net Proceeds Offer Amount” has the meaning set forth in Section 4.05(b).
“Net Proceeds Offer Payment Date” has the meaning set forth in Section 4.05(b).
“Net Proceeds Offer Trigger Date” has the meaning set forth in Section 4.05(b).
“Non-Recourse Debt” means all Indebtedness of which no portion (1) is guaranteed by
the Company or any Subsidiary of the Company (excluding guarantees of Obligations (other than the
principal of, and interest on, Indebtedness) pursuant to Standard Receivables Undertakings), (2) is
recourse to or obligates the Company or any Subsidiary of the Company in any way other than
pursuant to Standard Receivables Undertakings or (3) subjects any property or asset of the Company
or any Subsidiary of the Company (other than Receivables Assets and related assets as provided in
the definition of “Qualified Receivables Transaction”), directly or indirectly, contingently or
otherwise, to the satisfaction thereof other than pursuant to Standard Receivables Undertakings.
“Non-U.S. Person” means a Person who is not a U.S. person, as defined in Regulation S.
“Note Guarantee” means a Guarantee of the Notes pursuant to Section 10.01 of this
Indenture.
“Notes” means any 6.75% Senior Notes due 2019 issued by the Company hereunder,
including, without limitation, the Exchange Securities and any Additional Notes, treated as a
single class of securities,
-15-
as amended or supplemented from time to time in accordance with the terms hereof, that
are issued pursuant to this Indenture.
“Obligations” means any and all obligations with respect to the payment of (a) any
principal of or interest (including interest accruing on or after the commencement of any
Insolvency or Liquidation Proceedings, whether or not a claim for post-filing interest is allowed
in such proceeding) or premium on any Indebtedness, including any reimbursement obligation in
respect of any letter of credit, (b) any fees, indemnification obligations, damages, expense
reimbursement obligations or other liabilities payable under the documentation governing any
Indebtedness, (c) any obligation to post cash collateral in respect of letters of credit and any
other obligations and (d) any Cash Management Obligations or Hedging Obligations.
“Offering Memorandum” means the Offering Memorandum, dated March 31, 2011, relating to
the Notes.
“Officer” means, with respect to any Person, the Chairman of the Board, the Chief
Executive Officer, the President, any Vice President and the Chief Financial Officer of such
Person.
“Officers’ Certificate” means a certificate signed by an Officer of the Company and
another Officer or the secretary, assistant secretary, treasurer or controller of the Company and
delivered to the Trustee.
“Opinion of Counsel” means a written opinion acceptable to the Trustee from legal
counsel who may be an employee of the Company.
“Paying Agent” has the meaning set forth in Section 2.03(a).
“Payment Default” has the meaning set forth in Section 6.01(a)(4).
“Permitted Factoring Program” means (a) Non-Recourse Debt relating to the sale or
financing of Receivables Assets and any Related Security or (b) other sales (in connection with the
financings of) and financings of Receivables Assets and any Related Security.
“Permitted Indebtedness” has the meaning set forth in Section 4.03(b).
“Permitted Investments” means:
(1) Investments by the Company or any Restricted Subsidiary in any Person that is or
will become immediately after such Investment a Restricted Subsidiary or that will merge or
consolidate into the Company or a Restricted Subsidiary;
(2) Investments in the Company by any Restricted Subsidiary;
(3) Investments in cash and Cash Equivalents;
(4) loans and advances to employees, officers and directors of the Company and the
Restricted Subsidiaries in the ordinary course of business for bona fide business purposes
and to purchase Capital Stock of the Company (or any direct or indirect parent company of
the Company) not in excess of an aggregate of $25.0 million at any one time outstanding;
-16-
(5) Commodity Agreements, Currency Agreements and Interest Swap Obligations entered
into in the ordinary course of the Company’s or a Restricted Subsidiary’s businesses and
otherwise in compliance with this Indenture;
(6) Investments received upon foreclosure or pursuant to any plan of reorganization or
similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers
or in connection with, in settlement of obligations of, or disputes with, any Person arising
in the ordinary course of business;
(7) Investments made by the Company or any Restricted Subsidiary as a result of
consideration received in connection with an Asset Sale made in compliance with Section
4.05;
(8) Investments (measured on the date each such Investment was made and without giving
effect to subsequent changes in value) in Persons, including, without limitation,
Unrestricted Subsidiaries and joint ventures, engaged in a business similar or related to or
logical extensions of the businesses in which the Company and the Restricted Subsidiaries
are engaged on the Issue Date, not to exceed the greater of (i) $375.0 million and (ii) 7.5%
of Total Assets at the time of such Investment, at any one time outstanding;
(9) Investments (measured on the date each such Investment was made and without giving
effect to subsequent changes in value) not to exceed the greater of (i) $375.0 million and
(ii) 7.5% of Total Assets at the time of such Investment, at any one time outstanding;
(10) Investments in a Receivables Entity;
(11) stock, obligations or securities received in settlement of debts created in the
ordinary course of business and owing to the Company or any Restricted Subsidiary or in
satisfaction of judgments;
(12) payroll, travel and similar advances to cover matters that are expected at the
time of such advances ultimately to be treated as operating expenses for accounting purposes
and that are made in the ordinary course of business;
(13) prepaid expenses, negotiable instruments held for the collection and workers’
compensation, performance and other similar deposits in the ordinary course of business;
(14) lease, utility and other similar deposits in the ordinary course of business;
(15) Guarantees of Indebtedness of the Company or a Restricted Subsidiary permitted to
be Incurred under this Indenture;
(16) Investments by Halla and its Subsidiaries not to exceed $100.0 million at the time
of such Investment, at any one time outstanding;
(17) Investments resulting from or constituting a part of restructurings of a Person
other than the Company or a Guarantor so long as (a) such restructurings do not result in
cash Investments by the Company or a Guarantor (excluding intercompany transfers that have a
zero net cash effect on the Company and the Guarantors, taken as a whole) and (b) such
restructurings do not result in any increased liabilities or assumption of any obligations
by the Company or any Guarantor;
-17-
(18) Guarantees by the Company or any Restricted Subsidiary of leases, contracts, or of
other obligations that do not constitute Indebtedness and are unsecured, in each case
entered into in the ordinary course of business; and
(19) Investments in existence on the Issue Date and any modification, replacement,
renewal or extension thereof; provided the original amount of such Investment is not
increased except as otherwise permitted by Section 4.04.
“Permitted Liens” means the following types of Liens:
(1) Liens for taxes, assessments or governmental charges or claims either (A) not
delinquent or (B) contested in good faith by appropriate proceedings and, in each case, as
to which the Company or any Restricted Subsidiary shall have set aside on its books such
reserves as may be required pursuant to GAAP;
(2) Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers,
material men, repairmen and other Liens imposed by law Incurred in the ordinary course of
business that are not yet overdue for a period of 30 days or that are being contested in
good faith, if such reserve or other appropriate provision, if any, as shall be required by
GAAP shall have been made in respect thereof;
(3) Liens on property or shares of Capital Stock of another Person at the time such
other Person becomes a Subsidiary and not Incurred in connection with or in contemplation
thereof; provided, however, that the Liens may not extend to any other
property owned by such Person or any of its Restricted Subsidiaries (and assets and property
affixed or appurtenant thereto);
(4) Liens on property at the time such Person or any of its Subsidiaries acquires the
property and not Incurred in connection with or in contemplation thereof, including any
acquisition by means of a merger or consolidation with or into such Person or a Subsidiary
of such Person; provided, however, that the Liens may not extend to any
other property owned by such Person or any of its Restricted Subsidiaries (and assets and
property affixed or appurtenant thereto);
(5) leases, licenses, subleases or sublicenses granted to others that do not materially
interfere with the business of the Company or any Restricted Subsidiary;
(6) any interest or title of a lessor under any lease;
(7) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into in the ordinary course of business;
(8) Liens Incurred or deposits made in the ordinary course of business in connection
with workers’ compensation, unemployment insurance and other types of social security,
including any Lien securing letters of credit issued in the ordinary course of business in
connection therewith, or to secure the performance of tenders, statutory obligations, surety
and appeal bonds, bids, leases, contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed money);
(9) judgment Liens not giving rise to an Event of Default so long as such Lien is
adequately bonded and any appropriate legal proceedings which may have been duly initiated
for the review of such judgment shall not have been finally terminated or the period within
which such proceedings may be initiated shall not have expired;
-18-
(10) easements, rights-of-way, covenants, conditions, zoning restrictions and other
similar charges or restrictions or encumbrances or title or survey defects in respect of
real property or immaterial imperfections of title which do not, in the aggregate, impair in
any material respect the ordinary conduct of the business of the Company and the Restricted
Subsidiaries taken as a whole;
(11) any interest or title of a lessor under any Capitalized Lease Obligation;
provided that such Liens do not extend to any property or asset which is not leased
property subject to such Capitalized Lease Obligation;
(12) purchase money Liens securing Indebtedness Incurred to finance property or assets
of the Company or any Restricted Subsidiary acquired in the ordinary course of business, and
Liens securing Indebtedness which Refinances any such Indebtedness; provided,
however, that (A) the related Purchase Money Indebtedness (or Refinancing
Indebtedness) shall not exceed the cost of such property or assets and shall not be secured
by any property or assets of the Company or any Restricted Subsidiary other than the
property and assets so acquired (and assets affixed or appurtenant thereto) and (B) the Lien
securing the Purchase Money Indebtedness shall be created within 180 days after such
acquisition;
(13) Liens upon specific items of inventory or other goods and proceeds of any Person
securing such Person’s obligations in respect of bankers’ acceptances issued or created for
the account of such Person to facilitate the purchase, shipment or storage of such inventory
or other goods;
(14) Liens securing reimbursement obligations with respect to commercial letters of
credit which encumber documents and other property relating to such letters of credit and
products and proceeds thereof;
(15) Liens encumbering deposits made to secure obligations arising from statutory,
regulatory, contractual or warranty requirements of the Company or any of the Restricted
Subsidiaries, including rights of offset and set-off;
(16) Liens securing Indebtedness Incurred pursuant to Credit Facilities in accordance
with Section 4.03(b)(1);
(17) Liens securing Interest Swap Obligations which Interest Swap Obligations relate to
Indebtedness that is otherwise permitted under this Indenture;
(18) Liens securing Indebtedness and other Obligations under Commodity Agreements,
Currency Agreements and Cash Management Obligations, in each case permitted under this
Indenture;
(19) Liens securing Acquired Indebtedness Incurred in accordance with Section 4.03;
provided that (A) such Liens secured the Acquired Indebtedness at the time of and
prior to the Incurrence of such Acquired Indebtedness by the Company or a Restricted
Subsidiary and were not granted in connection with, or in anticipation of, the Incurrence of
such Acquired Indebtedness by the Company or a Restricted Subsidiary and (B) such Liens do
not extend to or cover any property or assets of the Company or of any of the Restricted
Subsidiaries other than the property or
assets that secured the Acquired Indebtedness prior to the time such Indebtedness
became Acquired Indebtedness of the Company or a Restricted Subsidiary;
-19-
(20) Liens securing Indebtedness of Foreign Subsidiaries and Subsidiaries of Foreign
Subsidiaries Incurred in accordance with this Indenture; provided that such Liens do
not extend to any property or assets other than property or assets of Foreign Subsidiaries
and such Subsidiaries of Foreign Subsidiaries;
(21) Liens Incurred in connection with a Qualified Receivables Transaction;
(22) Liens Incurred to secure Indebtedness; provided that, at the time of
Incurrence and after giving pro forma effect thereto, the aggregate amount of Indebtedness
outstanding secured by such Liens pursuant to this clause (22) will not exceed the greater
of (A) $250.0 million and (B) 5.0% of Total Assets;
(23) Liens arising from the filing of Uniform Commercial Code or similar state law
financing statements regarding leases;
(24) Liens (i) of a collection bank arising under Section 4-210 of the Uniform
Commercial Code or similar state law on items in the course of collection, or (ii) in favor
of a banking institution arising as a matter of law encumbering deposits (including the
right of set-off) and which are within the general parameters customary in the banking
industry;
(25) Liens that are contractual rights of set-off (i) relating to the establishment of
depository relations with banks not given in connection with the issuance of Indebtedness,
(ii) relating to pooled deposit or sweep accounts of the Company or any Subsidiary to permit
satisfaction of overdraft or similar obligations incurred in the ordinary course of business
of the Company and its Subsidiaries or (iii) relating to purchase orders and other
agreements entered into with customers or suppliers of the Company or any Subsidiary in the
ordinary course of business;
(26) Liens arising from precautionary Uniform Commercial Code financing statement
filings (or similar filings) in connection with operating leases or consignment of goods;
(27) Liens affecting the fee title of any real estate leased by the Company or any of
its Restricted Subsidiaries (and not owned by the Company or any Subsidiary) that are
created by a Person other than the Company or its Restricted Subsidiaries;
(28) Liens arising by operation of law under Article 2 of the Uniform Commercial Code
(or any similar state law) in favor of a reclaiming seller of goods or buyer of goods;
(29) pledges or deposits of cash and Cash Equivalents securing deductibles,
self-insurance, co-payment, co-insurance, retentions and similar obligations to providers of
insurance in the ordinary course of business;
(30) Liens on securities which are subject to repurchase agreements as contemplated in
the definition of “Cash Equivalents” permitted under Section 4.03; provided that
such Liens do not extend to any assets other than those that are the subject of such
repurchase agreement;
(31) Liens on (i) incurred premiums, dividends and rebates which may become payable
under insurance policies and loss payments which reduce the incurred premiums on such
insurance policies and (ii) rights which may arise under State insurance guaranty funds
relating to
any such insurance policy, in each case to secure Indebtedness permitted by clause (d)
of Section 4.03(b)(12);
-20-
(32) Liens on xxxxxxx money deposits of cash or Cash Equivalents made by the Company or
any of its Restricted Subsidiaries in connection with any acquisition of assets or Capital
Stock to the extent such transaction is permitted hereunder;
(33) Liens on property subject to a Sale and Leaseback Transaction permitted by Section
4.03;
(34) Liens on goods and the proceeds thereof and title documents relating thereto to
secure drawings under letters of credit issued on behalf of Foreign Subsidiaries used to
finance the purchase of such goods in an aggregate amount not to exceed $35.0 million at any
one time outstanding;
(35) Liens on cash collateral securing the Indebtedness permitted by Section
4.03(b)(17);
(36) security given to a public or private utility or any governmental authority as
required in the ordinary course of business; and
(37) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods.
“Person” means an individual, partnership, corporation, unincorporated organization,
trust or joint venture, or a governmental agency or political subdivision thereof.
“Physical Notes” means certificated Notes in registered form in substantially the form
set forth in Exhibit A.
“Postpetition Letter of Credit Facility” means that certain Letter of Credit
Reimbursement and Security Agreement, dated as of November 13, 2009, by and between Borrower
Representative and U.S. Bank National Association, a national banking institution, as amended,
restated, supplemented or otherwise modified prior to the Issue Date.
“Preferred Stock” of any Person means any Capital Stock of such Person that has
preferential rights to any other Capital Stock of such Person with respect to dividends or
redemptions or upon liquidation.
“Private Placement Legend” means the legend initially set forth on the Rule 144A Notes
and other Notes that are Restricted Notes in the form set forth in Exhibit B.
“Purchase Money Indebtedness” means Indebtedness of the Company or any Restricted
Subsidiary Incurred for the purpose of financing all or any part of the purchase price or the cost
of an Asset Acquisition or construction or improvement of any property; provided that the
aggregate principal amount of such Indebtedness does not exceed such purchase price or cost.
“Qualified Capital Stock” means any Capital Stock that is not Disqualified Capital
Stock.
“Qualified Institutional Buyer” or “QIB” has the meaning specified in Rule
144A promulgated under the Securities Act.
“Qualified Receivables Transaction” means (A) any transaction or series of
transactions entered into by the Company or any of its Subsidiaries pursuant to which the Company
or any of its Subsidiaries
-21-
sells, conveys or otherwise transfers to (1) a Receivables Entity (in
the case of a transfer by the Company or any of its Subsidiaries) or (2) any other Person (in the
case of a transfer by a Receivables Entity), or transfers an undivided interest in or grants a
security interest in, any Receivables Assets (whether now existing or arising in the future) of the
Company or any of its Subsidiaries or (B) a Permitted Factoring Program.
“Quotation Agent” means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and its
successors and assigns or any other nationally recognized investment banking firm selected by the
Company that is a primary U.S. Government securities dealer.
“Rating Agencies” means Xxxxx’x and S&P; provided that if Xxxxx’x, S&P or any
Successor Rating Agency (as defined below) shall cease to be in the business of providing rating
services for debt securities generally, the Company shall be entitled to replace any such Rating
Agency or Successor Rating Agency, as the case may be, which has ceased to be in the business of
providing rating services for debt securities generally with a security rating agency which is in
the business of providing rating services for debt securities generally and which is nationally
recognized in the United States (such rating agency, a “Successor Rating Agency”).
“
Receivables Assets” means any indebtedness, accounts receivable or other obligations
and any assets related thereto, including, without limitation, all collateral securing such
accounts receivable and assets and all contracts and contract rights, and all guarantees or other
supporting obligations (within the meaning of the
New York Uniform Commercial Code Section
9-102(a)(77)) (including Hedging Obligations), in respect of such indebtedness, accounts receivable
or other obligations and assets and all proceeds of the foregoing and other assets which are
customarily transferred, or in respect of which security interests are customarily granted, in
connection with asset securitization transactions involving Receivables Assets.
“Receivables Entity” means a Subsidiary of the Company (or another Person formed for
the purposes of engaging in a Qualified Receivables Transaction in which the Company or any of its
Subsidiaries makes an Investment and to which the Company or any of its Subsidiaries transfers
Receivables Assets) which engages in no activities other than in connection with the financing of
Receivables Assets of the Company or its Subsidiaries, and any business or activities incidental or
related to such financing, and which is designated by the Board of Directors of the Company or of
such other Person (as provided below) to be a Receivables Entity (a) no portion of the Indebtedness
or any other Obligations (contingent or otherwise) of which (1) is guaranteed by the Company or any
Subsidiary of the Company (excluding guarantees of Obligations (other than the principal of, and
interest on, Indebtedness) pursuant to Standard Receivables Undertakings), (2) is recourse to or
obligates the Company or any Subsidiary of the Company in any way other than pursuant to Standard
Receivables Undertakings or (3) subjects any property or asset of the Company or any Subsidiary of
the Company (other than Receivables Assets and related assets as provided in the definition of
“Qualified Receivables Transaction”), directly or indirectly, contingently or otherwise, to the
satisfaction thereof other than pursuant to Standard Receivables Undertakings, (b) with which
neither the Company nor any Subsidiary of the Company has any material contract, agreement,
arrangement or understanding (other than on terms which the Company reasonably believes to be no
less favorable to the Company or such Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company) other than fees payable in the ordinary course of
business in connection with servicing Receivables Assets, and (c) with which neither the Company
nor any Subsidiary of the Company has any obligation to maintain or preserve such entity’s
financial condition or cause such entity to achieve certain levels of operating results.
-22-
“Receivables Repurchase Obligation” means any obligation of a seller of Receivables
Assets in a Qualified Receivables Transaction to repurchase Receivables Assets arising as a result
of a breach of a Standard Receivables Undertaking, including as a result of a Receivables Asset or
portion thereof becoming subject to any asserted defense, dispute, offset or counterclaim of any
kind as a result of any action taken by, any failure to take action by or any other event relating
to the seller.
“Record Date” means the Record Dates specified in the Notes; provided that if
any such date is not a Business Day, the Record Date shall be the first day immediately preceding
such specified day that is a Business Day.
“Redemption Date,” when used with respect to any Note to be redeemed, means the date
fixed for such redemption pursuant to this Indenture and the Notes.
“Redemption Price,” when used with respect to any Note to be redeemed, means the price
fixed for such redemption, payable in immediately available funds, pursuant to this Indenture and
the Notes.
“Reference Date” has the meaning set forth in Section 4.04(a)(C)(i).
“Reference Treasury Dealer” means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
and its successors and assigns and two other nationally recognized investment banking firms
selected by the Company that are primary U.S. Government securities dealers.
“
Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury
Dealer and any Redemption Date, the average, as determined by the Company, of the bid and asked
prices for either the Comparable Treasury Issue, expressed in each case as a percentage of its
principal amount, quoted in writing to the Company by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day immediately preceding such Redemption Date.
“Refinance” means in respect of any security or Indebtedness, to refinance, extend,
renew, refund, repay, prepay, redeem, defease or retire, or to issue a security or Indebtedness in
exchange or replacement for, such security or Indebtedness in whole or in part.
“Refinanced” and “Refinancing” shall have correlative meanings.
“Refinancing Indebtedness” means any Refinancing by the Company or any Restricted
Subsidiary of Indebtedness, in each case that does not:
(1) result in an increase in the aggregate principal amount of any Indebtedness of such
Person as of the date of the completion of all components of such proposed Refinancing
(provided such completion occurs within 60 days of the initial Incurrence of
Indebtedness in connection with such Refinancing) (plus the amount of any premium reasonably
necessary to Refinance such Indebtedness and plus the amount of reasonable expenses Incurred
by the Company in connection with such Refinancing); or
(2) create Indebtedness with (A) a Weighted Average Life to Maturity that is less than
the Weighted Average Life to Maturity of the Indebtedness being Refinanced or (B) a final
maturity earlier than the final maturity of the Indebtedness being Refinanced;
provided that (x) if such Indebtedness being Refinanced is Indebtedness of the Company
and/or a Subsidiary Guarantor, then such Refinancing Indebtedness shall be Indebtedness solely of
the Company and/or such Subsidiary Guarantor and (y) if such Indebtedness being Refinanced is
subordinate or junior to the Notes or any Note Guarantee, then such Refinancing Indebtedness shall
be subordinate in right of
-23-
payment to the Notes or such Note Guarantee, as the case may be, at least to the same extent and in
the same manner as the Indebtedness being Refinanced.
“Registrar” has the meaning set forth in Section 2.03(a).
“Registration Rights Agreement” means the registration rights agreement dated as of
the Issue Date among the Company, the Subsidiary Guarantors and the initial purchasers named
therein.
“Regulation S” means Regulation S promulgated under the Securities Act.
“Regulation S Global Note” has the meaning set forth in Section 2.15(a).
“Regulation S Notes” has the meaning set forth in Section 2.01(a).
“Related Security” means, with respect to any Receivables Asset, (a) all of the
relevant interest in any inventory and goods (including returned or repossessed inventory and
goods), and documentation or title evidencing the shipment or storage of any inventory and goods
(including returned or repossessed inventory and goods), relating to any sale giving rise to such
Receivables Asset, and all insurance contracts with respect thereto; (b) all other security
interests or Liens and property subject thereto from time to time purporting to secure payment of
such Receivables Asset, together with all Uniform Commercial Code financing statements or similar
filings and security agreements describing any collateral relating thereto; (c) all guarantees,
letters of credit, letter of credit rights, supporting obligations, indemnities, insurance and
other agreements or arrangements of whatever character from time to time supporting or securing
payment of such Receivables Asset or otherwise relating to such Receivables Asset; (d) all service
contracts and other contracts, agreements, instruments and other writings associated with such
Receivables Asset; (e) all records related to such Receivables Asset or any of the foregoing; (f)
all right, title and interest in, to and under the sales agreement and related performance guaranty
and the like in respect of such Receivables Asset; and (g) all proceeds of any of the foregoing.
“Replacement Assets” means assets and property (including capital expenditures) that
will be used in the business of the Company and/or its Restricted Subsidiaries or in a business the
same, similar or reasonably related thereto or in an unrelated business to the extent that it is
not material in size as compared to the business of the Company and its Restricted Subsidiaries
taken as a whole (including Capital Stock of a Person which becomes a Restricted Subsidiary).
“Responsible Officer” means, when used with respect to the Trustee, any officer in the
Corporate Trust Department of the Trustee including any vice president, assistant vice president 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, and to whom any corporate trust
matter is referred because of such officer’s knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this Indenture.
“Responsible Officer of the Company” means the chief executive officer or chief
financial officer of the Company.
“Restricted Global Note” has the meaning set forth in Section 2.15(a).
“Restricted Note” has the same meaning as “Restricted Security” set forth in Rule
144(a)(3) promulgated under the Securities Act; provided that the Trustee shall be entitled
to request and conclusively rely upon an Opinion of Counsel with respect to whether any Note is a
Restricted Note.
-24-
“Restricted Payment” has the meaning set forth in Section 4.04.
“Restricted Period” has the meaning set forth in Section 2.15(f).
“Restricted Subsidiary” means any Subsidiary of the Company that has not been
designated by the Board of Directors of the Company, by a Board Resolution delivered to the
Trustee, as an Unrestricted Subsidiary pursuant to and in compliance with Section 4.16. Any such
Designation may be revoked by a Board Resolution of the Company delivered to the Trustee, subject
to the provisions of such covenant.
“Reversion Date” has the meaning set forth in Section 4.18(a).
“Revocation” has the meaning set forth in Section 4.16.
“Rule 144” means Rule 144 promulgated under the Securities Act.
“Rule 144A” means Rule 144A promulgated under the Securities Act.
“Rule 144A Notes” has the meaning set forth in Section 2.01(a).
“S&P” means Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., or any successor to its rating agency business.
“Sale and Leaseback Transaction” means any direct or indirect arrangement with any
Person or to which any such Person is a party, providing for the leasing to the Company or a
Restricted Subsidiary of any property, whether owned by the Company or any Restricted Subsidiary at
the Issue Date or later acquired, which has been or is to be sold or transferred by the Company or
such Restricted Subsidiary to such Person or to any other Person from whom funds have been or are
to be advanced on the security of such Property.
“Securities Act” means the Securities Act of 1933, as amended, or any successor
statute or statutes thereto, and the rules and regulations of the Commission promulgated
thereunder.
“Significant Subsidiary” means, with respect to any Person, any Restricted Subsidiary
of such Person that satisfies the criteria for a “significant subsidiary” set forth in Rule 1.02(w)
of Regulation S-X under the Securities Act.
“Special Record Date” has the meaning set forth in Section 6.11.
“Standard Receivables Undertakings” means representations, warranties, covenants and
indemnities entered into by the Company or any Subsidiary of the Company which are customary in a
Qualified Receivables Transaction, including, without limitation, those relating to the servicing
of the assets of a Receivables Entity, it being understood that any Receivables Repurchase
Obligation shall be deemed to be a Standard Receivables Undertaking.
“Subordinated Indebtedness” means Indebtedness as to which the payment of principal
(and premium, if any) and interest and other payment obligations is subordinate or junior in right
of payment by its terms to the Notes or the Note Guarantees of the Company or a Subsidiary
Guarantor, as applicable.
“Subsidiary,” with respect to any Person, means (1) any corporation of which the
outstanding Capital Stock having at least a majority of the votes entitled to be cast in the
election of directors under
-25-
ordinary circumstances shall at the time be owned, directly or indirectly, by such Person or
(2) any other Person of which at least a majority of the voting interest under ordinary
circumstances is at the time, directly or indirectly, owned by such Person.
“Subsidiary Guarantor” means each Restricted Subsidiary that executes this Indenture
on the Issue Date and each Restricted Subsidiary that in the future is required to or executes a
Guarantee pursuant to Section 4.15 or otherwise; provided that any Person constituting a
Subsidiary Guarantor as described above shall cease to constitute a Subsidiary Guarantor when its
Notes Guarantee is released in accordance with the terms of this Indenture.
“Successor Rating Agency” has the meaning set forth in the definition of “Rating
Agencies.”
“Surviving Entity” has the meaning set forth in Section 5.01(a)(1).
“Suspended Covenants” has the meaning set forth in Section 4.18(a).
“Suspension Date” has the meaning set forth in Section 4.18(a).
“Suspension Period” has the meaning set forth in Section 4.18(a).
“Total Assets” means the total consolidated assets of the Company and its Restricted
Subsidiaries, as shown on the most recent balance sheet of the Company required to be provided to
the Trustee, calculated on a pro forma basis to give effect to any acquisition or disposition of
companies, divisions, lines of businesses or operations by the Company and its Restricted
Subsidiaries subsequent to such date and on or prior to the date of determination.
“Total Debt” means, at any date of determination, the aggregate amount of all
outstanding Indebtedness of the Company and its Subsidiaries determined on a consolidated basis in
accordance with GAAP.
“Total Leverage Ratio” means, as of the date of determination, the ratio of (a) Total
Debt to (b) Consolidated EBITDA for the Four Quarter Period ending on or prior to the Transaction
Date, in each case with such pro forma adjustments to Total Debt and Consolidated EBITDA as are
appropriate and consistent with the pro forma adjustment provisions set forth in the definition of
“Consolidated Fixed Charge Coverage Ratio.”
“Transaction Date” has the meaning set forth in the definition of “Consolidated Fixed
Charge Coverage Ratio.”
“Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939 (15
U.S.C. §§ 77aaa-77bbbb), as amended, as in effect on the date of the execution of this Indenture
until such time as this Indenture is qualified under the TIA, and thereafter as in effect on the
date on which this Indenture is qualified under the TIA, except as otherwise provided in Section
9.03.
“Trustee” means the party named as such in this Indenture until a successor replaces
it in accordance with the provisions of this Indenture and thereafter means such successor.
“
Uniform Commercial Code” means the Uniform Commercial Code as in effect in the State
of
New York or any other applicable jurisdiction.
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“Unrestricted Subsidiary” means any Subsidiary of the Company designated as such
pursuant to and in compliance with Section 4.16. Any such designation may be revoked by a Board
Resolution of the Company delivered to the Trustee, subject to the provisions of such covenant.
“U.S. Government Obligations” has the meaning set forth in Section 8.01(d)(1).
“U.S. Legal Tender” means such coin or currency in immediately available funds of the
United States of America as at the time of payment shall be legal tender for the payment of public
and private debts.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing (A) the then outstanding aggregate principal amount
of such Indebtedness into (B) the sum of the total of the products obtained by multiplying (I) the
amount of each then remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (II) the number of years
(calculated to the nearest one-twelfth) which will elapse between such date and the making of such
payment.
“Wholly Owned Restricted Subsidiary” of the Company means any Restricted Subsidiary of
which all the outstanding voting securities (other than in the case of a Foreign Subsidiary,
directors’ qualifying shares or an immaterial amount of shares required to be owned by other
Persons pursuant to applicable law) are owned by the Company or any other Wholly Owned Restricted
Subsidiary.
SECTION 1.02. Incorporation by Reference of TIA.
(a) Whenever this Indenture refers to a provision of the TIA, such provision is incorporated
by reference in, and made a part of, this Indenture.
(b) The following TIA terms used in this Indenture have the following meanings:
“indenture securities” means the Notes.
“obligor” on the indenture securities means the Company, any Subsidiary Guarantor and
any other obligor on the Notes.
(c) All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by Commission rule and not otherwise defined herein have
the meanings assigned to them therein.
SECTION 1.03. Rules of Construction.
(a) 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 words in the plural include the
singular;
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(5) provisions apply to successive events and transactions; and
(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.
ARTICLE II
THE NOTES
SECTION 2.01. Form and Dating.
(a) General. The Notes and the Trustee’s certificate of authentication shall be
substantially in the form of Exhibit A hereto, which is hereby incorporated in and
expressly made part of this Indenture. The Notes may have notations, legends or endorsements
required by law, rule or usage to which the Company is subject. Without limiting the generality of
the foregoing, Notes offered and sold to Qualified Institutional Buyers in reliance on Rule 144A
(“Rule 144A Notes”) shall bear the legend and include the form of assignment set forth in
Exhibit B and Notes offered and sold in offshore transactions in reliance on Regulation S
(“Regulation S Notes”) shall bear the legend and include the form of assignment set forth
in Exhibit C. The Company shall approve the form of the Notes and any notation, legend or
endorsement on them. Each Note shall be dated the date of its authentication. The Notes shall be
in denominations of $2,000 and integral multiples of $1,000 thereafter. The terms and provisions
contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture
and the Company, the Subsidiary Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the
extent any provision of any Note conflicts with the express provisions of this Indenture, the
provisions of this Indenture shall govern and be controlling.
(b) Book-Entry Provisions. This Section 2.01(b) shall only apply to Global Notes
deposited with the Trustee, as custodian for the Depository. Agent Members shall have no rights
under this Indenture with respect to any Global Note held on their behalf by the Depository or by
the Trustee as the custodian for the Depository or under such Global Note, and the Depository shall
be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization furnished by the
Depository or impair, as between the Depository and its Agent Members, the Applicable Procedures or
the operation of customary practices of the Depository governing the exercise of the rights of a
holder of a beneficial interest in any Global Note.
(c) Physical Notes. Except as otherwise provided herein, owners of beneficial
interests in Global Notes will not be entitled to receive physical delivery of Physical Notes. For
greater certainty, the provisions of this Section 2.01(c) are subject to the requirements relating
to notations, legends or endorsements on Notes required by law, stock exchange rule or agreements
to which any the Company is subject, if any.
SECTION 2.02. Execution and Authentication.
(a) One Officer shall sign the Notes for the Company by manual or facsimile signature and
attested by its Secretary or one of its Assistant Secretaries.
(b) If an Officer whose signature is on a Note no longer holds that office at the time a Note
is authenticated, the Note shall nevertheless be valid.
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(c) A Note shall not be valid until authenticated by the manual signature of the Trustee. The
signature shall be conclusive evidence that the Note has been authenticated under this Indenture.
(d) The Trustee shall, upon a written order of the Company signed by one Officer (an
“Authentication Order”), authenticate Notes for original issue.
(e) The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Notes. Unless otherwise provided in the appointment, an authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this 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 or any of their respective Subsidiaries.
SECTION 2.03. Registrar and Paying Agent.
(a) The Company shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (“Registrar”) and an office or agency where Notes
may be presented for payment (“Paying Agent”). The Registrar shall keep a register of the
Notes and of their transfer and exchange. The Company may appoint one or more co-registrars and
one or more additional paying agents. The term “Registrar” includes any co-registrar and the term
“Paying Agent” includes any additional paying agent. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company shall 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.
(b) The Company initially appoints The Depository Trust Company to act as Depository with
respect to the Global Notes.
(c) The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to
act as Custodian with respect to the Global Notes, and the Trustee hereby initially agrees so to
act.
SECTION 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent shall hold in trust for the benefit of the Holders or the Trustee all money held
by the Paying Agent for the payment of principal, premium, if any, or interest on the Notes, and
shall notify the Trustee in writing 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 2.05. Holder Lists.
The Trustee shall preserve, in as current a form as is reasonably practicable, the most recent
list available to it of the names and addresses of all Holders and shall otherwise comply with TIA
§ 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least
seven Business Days before each Interest Payment Date and at such other times as the Trustee may
request in writing, a list in
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such form and as of such date or such shorter time as the Trustee may allow, as the Trustee
may reasonably require of the names and addresses of the Holders, and the Company shall otherwise
comply with TIA § 312(a).
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their
rights under this Indenture or under the Notes. The Company, the Trustee, the Registrar and any
other Person shall have the protection of TIA § 312(c).
SECTION 2.06. Transfer and Exchange.
Subject to Sections 2.15 and 2.16, when Notes are presented to the Registrar with a request
from the Holder of such Notes to register a transfer or to exchange them for an equal principal
amount of Notes of other authorized denominations, the Registrar shall register the transfer as
requested if the requirements of this Indenture are met. Every Note presented or surrendered for
registration of transfer or exchange shall be duly endorsed or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Registrar, duly executed by the
Holder thereof or his attorneys duly authorized in writing. To permit registrations of transfers
and exchanges, the Company shall issue and execute and the Trustee shall authenticate new Notes
(and the Subsidiary Guarantors shall execute the guarantee thereon) evidencing such transfer or
exchange at the Registrar’s request. No service charge shall be made to the Holder for any
registration of transfer or exchange. The Company may require from the Holder payment of a sum
sufficient to cover any transfer taxes or other governmental charge that may be imposed in relation
to a transfer or exchange, but this provision shall not apply to any exchange pursuant to Section
2.10, 2.16, 3.06, 4.17 or 9.05 (in which events the Company shall be responsible for the payment of
such taxes). The Registrar shall not be required to exchange or register a transfer of any Note
for a period of 15 days immediately preceding the mailing of notice of redemption of Notes to be
redeemed or of any Note selected, called or being called for redemption except the unredeemed
portion of any Note being redeemed in part.
Any Holder of the Global Note shall, by acceptance of such Global Note, agree that transfers
of the beneficial interests in such Global Note may be effected only through a book entry system
maintained by the Holder of such Global Note (or its agent), and that ownership of a beneficial
interest in the Global Note shall be required to be reflected in a book entry.
Each Holder of a Note agrees to indemnify the Company and the Trustee against any liability
that may result from the transfer, exchange or assignment of such Holder’s Note in violation of any
provision of this Indenture and/or applicable U.S. Federal or state securities law.
Except as expressly provided herein, neither the Trustee nor the Registrar shall have any duty
to monitor the Company’s compliance with or have any responsibility with respect to the Company’s
compliance with any Federal or state securities laws.
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SECTION 2.07. Replacement Notes. |
If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any Note, the Company shall issue
and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if
the Trustee’s requirements are met. An indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any
Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced.
The Company may charge for its expenses in replacing a Note.
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In case any such mutilated, destroyed, lost or stolen Note had become or is about to become
due and payable, the Company, in its discretion, may, instead of issuing a new Note, pay such Note,
upon satisfaction of the conditions set forth in the preceding paragraph.
Every replacement Note is an additional obligation of the Company and shall be entitled to all
of the benefits of this Indenture equally and proportionately with all other Notes duly issued
hereunder.
The provisions of this Section 2.07 are exclusive and shall preclude (to the extent lawful)
all other rights and remedies of any Holder with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Note.
SECTION 2.08. Outstanding Notes.
(a) The Notes outstanding at any time are all the Notes authenticated by the Trustee except
for those cancelled by it, those delivered to it for cancellation, those reductions in the interest
in a Global Note effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.08 as not outstanding. A Note does not cease to be outstanding because
the Company or an Affiliate of the Company holds the Note; however, Notes held by the Company or a
Subsidiary of the Company shall not be deemed to be outstanding for purposes of Section 2.08(b)
hereof.
(b) If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced note is held by a bona fide
purchaser.
(c) If the principal amount of any Note is considered paid under Section 4.01 hereof, it
ceases to be outstanding and interest on it ceases to accrue.
(d) If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof)
segregates and holds in trust, in accordance with this Indenture, on a date of redemption (a
“Redemption Date”) or maturity date, money sufficient to pay all principal, premium, if
any, and interest payable on that date with respect to the Notes payable on that date, then on and
after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
SECTION 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, amendment, supplement, waiver or consent, Notes owned by the Company, or by any
Affiliate of the Company, shall be considered as though not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in conclusively relying on any such
direction, amendment, supplement, waiver or consent, only Notes that a Responsible Officer of the
Trustee actually knows are so owned shall be so disregarded.
SECTION 2.10. Temporary Notes.
Until certificates representing Notes are ready for delivery, the Company may prepare and the
Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary
Notes shall be substantially in the form of Physical Notes but may have variations that the Company
considers appropriate for temporary Notes and as shall be reasonably acceptable to the Trustee.
Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate Physical
Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of this Indenture.
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SECTION 2.11. 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, upon written direction by the Company and no one else shall cancel all Notes
surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall
dispose of such cancelled Notes in accordance with its customary procedures (subject to the record
retention requirements of the Exchange Act). The Company may not issue new Notes to replace Notes
that it has paid or that have been delivered to the Trustee for cancellation.
SECTION 2.12. CUSIP or ISIN Numbers.
The Company in issuing the Notes may use “CUSIP” or “ISIN” numbers (if then generally in use),
and, if so, the Trustee shall use “CUSIP” or “ISIN” numbers in notices of redemption as a
convenience to Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Notes or as
contained in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not be affected by any
defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of
any change in the “CUSIP” or “ISIN” numbers.
SECTION 2.13. Additional Notes.
The Company shall be entitled, subject to its compliance with Section 4.03 hereof, to issue
Additional Notes under this Indenture in an unlimited aggregate principal amount, each of which
shall have identical terms as the Initial Notes, other than with respect to the date of issuance
and issue price and first payment of interest. The Initial Notes and any Additional Notes shall be
treated as a single class for all purposes under this Indenture, including without limitation,
waivers, amendments, redemptions and offers to purchase.
With respect to any Additional Notes, the Company shall set forth in a resolution of its Board
of Directors and an Officers’ Certificate, a copy of each which shall be delivered to the Trustee,
the following information:
(1) the aggregate principal amount of such Additional Notes to be authenticated and
delivered pursuant to this Indenture; and
(2) the issue price, the issue date and the CUSIP number(s) (which may be different
than the CUSIP numbers of the Initial Notes) of such Additional Notes.
SECTION 2.14. Deposit of Moneys.
Not later than 11:00 a.m. Eastern Time on each due date of the principal, premium, if any, and
interest on any Notes, the Company shall deposit with the Paying Agent money in immediately
available funds sufficient to pay such principal, premium, if any, and interest so becoming due.
SECTION 2.15. Book-Entry Provisions for Global Notes.
(a) Rule 144A Notes initially shall be represented by one or more notes in registered, global
form without interest coupons (collectively, the “Restricted Global Note”). Regulation S
Notes initially shall be represented by one or more notes in registered, global form without
interest coupons (collectively,
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the “Regulation S Global Note” and, together with the Restricted Global Note
and any other global notes representing Notes, the “Global Notes”). The Global Notes shall
bear legends as set forth in Exhibit D. The Global Notes initially shall (i) be registered
in the name of the Depository or the nominee of such Depository, in each case for credit to an
account of an Agent Member, (ii) be delivered to the Trustee as custodian for such Depository and
(iii) bear legends as set forth in Exhibit B with respect to Restricted Global Notes and
Exhibit C with respect to Regulation S Global Notes.
Members of, or direct or indirect participants in, the Depository (“Agent Members”)
shall have no rights under this Indenture with respect to any Global Note held on their behalf by
the Depository, or the Trustee as its custodian, or under the Global Notes, and the Depository may
be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner of the Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization furnished by the
Depository or impair, as between the Depository and its Agent Members, the operation of customary
practices governing the exercise of the rights of a Holder of any Note.
(b) Transfers of Global Notes shall be limited to transfer in whole, but not in part, to the
Depository, its successors or their respective nominees. Subject to Section 2.15(f), interests of
beneficial owners in the Global Notes may be transferred or exchanged for Physical Notes in
accordance with the rules and procedures of the Depository and the provisions of Section 2.16. In
addition, subject to Section 2.15(f), a Global Note shall be exchangeable for Physical Notes if (i)
the Depository (x) notifies the Company that it is unwilling or unable to continue as depository
for such Global Note and the Company thereupon fails to appoint a successor depository within 90
days thereof or (y) has ceased to be a clearing agency registered under the Exchange Act and the
Company thereupon fails to appoint a successor depository within 90 days thereof or (ii) upon the
request of a Holder if there shall have occurred and be continuing an Event of Default with respect
to the Notes. In all cases, Physical Notes delivered in exchange for any Global Note or beneficial
interests therein shall be registered in the names, and issued in any approved denominations,
requested by or on behalf of the Depository (in accordance with its customary procedures).
(c) In connection with any transfer or exchange of a portion of the beneficial interest in any
Global Note to beneficial owners pursuant to paragraph (b), the Registrar shall (if one or more
Physical Notes are to be issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount of the beneficial
interest in the Global Note to be transferred, and the Company shall execute, and the Trustee shall
upon receipt of a written order from the Company authenticate and make available for delivery, one
or more Physical Notes of like tenor and amount.
(d) In connection with the transfer of Global Notes as an entirety to beneficial owners
pursuant to paragraph (b), the Global Notes shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depository in writing in exchange for its beneficial
interest in the Global Notes, an equal aggregate principal amount of Physical Notes of authorized
denominations.
(e) Any Physical Note constituting a Restricted Note delivered in exchange for an interest in
a Global Note pursuant to paragraph (b), (c) or (d) shall, except as otherwise provided by
paragraphs (a)(i)(x) and (c) of Section 2.16, bear the Private Placement Legend or, in the case of
the Regulation S Global Note, the legend set forth in Exhibit C, in each case, unless the
Company determines otherwise in compliance with applicable law.
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(f) On or prior to the 40th day after the later of the commencement of the offering of the
Notes represented by the Regulation S Global Note and the issue date of such Notes (such period
through and including such 40th day, the “Restricted Period”), a beneficial interest in a
Regulation S Global Note may be transferred to a Person who takes delivery in the form of an
interest in the corresponding Restricted Global Note only upon receipt by the Trustee of a written
certification from the transferor to the effect that such transfer is being made (i) (a) to a
Person whom the transferor reasonably believes is a Qualified Institutional Buyer in a transaction
meeting the requirements of Rule 144A or (b) pursuant to another exemption from the registration
requirements under the Securities Act which is accompanied by an Opinion of Counsel regarding the
availability of such exemption and (ii) in accordance with all applicable securities laws of any
state of the United States or any other jurisdiction. During the Restricted Period, a beneficial
interest in the Regulation S Global Note may not be exchanged for a Physical Note.
(g) Beneficial interests in the Restricted Global Note may be transferred to a Person who
takes delivery in the form of an interest in the Regulation S Global Note, whether before or after
the expiration of the Restricted Period, only if the transferor first delivers to the Trustee a
written certificate to the effect that such transfer is being made in accordance with Rule 903 or
904 of Regulation S or Rule 144 (if available).
(h) Any beneficial interest in one of the Global Notes that is transferred to a Person who
takes delivery in the form of an interest in another Global Note shall, upon transfer, cease to be
an interest in such Global Note and become an interest in such other Global Note and, accordingly,
shall thereafter be subject to all transfer restrictions and other procedures applicable to
beneficial interests in such other Global Note for as long as it remains such an interest.
(i) The Holder of any Global Note may grant proxies and otherwise authorize any Person,
including Agent Members and Persons that may hold interests through Agent Members, to take any
action which a Holder is entitled to take under this Indenture or the Notes.
SECTION
2.16. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors and Non-U.S. Persons. The
following provisions shall apply with respect to the registration of any proposed transfer of a
Note constituting a Restricted Note to any Institutional Accredited Investor which is not a QIB or
to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any Note constituting a Restricted
Note, whether or not such Note bears the Private Placement Legend, if (x) the requested
transfer is after the date such Note shall be freely transferable under Rule 144 as
certified in an Officers’ Certificate or (y) (1) in the case of a transfer to an
Institutional Accredited Investor which is not a QIB (excluding Non-U.S. Persons), the
proposed transferee has delivered to the Registrar a certificate substantially in the form
of Exhibit E hereto and an Opinion of Counsel reasonably satisfactory to the Company
and the Trustee or (2) in the case of a transfer to a Non-U.S. Person (including a QIB), the
proposed transferor has delivered to the Registrar a certificate substantially in the form
of Exhibit F hereto; provided that in the case of any transfer of a Note
bearing the Private Placement Legend for a Note not bearing the Private Placement Legend,
the Registrar has received an Officers’ Certificate authorizing such transfer; and
(ii) if the proposed transferor is an Agent Member holding a beneficial interest in a
Global Note, upon receipt by the Registrar of (x) the certificate, if any, required by
paragraph (i) above and (y) instructions given in accordance with the Depository’s and the
Registrar’s procedures,
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whereupon (A) the Registrar shall reflect on its books and records the date and (if the
transfer does not involve a transfer of outstanding Physical Notes) a decrease in the principal
amount of a Global Note in an amount equal to the principal amount of the beneficial interest in a
Global Note to be transferred, and (B) the Registrar shall reflect on its books and records the
date and an increase in the principal amount of a Global Note in an amount equal to the principal
amount of the beneficial interest in the Global Note transferred or the Company shall execute and
the Trustee shall authenticate and make available for delivery one or more Physical Notes of like
tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with respect to the
registration or any proposed registration of transfer of a Note constituting a Restricted Note to a
QIB (excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer if such transfer is being made by a
proposed transferor who has checked the box provided for on such Holder’s Note stating, or
has otherwise advised the Company and the Registrar in writing, that the sale has been made
in compliance with the provisions of Rule 144A to a transferee who has signed the
certification provided for on such Holder’s Note stating, or has otherwise advised the
Company and the Registrar in writing, that it is purchasing the Note for its own account or
an account with respect to which it exercises sole investment discretion and that it and any
such account is a QIB within the meaning of Rule 144A, and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as it has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from registration provided by Rule
144A; and
(ii) if the proposed transferee is an Agent Member, and the Notes to be transferred
consist of Physical Notes which after transfer are to be evidenced by an interest in the
Global Note, upon receipt by the Registrar of instructions given in accordance with the
Depository’s and the Registrar’s procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Global Note in an amount
equal to the principal amount of the Physical Notes to be transferred, and the Trustee shall
cancel the Physical Notes so transferred.
(c) Private Placement Legend. Upon the registration of transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar shall deliver Notes
that do not bear the Private Placement Legend. Upon the registration of transfer, exchange or
replacement of Notes bearing the Private Placement Legend, the Registrar shall deliver only Notes
that bear the Private Placement Legend unless (i) it has received the Officers’ Certificate
required by paragraph (a)(i)(y) of this Section 2.16, (ii) there is delivered to the Registrar an
Opinion of Counsel reasonably satisfactory to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in order to maintain
compliance with the provisions of the Securities Act or (iii) such Note has been sold pursuant to
an effective registration statement under the Securities Act and the Registrar has received an
Officers’ Certificate from the Company to such effect or such Note has been exchanged in the
exchange offer under the Registration Rights Agreement.
(d) General. By its acceptance of any Note bearing the Private Placement Legend,
each Holder of such Note acknowledges the restrictions on transfer of such Note set forth in this
Indenture and in the Private Placement Legend and agrees that it will transfer such Note only as
provided in this Indenture.
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Xxx Xxxxxxxxx shall retain for a period of two years copies of all letters, notices and other
written communications received pursuant to Section 2.15 or this Section 2.16. The Company shall
have the right to inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable notice to the Registrar.
ARTICLE III
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem the Notes pursuant to the optional redemption provisions of
Section 3.07 hereof and paragraph 5 of the applicable Notes, it shall furnish to the Trustee an
Officers’ Certificate setting forth (i) the Section 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. If the Company elects to redeem the Notes pursuant to the
provisions of Section 3.07 hereof and paragraph 5 of the applicable Notes, it shall furnish such
Officers’ Certificate to the Trustee at least 30 days but not more than 60 days before a Redemption
Date unless a shorter notice shall be reasonably satisfactory to the Trustee. Each Officers’
Certificate shall be accompanied by an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein. Any such notice may be cancelled at any time
prior to notice of such redemption being mailed to any Holder and shall, therefore, be void and of
no effect.
SECTION 3.02. Selection of Notes to be Redeemed.
(a) If less than all of the Notes are to be redeemed or purchased at any time, the Trustee
shall select the Notes to be redeemed or purchased, (i) if the applicable Notes are listed, in
compliance with the requirements of the principal national securities exchange on which the
applicable Notes are listed, or (ii) if the applicable Notes are not so listed, on a pro rata
basis, by lot or by such method as the Trustee in its sole discretion shall deem to be appropriate.
In the event of partial redemption, the particular Notes to be redeemed shall be selected, unless
otherwise provided herein, not less than 30 nor more than 60 days prior to the Redemption Date by
the Trustee, unless a shorter notice period shall be agreed to by the Trustee, from the outstanding
Notes not previously called for redemption.
(b) The Trustee shall promptly notify the Company in writing of the Notes selected for
redemption and, in the case of any Note selected for partial redemption, the principal amount
thereof to be redeemed. Notes and portions of Notes selected shall be in amounts of $2,000 or
whole multiples of $1,000 thereafter; except that if all of the Notes of a Holder are to be
redeemed, the entire outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Notes called for redemption also apply to portions of Notes called for
redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days, unless a shorter notice period shall be agreed to
by the Trustee, before a Redemption Date (except in the case of satisfaction and discharge pursuant
to Section 8.02), 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) and
shall state:
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(a) the Redemption Date;
(b) the Redemption Price;
(c) if any Note is being redeemed in part, the portion of the principal amount of
such Note to be redeemed and that, after the Redemption Date upon surrender of such Note, a
new Note or Notes in principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying Agent to
collect the Redemption Price;
(f) that, unless the Company defaults in making such redemption payment, interest
on Notes called for redemption ceases to accrue on and after the Redemption Date;
(g) the paragraph of the Notes and Section of this Indenture pursuant to which the
Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy of the CUSIP
number, if any, listed in such notice or printed on the Notes.
At the Company’s written request, the Trustee shall give the notice of redemption in the
Company’s name and at its expense, provided, however, that the Company gives the
Trustee the notice information and at least 10 Business Days prior notice of such request, unless a
shorter period shall be agreed to by the Trustee. Any redemption and notice thereof may, in the
Company’s discretion, be subject to the satisfaction of one or more conditions precedent. Any
redemption notice may, in the Company’s discretion, be subject to the satisfaction of one or more
conditions precedent.
SECTION 3.04. Effect of Notice Upon Redemption.
Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for
redemption become irrevocably due and payable on the Redemption Date at the Redemption Price stated
in the notice. Upon surrender to the Paying Agent, such Notes shall be paid at the Redemption Price
stated in the notice, plus accrued interest to the Redemption Date (subject to the right of Holders
of record on the relevant Record Date to receive interest due on the related Interest Payment
Date). Failure to give notice or any defect in the notice to any Holder shall not affect the
validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price.
On or before 11:00 a.m. Eastern Time on any Redemption Date, the Company shall deposit with
the Trustee or with the Paying Agent money sufficient to pay the Redemption Price of and accrued
interest on all Notes (or portions of Notes) to be redeemed on that date. The Trustee or the Paying
Agent shall promptly return to the 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
interest on, all Notes to be redeemed.
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, whether or not such Notes are presented for payment. If a Note is redeemed on or after
a Record Date but
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on or prior to the related Interest Payment Date, then any accrued and unpaid interest shall
be paid to the Person in whose name such Note was registered at the close of business on such
Record Date. If any Note called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding paragraph, interest shall be
paid on the unpaid principal from the Redemption Date until such principal is paid, and to the
extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided
in the Notes and in Section 4.01 hereof.
SECTION 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall issue and, upon the
Company’s written request, the Trustee shall authenticate for the Holder at the expense of the
Company a new Note equal in principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.07. Optional Redemption for the Notes.
Except as set forth in subparagraphs (a), (b) and (d) below, the Notes are not redeemable
before April 15, 2014.
(a) At any time prior to April 15, 2014, the Company may, at its option, redeem all or
part of the Notes (which includes Additional Notes, if any), at a Redemption Price equal to 100% of
the principal amount of Notes redeemed plus the Applicable Premium for the Notes, as of, plus
accrued and unpaid interest, if any, to (but not including) the Redemption Date (subject to the
rights of Holders on the relevant record date to receive interest due on the relevant Interest
Payment Date).
(b) At any time prior to April 15, 2014, during any 12-month period commencing on the
Issue Date, the Company may, at its option, redeem up to 10% of the aggregate principal amount of
the Notes issued under this Indenture (calculated giving effect to any issuance of Additional
Notes) at a Redemption Price equal to 103% of the principal amount thereof, plus accrued and unpaid
interest, if any, to (but not including) the Redemption Date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant Interest Payment Date).
(c) On or after April 15, 2014, the Company may, at its option, redeem all or a part of
the Notes, at the Redemption Prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest, if any, thereon to the applicable Redemption Date, if redeemed
during the 12-month period beginning on April 15 of the years indicated below (subject to the right
of Holders of record on the relevant record date to receive interest due on the relevant Interest
Payment Date):
|
|
|
|
|
Year |
|
Redemption Price |
|
2014 |
|
|
105.063 |
% |
2015 |
|
|
103.375 |
% |
2016 |
|
|
101.688 |
% |
2017 and thereafter |
|
|
100.000 |
% |
(d) Notwithstanding the provisions of subparagraphs (a), (b) and (c) of this Section 3.07,
at any time prior to April 15, 2014, the Company may, at its option, on one or more occasions,
redeem up to 35% of the aggregate principal amount of Notes issued under this Indenture (which
includes the Additional Notes, if any) at a Redemption Price of 106.750% of the principal amount
thereof, plus accrued and unpaid interest, if any, to (but not including) the Redemption Date
(subject to the right of Holders of record on the relevant record date to receive interest due on
the relevant Interest Payment Date), with the Net Cash Proceeds of one or more Equity Offerings;
provided that:
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(1) at least 65% of the original aggregate principal amount of the Notes issued
under this Indenture (calculated after giving effect to any issuance of Additional Notes)
remains outstanding immediately after giving effect to such redemption; and
(2) any such redemption by the Company must be made within 90 days after the
closing of such Equity Offering.
(e) Any prepayment pursuant to this Section 3.07 shall be made pursuant to the provisions
of Sections 3.01 through 3.06 hereof.
(f) In connection with any redemption of Notes (including with the Net Cash Proceeds of an
Equity Offering), any such redemption may, at the Company’s discretion, be subject to one or more
conditions precedent, including any related Equity Offering. In addition, if such redemption or
notice is subject to satisfaction of one or more conditions precedent, such notice shall state
that, in the Company’s discretion, the redemption date may be delayed until such time as any or all
such conditions shall be satisfied, or such redemption may not occur and such notice may be
rescinded in the event that any or all such conditions shall not have been satisfied by the
redemption date, or by the redemption date so delayed.
SECTION 3.08. Mandatory Redemption.
Except as set forth in Sections 4.05 and 4.17 hereof, the Company shall not be required to
make mandatory redemption or sinking fund payments with respect to the Notes.
ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Notes.
The Company shall pay the principal of and interest on the Notes in the manner provided in the
Notes. An installment of principal of or interest on the Notes shall be considered paid on the
date it is due if the Trustee or Paying Agent holds on that date U.S. Legal Tender designated for
and sufficient to pay the installment.
The Company shall pay, to the extent such payments are lawful, interest on overdue principal
and it shall pay interest on overdue installments of interest (without regard to any applicable
grace periods) from time to time on demand at the same rate per annum borne by the Notes. Interest
will be computed on the basis of a 360-day year comprised of twelve 30-day months.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain an office or agency required under Section 2.03. The Company shall
give prompt written notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.
The Company hereby initially designates the Corporate Trust Office as its office or agency.
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SECTION 4.03. Limitation on Incurrence of Additional Indebtedness.
(a) The Company will not, and will not permit any of the Restricted Subsidiaries to, Incur
any Indebtedness; provided, however, that if no Default or Event of Default shall
have occurred and be continuing at the time of or as a consequence of the Incurrence of any such
Indebtedness, the Company or any Subsidiary Guarantor may Incur Indebtedness (including, without
limitation, Acquired Indebtedness) if on the date of the Incurrence of such Indebtedness, after
giving effect to the Incurrence thereof, the Consolidated Fixed Charge Coverage Ratio of the
Company would be at least 2.0 to 1.0.
(b) Nothing contained in Section 4.03(a) shall prohibit the Incurrence of any of the
following items of Indebtedness (collectively, “Permitted Indebtedness”):
(1) Indebtedness of the Company or any Restricted Subsidiary Incurred pursuant to a
Credit Facility in an aggregate principal amount at any time outstanding not to exceed the
greatest of:
(x) $1,250.0 million (reduced by any required permanent repayments with the
proceeds of Asset Sales (which are accompanied by a corresponding permanent
commitment reduction) thereunder);
(y) the sum of (A) 80% of the net book value of the accounts receivable of
the Company and the Restricted Subsidiaries and (B) 60% of the net book value of the
inventory of the Company and the Restricted Subsidiaries as of the date of such
Incurrence; or
(z) 2.5 times the Consolidated EBITDA of the Company during the four fiscal
quarters ended on or prior to the Incurrence of such Indebtedness, calculated on a
pro forma basis consistent with the calculation of Consolidated EBITDA for purposes
of the definition of Consolidated Fixed Charge Coverage Ratio;
(2) Indebtedness of the Company or any Restricted Subsidiary outstanding on the
Issue Date (other than Indebtedness referenced in clauses (1) and (3) of this Section
4.03(b));
(3) Indebtedness represented by the Notes (other than Additional Notes, but
including the Exchange Securities);
(4) Indebtedness represented by (i) any Sale and Leaseback Transaction or (ii)
Capitalized Lease Obligations, mortgage financings or purchase money obligations, in each
case in this subclause (ii), Incurred for the purpose of financing all or any part of the
purchase price or cost of construction, improvement, repair or replacement of property (real
or personal), plant or equipment (whether through the direct purchase of assets or the
Capital Stock of any Person owning such assets) used in the business of the Company or such
Subsidiary Guarantor (including any reasonably related fees, expenses, taxes or other
transaction costs Incurred in connection with such acquisition, construction or
improvement), in an aggregate amount pursuant to this clause (4), including all Refinancing
Indebtedness Incurred to refund, refinance or replace any Indebtedness Incurred pursuant to
this clause (4), not to exceed at any time outstanding the greater of $300.0 million and 6%
of Total Assets;
(5) Refinancing Indebtedness in exchange for, or the net cash proceeds of which are
used to refund, refinance or replace Indebtedness that was permitted by this Indenture to be
Incurred under Section 4.03(a) (it being understood that no Indebtedness outstanding on the
Issue
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Date has been Incurred pursuant to such paragraph) or clauses (2), (3), (5), (10) or
(11) of this Section 4.03(b);
(6) the Incurrence by the Company or any Restricted Subsidiary of Indebtedness
owing to and held by the Company or any Restricted Subsidiary; provided,
however, that:
(A) if the Company or any Subsidiary Guarantor is the obligor on such
Indebtedness, such Indebtedness must be unsecured and expressly subordinated in
right of payment to the prior payment in full in cash of all Obligations with
respect to the Notes, in the case of the Company, or the Note Guarantee, in the case
of a Subsidiary Guarantor; and
(B) any event that results in any such Indebtedness being held by a Person
other than the Company or a Restricted Subsidiary (except for any pledge of such
Indebtedness constituting a Permitted Lien until the pledgee commences actions to
foreclose on such Indebtedness) will be deemed, in each case, to constitute an
Incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the
case may be, that was not permitted by this clause (6);
(7) the Guarantee by the Company or any Restricted Subsidiary of Indebtedness of
the Company or a Restricted Subsidiary that was permitted to be Incurred by another
provision of this Section 4.03;
(8) Hedging Obligations that are not Incurred for speculative purposes;
(9) Indebtedness arising from agreements providing for indemnification, adjustment
of purchase price, earn out or similar obligations, or Guarantees or letters of credit,
surety bonds or performance bonds securing any obligations of the Company or any Restricted
Subsidiary pursuant to such agreements, in any case Incurred in connection with the
acquisition or disposition of any business or assets, including the Capital Stock of a
Restricted Subsidiary, other than guarantees of Indebtedness Incurred by any Person
acquiring all or any portion of such business or assets, including the Capital Stock, for
the purpose of financing or in contemplation of any such acquisition; provided that
(a) any amount of such obligations included on the face of the balance sheet of the Company
or any Restricted Subsidiary shall not be permitted under this clause (9) (contingent
obligations referred to on the face of a balance sheet or in a footnote thereto and not
otherwise quantified and reflected on the balance sheet will not be deemed “included on the
face of the balance sheet” for purposes of the foregoing) and (b) in the case of a
disposition, the maximum aggregate liability in respect of all such obligations outstanding
under this clause (9) shall at no time exceed the gross proceeds actually received by the
Company and the Restricted Subsidiaries in connection with such disposition;
(10) Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior
to the date on which such Restricted Subsidiary was merged with or into or acquired by the
Company or a Restricted Subsidiary (other than Indebtedness Incurred in contemplation of, in
connection with, as consideration in, or to provide all or any portion of the funds or
credit support utilized to consummate, the transaction or series of related transactions
pursuant to which such Restricted Subsidiary became a subsidiary of or was otherwise
acquired by the Company); provided, however, that (i) the Company would have
been able to Incur $1.00 of additional Indebtedness pursuant to the foregoing paragraph (a)
after giving effect to the Incurring of such Indebtedness, pursuant to this clause (10) or
(ii) the Consolidated Fixed Charge Coverage Ratio immediately
-41-
after giving effect to such Incurrence and related transaction would be equal to or
greater than such ratio immediately prior to such transaction;
(11) Indebtedness of the Company or a Restricted Subsidiary in an amount, including
all Refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness
Incurred pursuant to this clause (11), not to exceed $50.0 million Incurred in contemplation
of, in connection with, as consideration in, or to provide all or any portion of the funds
or credit support utilized to consummate, the transaction or series of related transactions
pursuant to which such Restricted Subsidiary became a Subsidiary of or was otherwise
acquired by the Company whether by means of the acquisition of assets or the Capital Stock
of such entity or by merger; provided, however, that (i) the Company would
have been able to Incur $1.00 of additional Indebtedness pursuant to the foregoing paragraph
(a) after giving effect to the Incurrence of such Indebtedness pursuant to this clause (11)
or (ii) the Consolidated Fixed Charge Coverage Ratio immediately after giving effect to such
Incurrence and related transaction would be equal to or greater than such ratio immediately
prior to such transaction;
(12) Indebtedness (a) arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument drawn against insufficient funds in the
ordinary course of business, provided, however, that such Indebtedness is
extinguished within five Business Days of its Incurrence, (b) incurred in the ordinary
course of business in connection with cash pooling, netting and cash management arrangements
consisting of overdrafts or similar arrangements; provided that any such
Indebtedness does not consist of Indebtedness for borrowed money and is owed to the
financial institutions providing such arrangements and such Indebtedness is extinguished in
accordance with customary practices with respect thereto, (c) arising out of the issuance of
surety, stay, customs or appeal bonds, performance bonds and performance and completion
guaranties, in each case incurred in the ordinary course of business, (d) consisting of the
financing of insurance premiums in the ordinary course of business with the providers of
such insurance or their Affiliates or (e) take or pay obligations contained in supply
arrangements in the ordinary course of business;
(13) Indebtedness constituting reimbursement obligations with respect to letters of
credit or bankers’ acceptances issued in the ordinary course of business, including letters
of credit in respect of performance, surety or appeal bonds, workers’ compensation claims,
health, disability or other benefits to employees or former employees or their families or
property, casualty or liability insurance or self-insurance, and letters of credit in
connection with the maintenance of, or pursuant to the requirements of, environmental or
other permits or licenses from governmental authorities, or other Indebtedness with respect
to reimbursement obligations regarding workers’ compensation claims;
(14) Indebtedness to the extent the net cash proceeds thereof are promptly
deposited to defease or to satisfy and discharge the Notes as described in Sections 8.01 and
8.02;
(15) Indebtedness in a Qualified Receivables Transaction that is without recourse
to the Company or to any other Subsidiary of the Company or their assets (other than a
Receivables Entity and its assets and, as to the Company or any Restricted Subsidiary of the
Company, other than pursuant to Standard Receivables Undertakings) and is not guaranteed by
any such Person;
(16) the Guarantee of Obligations and other obligations in respect of the
Indebtedness of joint ventures which do not qualify as Subsidiaries in an amount not to
exceed $50.0 million at any one time outstanding;
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(17) Indebtedness in respect of obligations with respect to letters of credit
issued pursuant to the Postpetition Letter of Credit Facility not to exceed $15.0 million at
any time outstanding;
(18) Indebtedness of Foreign Subsidiaries and Subsidiaries of Foreign Subsidiaries
of the Company in an aggregate principal amount not to exceed $500.0 million at any one time
outstanding, including all Refinancing Indebtedness Incurred to refund, refinance or replace
any Indebtedness Incurred pursuant to this clause (18); or
(19) additional Indebtedness in an aggregate amount at any one time outstanding,
including all Refinancing Indebtedness Incurred to refund, refinance or replace any
Indebtedness Incurred pursuant to this clause (19), not to exceed the greater of $400.0
million and 7.5% of Total Assets.
(c) For purposes of determining compliance with any U.S. dollar-denominated restriction on
the Incurrence of Indebtedness, the U.S. dollar equivalent principal amount of Indebtedness
denominated in a foreign currency shall be calculated based on the relevant currency exchange rate
in effect on the date such Indebtedness was Incurred (or first committed, in the case of revolving
credit debt); provided that if such Indebtedness is Incurred to refinance other
Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable
U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange
rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be
deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness
does not exceed the principal amount of such Indebtedness being refinanced.
The principal amount of any Indebtedness Incurred to refinance other Indebtedness, if Incurred
in a different currency from the Indebtedness being refinanced, shall be calculated based on the
currency exchange rate applicable to the currencies in which such respective Indebtedness is
denominated that is in effect on the date of such refinancing.
(d) For purposes of determining compliance with Section 4.03, in the event that any
proposed Indebtedness (or any portion thereof) meets the criteria of more than one of the
categories described in Sections 4.03(b)(1) through 4.03(b)(19), or is entitled to be Incurred
pursuant to Section 4.03(a), the Company will be permitted to divide, classify, and may later
reclassify, such item of Indebtedness or a part thereof in any manner that complies with Section
4.03. Notwithstanding the foregoing, Indebtedness under the Credit Agreement will be deemed to have
been Incurred on such date in reliance on the exception provided by Section 4.03(b)(1).
(e) The Company and the Subsidiary Guarantors shall not Incur or suffer to exist any
Indebtedness that is subordinated in right of payment to any other Indebtedness of the Company or
the Subsidiary Guarantors unless such Indebtedness is at least equally subordinated in right of
payment to the Notes and any Note Guarantee.
SECTION 4.04. Limitation on Restricted Payments.
(a) The Company shall not, and shall not cause or permit any Restricted Subsidiary to,
directly or indirectly:
(1) declare or pay any dividend or make any distribution (other than dividends or
distributions payable in Qualified Capital Stock of the Company) on or in respect of shares
of its
-00-
Xxxxxxx Xxxxx to holders of such Capital Stock other than the Company or any of its
Restricted Subsidiaries;
(2) purchase, redeem or otherwise acquire or retire for value any Capital Stock of
the Company;
(3) make any principal payment on, or purchase, redeem, defease, retire or
otherwise acquire for value, prior to any scheduled principal payment, sinking fund or
maturity, any Subordinated Indebtedness (other than the principal payment on, or the
purchase, redemption, defeasance, retirement or other acquisition for value of, (i)
Subordinated Indebtedness made in satisfaction of or anticipation of satisfying a sinking
fund obligation, principal installment or final maturity within one year of the due date of
such obligation, installment or final maturity) and (ii) Indebtedness permitted under
Section 4.03(b)(6); or
(4) make any Investment (other than Permitted Investments);
(each of the foregoing actions set forth in clauses 4.04(a)(1), (2), (3) and (4) being referred to
as a “Restricted Payment”), if at the time of such Restricted Payment or immediately after
giving effect thereto:
(A) a Default or an Event of Default shall have occurred and be continuing;
(B) the Company is not able to Incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) in compliance with Section 4.03; or
(C) the aggregate amount of Restricted Payments (including such proposed Restricted
Payment) made after the Issue Date (the amount expended for such purpose, if other than in
cash, being the Fair Market Value of such property) shall exceed the sum of:
(i) 50% of the cumulative Consolidated Net Income (or if cumulative
Consolidated Net Income shall be a loss, minus 100% of such loss) of the Company
earned during the period beginning on the first day of the fiscal quarter commencing
on April 1, 2011 and through the end of the most recent fiscal quarter for which
financial statements are available prior to the date such Restricted Payment occurs
(the “Reference Date”) (treating such period as a single accounting period);
plus
(ii) 100% of the aggregate net cash proceeds received by the Company from
any Person (other than a Subsidiary of the Company) since the Issue Date as a
contribution to its common equity capital or from the issuance and sale of Qualified
Capital Stock of the Company or from the issuance of Indebtedness of the Company
subsequent to the Issue Date that has been converted into or exchanged for Qualified
Capital Stock of the Company on or prior to the Reference Date; plus
(iii) an amount equal to the sum of (1) the net reduction in the
Investments (other than Permitted Investments) made by the Company or any Restricted
Subsidiary in any Person after the Issue Date resulting from repurchases, repayments
or redemptions of such Investments by such Person, proceeds realized on the sale of
such Investment and proceeds representing the return of capital, in each case
received by the Company or any Restricted Subsidiary and (2) the amount of any
Guarantee or similar arrangement that has terminated or expired or by which it has
been reduced to the extent that it was treated as a Restricted Payment after the
Issue Date that reduced the amount available under this Section 4.04(a)(C) or clause
(3) of Section 4.04(b) net of any amounts paid by the
-44-
Company or a Restricted Subsidiary in respect of such Guarantee or similar
arrangement; provided, however, that the amounts set forth in
clauses (i) and (ii) above shall not exceed, in the case of any such Person, the
amount of Investments (excluding Permitted Investments) previously made and treated
as a Restricted Payment by the Company or any Restricted Subsidiary after the Issue
Date that reduced the amount available under this Section 4.04(a)(C) or clause (12)
of Section 4.04(b) in such Person or Unrestricted Subsidiary.
(b) Notwithstanding the foregoing, the provisions set forth in the immediately preceding
paragraph do not prohibit:
(1) the payment of any dividend or the consummation of any irrevocable redemption
within 60 days after the date of declaration of such dividend or giving notice of such
redemption, as the case may be, if the dividend or redemption would have been permitted on
the date of declaration or notice;
(2) a Restricted Payment, either (i) solely in exchange for shares of Qualified
Capital Stock of the Company or (ii) through the application of net proceeds of a
substantially concurrent sale for cash (other than to a Subsidiary of the Company) of shares
of Qualified Capital Stock of the Company or substantially concurrent cash contribution to
the common equity of the Company;
(3) so long as no Default or Event of Default shall have occurred and be
continuing, repurchases, redemptions or other acquisitions of Capital Stock (or rights or
options therefor) of the Company from current or former officers, directors, employees or
consultants pursuant to equity ownership or compensation plans or stockholders agreements
not to exceed $50.0 million in the aggregate subsequent to the Issue Date;
(4) dividends and distributions paid on Capital Stock (other than Disqualified
Capital Stock or Preferred Stock) of a Restricted Subsidiary on a pro rata basis or on a
basis more favorable to the Company;
(5) the repurchase, redemption or other acquisition or retirement for value of any
Subordinated Indebtedness pursuant to Section 4.05 and Section 4.17; provided that
the Company shall have made a Change of Control Offer or Net Proceeds Offer, as applicable,
to purchase the notes on the terms provided in this Indenture applicable to Change of
Control Offers or Net Proceeds Offers, respectively, and all notes validly tendered by
Holders in such Change of Control Offer or Net Proceeds Offer, as applicable, have been
repurchased, redeemed, acquired or retired for value to the extent required by this
Indenture;
(6) the declaration and payment of dividends to holders of any class or series of
Disqualified Capital Stock of the Company or Disqualified Capital Stock or Preferred Stock
of any Restricted Subsidiary issued in accordance with Section 4.03; provided that
such dividends are included in Consolidated Fixed Charges; and payment of any mandatory
Redemption Price or liquidation value of any such Disqualified Capital Stock or Preferred
Stock when due in accordance with its terms in effect upon the issuance of such Disqualified
Capital Stock or Preferred Stock;
(7) any purchase, redemption, defeasance, retirement, payment or prepayment of
principal of Subordinated Indebtedness either (i) solely in exchange for shares of Qualified
Capital Stock of the Company, (ii) through the application of net proceeds of a
substantially concurrent
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sale for cash (other than to a Subsidiary of the Company) of shares of Qualified
Capital Stock of the Company or (iii) Refinancing Indebtedness;
(8) repurchases of Capital Stock deemed to occur upon the exercise or vesting of
stock options, restricted stock, stock appreciation and restricted stock units if the
Capital Stock represents all or a portion of the exercise price thereof or related
withholding taxes
(9) the payment of cash in lieu of the issuance of fractional shares of Capital
Stock;
(10) the purchase, redemption, acquisition, cancellation or other retirement for a
nominal value per right of any rights granted to all the holders of Capital Stock of the
Company pursuant to any shareholders’ rights plan adopted for the purpose of protecting
shareholders from unfair takeover tactics; provided that any such purchase,
redemption, acquisition, cancellation or other retirement of such rights is not for the
purpose of evading the limitations of this covenant (all as determined in good faith by a
senior financial officer of the Company);
(11) Restricted Payments if, at the time of making such payments, and after giving
effect thereto (including, without limitation, the Incurrence of any Indebtedness to finance
such payment), the Total Leverage Ratio would not exceed 3.00 to 1.00; provided,
however, that at the time of each such Restricted Payment, no Default or Event of
Default shall have occurred and be continuing (or result therefrom); and
(12) other Restricted Payments in an amount not to exceed $400.0 million in the
aggregate since the Issue Date.
(c) In determining the aggregate amount of Restricted Payments made subsequent to the
Issue Date in accordance with Section 4.04(a)(C), amounts expended pursuant to clauses (1) (without
duplication for the declaration of the relevant dividend), (2)(ii), (7)(ii), (11) and (12) of
Section 4.04(b) shall be included in such calculation.
(d) The amount of all Restricted Payments (other than cash) will be the Fair Market Value
on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or
issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment.
SECTION 4.05. Limitation on Asset Sales.
(a) The Company will not, and will not permit any Restricted Subsidiary to, consummate an
Asset Sale unless:
(1) the Company or the applicable Restricted Subsidiary, as the case may be,
receives consideration at the time of such Asset Sale at least equal to the Fair Market
Value of the assets sold or otherwise disposed of;
(2) at least 75% of the consideration received by the Company or the Restricted
Subsidiary, as the case may be, from such Asset Sale shall be in the form of cash or Cash
Equivalents and is received at the time of such disposition (for purposes of this clause (2)
only, (A) the assumption by the purchaser of Indebtedness or other obligations (other than
Subordinated Indebtedness or intercompany obligations) that releases the Company or a
Restricted Subsidiary from future liability pursuant to a customary written novation
agreement, (B) instruments or securities received from the purchaser that are promptly, but
in any event within 90 days of the closing, converted by the Company to cash, to the extent
of the cash actually so received, (C) the Fair
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Market Value of any Replacement Assets received by the Company or any Restricted
Subsidiary, and (D) any Designated Non-cash Consideration received by the Company or any of
its Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market Value, taken
together with all other Designated Non-cash Consideration received pursuant to this clause
(D) that is at that time outstanding, not to exceed $150.0 million (with the Fair Market
Value of each item of Designated Non-cash Consideration being measured at the time received
and without giving effect to subsequent changes in value) shall be considered cash received
at closing; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such
Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365
days after receipt thereof either (A) to prepay any secured Indebtedness of the Company or a
Restricted Subsidiary and, in the case of any such Indebtedness under any revolving credit
facility, effect a permanent reduction in the availability under such revolving credit
facility (or effect a permanent reduction in availability under such revolving credit
facility, regardless of the fact that no prepayment is required), (B) to acquire Replacement
Assets, or (C) a combination of prepayment and investment permitted by the foregoing clauses
(3)(A) and (3)(B); provided that the Company and its Restricted Subsidiaries will be
deemed to have complied with this clause (3) if and to the extent that, within 365 days
after the Asset Sale that generated the Net Cash Proceeds, the issuer has entered into and
not abandoned or rejected a binding agreement to consummate any such investment described in
this clause (3), and such investment is thereafter completed within 180 days after the end
of such 365-day period.
Pending the final application of the Net Cash Proceeds, the Company and the Restricted Subsidiaries
may invest such Net Cash Proceeds in any manner not prohibited by this Indenture.
(b) On the day after the expiration of the period specified above or such earlier date, if
any (each, a “Net Proceeds Offer Trigger Date”), as a Responsible Officer of the Company or
of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset
Sale as set forth in clauses (3)(A), (3)(B) and (3)(C) of Section 4.05(a), such aggregate amount of
Net Cash Proceeds (each, a “Net Proceeds Offer Amount”) which have not been applied on or
before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(A), (3)(B) and (3)(C) of
Section 4.05(a) shall be applied by the Company to make an offer to purchase (the “Net Proceeds
Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more
than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders on a pro
rata basis, that principal amount of Notes equal to the Net Proceeds Offer Amount at a price equal
to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest, if
any, thereon to the date of purchase; provided, however, that if the Company elects
(or is required by the terms of any Indebtedness that ranks pari passu with the Notes), such Net
Proceeds Offer may be made ratably to purchase the Notes and such pari passu Indebtedness.
(c) If at any time any non-cash consideration received by the Company or any Restricted
Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold or
otherwise disposed of for cash (other than interest received with respect to any such non-cash
consideration) or Cash Equivalents, then such conversion or disposition shall be deemed to
constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance
with this Section 4.05.
(d) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized
Net Proceeds Offer Amount equal to or in excess of $100.0 million resulting from one or more Asset
Sales or deemed Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and
not just the amount in excess of $100.0 million, shall be applied as required pursuant to this
paragraph). The first
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such date the aggregate unutilized Net Proceeds Offer Amount is equal to or in excess of
$100.0 million shall be treated for this purpose as the Net Proceeds Offer Trigger Date.
(e) Notice of each Net Proceeds Offer will be mailed or caused to be mailed, by first
class mail, by the Company within 30 days following the Net Proceeds Offer Trigger Date to all
record Holders as shown on the register of Holders, with a copy to the Trustee. The notice shall
contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to
the Net Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.05 and
that the Holders may elect to tender their Notes in whole or in part in denominations of
$2,000 and integral multiples of $1,000 in excess thereof for cash; provided,
however, that if the aggregate principal amount of Notes properly tendered in a Net
Proceeds Offer exceeds the Net Proceeds Offer Amount, Notes of tendering Holders will be
purchased on a pro rata basis (based on amounts tendered);
(2) the purchase price (including the amount of accrued interest, if any) and the
Net Proceeds Offer Payment Date (which shall be at least 20 Business Days from the date of
mailing of notice of such Net Proceeds Offer, or such longer period as required by law);
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor, any Note accepted
for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net
Proceeds Offer Payment Date;
(5) that Holders electing to have a Note purchased pursuant to a Net Proceeds Offer
will be required to surrender the Note, with the form entitled “Option of Holder To Elect
Purchase” on the reverse of the Note completed, to the Paying Agent at the address specified
in the notice prior to the close of business on the Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the Business Day prior to the Net Proceeds Offer Payment Date, a
facsimile transmission or letter setting forth the name of the Holder, the principal amount
of the Note the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased; and
(7) that Holders whose Notes are purchased only in part will be issued new Notes in
a principal amount equal to the unpurchased portion of the Notes surrendered.
(f) On or before the Net Proceeds Offer Payment Date, the Company shall (i) accept for
payment Notes or portions thereof tendered pursuant to the Net Proceeds Offer which are to be
purchased in accordance with Section 4.05(e)(1), (ii) deposit with the Paying Agent in accordance
with Section 2.14 U.S. Legal Tender sufficient to pay the purchase price plus accrued interest, if
any, of all Notes to be purchased and (iii) deliver to the Trustee Notes so accepted together with
an Officers’ Certificate stating the Notes or portions thereof being purchased by the Company. The
Paying Agent shall promptly mail to the Holders of Notes so accepted payment in an amount equal to
the purchase price plus accrued interest, if any. For purposes of this Section 4.05, the Trustee
shall act as the Paying Agent.
(g) To the extent that the aggregate amount of the Notes tendered pursuant to a Net
Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net
Proceeds Offer
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Amount for general corporate purposes or for any other purposes not prohibited by this
Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be
reset to zero. A Net Proceeds Offer shall remain open for a period of at least 20 Business Days or
such longer period as may be required by law.
(h) The Company will comply with all tender offer rules under state and federal securities
laws and regulations, including, but not limited to, Section 14(e) under the Exchange Act and Rule
14e-1 thereunder, to the extent applicable to such offer. To the extent that the provisions of any
securities laws or regulations conflict with this Section 4.05, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have breached its obligations
under this Section 4.05.
(i) The Trustee shall make such adjustments as are needed so that no unauthorized
denominations are purchased in part when the aggregate principal amount of Notes properly tendered
in a Net Proceeds Offer pursuant to this Section 4.05 exceeds the Net Proceeds Offer Amount and
Notes of tendering Holders are purchased on a pro rata basis (based on amounts tendered). Each
Notice of Net Proceeds Offer required pursuant to this Section 4.05 shall state that such
adjustments may be made under such circumstances.
SECTION 4.06. Corporate Existence.
Except as otherwise permitted by Article V, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate existence and the
corporate, partnership or other existence of each of the Restricted Subsidiaries in accordance with
the respective organizational documents of each Restricted Subsidiary and the rights (charter and
statutory) and material franchises of the Company and each of its Restricted Subsidiaries;
provided, however, that the Company shall not be required to preserve any such
right or franchise, or the corporate existence of any Restricted Subsidiary, 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 and its Restricted Subsidiaries, taken as a whole, and
that the loss thereof would not have a material adverse effect on the Company and its Restricted
Subsidiaries taken as a whole.
SECTION 4.07. Reports to Trustee.
(a) The Company will deliver to the Trustee within 120 days after the end of each fiscal
year an Officers’ Certificate stating that the Company has fulfilled its obligations hereunder or,
if there has been a Default, specifying the Default and its nature and status.
(b) The Company shall deliver to the Trustee as soon as possible and in any event within
30 days after the Company becomes aware of the occurrence of a Default, an Officers’ Certificate
setting forth the details of the Default, and the action which the Company proposes to take with
respect thereto.
SECTION 4.08. Compliance with Laws.
The Company shall comply, and shall cause each of the Restricted Subsidiaries to comply, with
all applicable statutes, rules, regulations, orders and restrictions of the United States of
America, all states and municipalities thereof, and of any governmental department, commission,
board, regulatory authority, bureau, agency and instrumentality of the foregoing, in respect of the
conduct of their respective businesses and the ownership of their respective properties, except for
such noncompliances as would not in the aggregate have a material adverse effect on the financial
condition or results of operations of the Company and the Restricted Subsidiaries taken as a whole.
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SECTION 4.09. Reports to Holders.
(a) Notwithstanding that the Company may not be subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, to the extent permitted by the Exchange Act, the Company
will file with the Commission, and provide to the Trustee and the Holders of the Notes, the annual
and quarterly reports and the information, documents and other reports (or copies of such portions
of any of the foregoing as the Commission may by rules and regulations prescribe) that are
specified in Sections 13 and 15(d) of the Exchange Act within the time periods required;
provided, however, that availability of the foregoing materials on the Commission’s
XXXXX service shall be deemed to satisfy the Company’s delivery obligations hereunder;
provided, further, that the Trustee shall have no liability or responsibility
whatsoever to determine if such materials have been made so available. In the event that the
Company is not permitted to file such reports, documents and information with the Commission
pursuant to the Exchange Act, the Company will nevertheless provide such Exchange Act information
to the Trustee and the Holders of the Notes as if the Company were subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act within the time periods required by law.
(b) Notwithstanding anything in this Indenture, the Company will not be deemed to have
failed to comply with any of its obligations under clause (a) of this Section 4.09 for purposes of
Section 6.01(a)(3) until 90 days after the date any report hereunder is due.
Delivery of such reports, information and documents to the Trustee pursuant to this Section
4.09 is for informational purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers’ Certificates).
SECTION 4.10. Waiver of Stay, Extension or 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
or extension law or any usury law or other law that would prohibit or forgive the Company from
paying all or any portion of the principal of and/or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture, and (to the extent that it may lawfully do so) the Company hereby
expressly waives all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
SECTION 4.11. Limitation on Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.
(a) The Company will not, and will not cause or permit any Restricted Subsidiary to,
directly or indirectly, create or otherwise cause or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on or in respect of its Capital
Stock;
(2) make loans or advances or to pay any Indebtedness or other obligation owed to
the Company or any other Restricted Subsidiary; or
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(3) transfer any of its property or assets to the Company or any other Restricted
Subsidiary;
except for such encumbrances or restrictions existing under or by reason of:
(A) applicable law, rule, regulation or order;
(B) this Indenture;
(C) the Credit Agreement and/or the documentation for the Credit Agreement;
(D) customary non-assignment provisions of any contract, agreement, license, permit
or lease;
(E) any instrument governing Acquired Indebtedness, which encumbrance or
restriction is not applicable to any Person, or the properties or assets of any Person,
other than the Person or the properties or assets of the Person so acquired;
(F) agreements existing on the Issue Date to the extent and in the manner such
agreements are in effect on the Issue Date;
(G) any other agreement entered into after the Issue Date which contains
encumbrances and restrictions which are not materially more restrictive with respect to any
Restricted Subsidiary than those in effect with respect to such Restricted Subsidiary
pursuant to agreements as in effect on the Issue Date;
(H) any instrument governing Indebtedness of a Foreign Subsidiary or a Subsidiary
of a Foreign Subsidiary;
(I) Liens permitted to be incurred pursuant to Section 4.13 and associated
agreements that limit the right of the debtor to dispose of the assets subject to such
Liens;
(J) secured Indebtedness otherwise permitted to be Incurred pursuant to Section
4.03 and Section 4.13 that limit the right of the debtor to dispose of the assets securing
such Indebtedness;
(K) any agreement governing the sale or disposition of any Restricted Subsidiary or
all or substantially all of the assets of any Restricted Subsidiary which restricts
dividends and distributions of such Restricted Subsidiary pending such sale or disposition;
(L) customary provisions in partnership agreements, limited liability company
organizational governance documents, joint venture and other similar agreements entered into
in the ordinary course of business;
(M) consisting of restrictions on cash or other deposits or net worth imposed by
customers, suppliers or landlords under contracts entered into in the ordinary course of
business;
(N) customary restrictions on dispositions of real property interests found in
reciprocal easement agreements;
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(O) consisting of customary restrictions pursuant to any Qualified Receivables
Transaction;
(P) provisions in instruments governing other Indebtedness of Restricted
Subsidiaries permitted to be Incurred after the Issue Date; provided that (i) such
provisions are customary for instruments of such type (as determined in good faith by a
Responsible Officer of the Company) and (ii) a Responsible Officer of the Company determines
in good faith that such restrictions will not materially adversely impact the ability of the
Company to make required principal and interest payments on the Notes;
(Q) any encumbrances or restrictions imposed by any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or refinancings of
the contracts, instruments or obligations referred to in clauses (B), (C), (E), (F) and (G)
above; provided that such amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings are, in the good faith
judgment of the Company, no more restrictive with respect to such dividend restrictions and
other encumbrances than those contained prior to such amendment, modification, restatement,
renewal, increase, supplement, refunding, replacement or refinancing; and
(R) restrictions or conditions contained in any trading, netting, operating,
construction, service, supply, purchase or other agreement to which the Company or any of
its Restricted Subsidiaries is a party entered into in the ordinary course of business;
provided that such agreement prohibits the encumbrance of solely the property or
assets of the Company or such Restricted Subsidiary that are the subject of such agreement,
the payment rights arising thereunder or the proceeds thereof and does not extend to any
other asset or property of the Company or such Restricted Subsidiary or the assets or
property of any other Restricted Subsidiary.
For purposes of determining compliance with this covenant, (i) the priority of any Preferred Stock
in receiving dividends or liquidating distributions prior to dividends or liquidating distributions
being paid on common stock shall not be deemed a restriction on the ability to make distributions
on Capital Stock and (ii) the subordination of loans or advances made to the Company or a
Restricted Subsidiary of the Company to other Indebtedness Incurred by the Company or any such
Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
SECTION 4.12. Limitation on Issuances of Capital Stock of Restricted Subsidiaries.
Except as permitted pursuant to Section 4.03 and Section 4.05, the Company will not permit any
Restricted Subsidiary to issue any Preferred Stock (other than to the Company or to a Restricted
Subsidiary) or permit any Person (other than the Company or a Restricted Subsidiary) to own any
Preferred Stock of any Restricted Subsidiary.
SECTION 4.13. Limitation on Liens.
The Company will not, and will not cause or permit any Restricted Subsidiary to, directly or
indirectly, create, Incur, assume or permit or suffer to exist any Liens of any kind against or
upon any property or assets of the Company or any Restricted Subsidiary, whether now owned or
hereafter acquired, or any proceeds therefrom, or assign or otherwise convey any right to receive
income or profits therefrom unless:
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(1) in the case of Liens securing Indebtedness that is expressly subordinate or
junior in right of payment to the Notes or a Note Guarantee, the Notes or such Note
Guarantee is secured by a Lien on such property, assets or proceeds that is senior in
priority to such Liens; and
(2) in all other cases, the Notes are equally and ratably secured, except for:
(A) Liens existing as of the Issue Date to the extent and in the manner
such Liens are in effect on the Issue Date and any modification, replacement,
renewal or extension thereof so long as limited to all or part of the same property
or assets (plus improvements, accessions, proceeds, dividends or distributions in
respect thereof);
(B) Liens securing the Notes or any Note Guarantee;
(C) Liens in favor of the Company or any Subsidiary Guarantor;
(D) Liens securing Refinancing Indebtedness which is Incurred to Refinance
any Indebtedness (including, without limitation, Acquired Indebtedness) secured by a
Lien at such time permitted under this Indenture and which has been Incurred in
accordance with the provisions of this Indenture; provided, however,
that such Liens:
(i) are no less favorable to Holders of the Notes and are not more
favorable to the lienholders with respect to such Liens than the Liens in
respect of the Indebtedness being Refinanced; and
(ii) do not extend to or cover any property or assets of the
Company or any of its Restricted Subsidiaries not securing the Indebtedness
so Refinanced; and
(E) Permitted Liens.
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SECTION
4.14. Limitation on Transactions with Affiliates. |
(a) The Company will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, enter into or permit to exist any transaction or series of related transactions
(including, without limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with, or for the benefit of, any of its Affiliates (each, an
“Affiliate Transaction”) involving aggregate payment or consideration in excess of $15.0
million, other than:
(1) Affiliate Transactions permitted under paragraph (b) below; and
(2) Affiliate Transactions on terms that are not materially less favorable than
those that would have reasonably been expected in a comparable transaction at such time on
an arm’s-length basis from a Person that is not an Affiliate of the Company or such
Restricted Subsidiary.
All Affiliate Transactions (and each series of related Affiliate Transactions which are
similar or part of a common plan) involving aggregate payments or other property with a Fair Market
Value in excess of $25.0 million shall be approved by the Board of Directors of the Company or such
Restricted Subsidiary, as the case may be, such approval to be evidenced by a Board Resolution
stating that such Board of Directors has determined that such transaction complies with the
foregoing provisions. If the Company or any Restricted Subsidiary enters into an Affiliate
Transaction (or series of related Affiliate Transactions related to a common plan) on or after the
Issue Date that involves an aggregate Fair Market
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Value of more than $150.0 million, the Company or such Restricted Subsidiary, as the case may be,
shall, prior to the consummation thereof, obtain a favorable opinion as to the fairness of such
transaction or series of related transactions to the Company or the relevant Restricted Subsidiary,
as the case may be, from a financial point of view, from an Independent Financial Advisor and file
the same with the Trustee.
(b) The restrictions set forth in paragraph (a) above shall not apply to:
(1) employment, consulting and compensation arrangements and agreements of the
Company or any Restricted Subsidiary consistent with past practice or approved by a majority
of the disinterested members of the Board of Directors (or a committee comprised of
disinterested directors);
(2) fees and compensation paid to and indemnity provided on behalf of, officers,
directors, employees, consultants or agents of the Company or any Restricted Subsidiary as
determined in good faith by the Company’s Board of Directors or senior management;
(3) transactions exclusively between or among the Company and any Restricted
Subsidiary or exclusively between or among such Restricted Subsidiaries; provided
that such transactions are not otherwise prohibited by this Indenture;
(4) Restricted Payments, Permitted Investments (other than clauses (1) or (2)
thereof) or transactions involving Permitted Liens, in each case permitted by this
Indenture;
(5) transactions pursuant to any contract or agreement in effect on the Issue Date,
as amended, modified or replaced from time to time so long as the amended, modified or
replacements, taken as a whole, are no less favorable to the Company and its Restricted
Subsidiaries than those in effect on the Issue Date;
(6) the entering into of a customary agreement providing registration rights to the
direct or indirect shareholders of the Company and the performance of such agreements;
(7) the issuance of Capital Stock (other than Disqualified Capital Stock) of the
Company to any Person or any transaction with an Affiliate where the only consideration paid
by the Company or any Restricted Subsidiary is Capital Stock (other than Disqualified
Capital Stock) or any contribution to the common equity capital of the Company;
(8) pledges of Capital Stock of Unrestricted Subsidiaries;
(9) sales of Receivables Assets, or participations therein, or any related
transaction, in connection with any Qualified Receivables Transaction;
(10) (A) transactions with customers, clients, suppliers, joint venture partners
or purchasers or sellers of goods or services (including pursuant to a joint venture
agreement), or transactions otherwise relating to the purchase or sale of goods or services,
in each case in the ordinary course of business and otherwise in compliance with the terms
of this Indenture, (B) transactions with joint ventures or Unrestricted Subsidiaries entered
into in this ordinary course of business and consistent with past practice or industry norm
or (C) any management services or support agreement entered into on terms consistent with
past practice or industry norm, in each of clauses (A), (B) and (C) that are fair to the
Company or its Restricted Subsidiaries in the good faith determination of a Responsible
Officer of the Company or are on terms at least as favorable as might reasonably have been
obtained at such time from an unaffiliated party;
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(11) transactions between the Company or any of its Restricted Subsidiaries and any
Person that is an Affiliate solely because one or more of its directors or officers is also
a director of the Company or any direct or indirect parent of the Company; provided
that such director abstains from voting as a director of the Company or such direct or
indirect parent, as the case may be, on any matter involving such other Person;
(12) transactions with a Person (other than an Unrestricted Subsidiary) that is an
Affiliate of the Company or a Restricted Subsidiary solely because the Company or Restricted
Subsidiary owns, directly or through a Restricted Subsidiary, Capital Stock of or warrants,
options or other rights to acquire Capital Stock of, or controls, such Person;
(13) transactions permitted by, and complying with, the provisions of Section 5.01;
or
(14) the formation and maintenance of any consolidated group or subgroup for tax,
accounting or cash pooling or management purposes in the ordinary course of business;
provided that a Responsible Officer of the Company determines in good faith that the
formation and maintenance of such group or subgroup is in the best interests of the Company
and will not result in the Company and the Restricted Subsidiaries paying taxes in excess of
the tax liability that would have been payable by them on a stand-alone basis.
SECTION 4.15. Future Subsidiary Guarantors.
(a) If, on or after the Issue Date, any Restricted Subsidiary that is not a Subsidiary
Guarantor becomes an obligor under or guarantees any Credit Facility or capital markets debt
securities of the Company or a Subsidiary Guarantor (other than Indebtedness owing to the Company
or a Restricted Subsidiary) (“Guaranteed Indebtedness”), then the Company shall cause such
Restricted Subsidiary, to:
(1) execute and deliver to the Trustee a supplemental indenture in form reasonably
satisfactory to the Trustee pursuant to which such Restricted Subsidiary, shall
unconditionally Guarantee all of the Company’s obligations under the Notes and this
Indenture on the terms set forth in this Indenture; and
(2) execute and deliver to the Trustee an Opinion of Counsel (which may contain
customary exceptions) that such supplemental indenture has been duly authorized, executed
and delivered by such Restricted Subsidiary and constitutes a legal, valid, binding and
enforceable obligation of such Restricted Subsidiary.
(b) Thereafter, such Restricted Subsidiary shall be a Subsidiary Guarantor for all
purposes of this Indenture. The Company may cause any other Restricted Subsidiary of the Company
to issue a Note Guarantee and become a Subsidiary Guarantor.
(c) If the Guaranteed Indebtedness is pari passu with the Notes, then the Guarantee of
such Guaranteed Indebtedness shall be pari passu with the Note Guarantee. If the Guaranteed
Indebtedness is subordinated to the Notes, then the Guarantee of such Guaranteed Indebtedness shall
be subordinated to the Note Guarantee at least to the extent that the Guaranteed Indebtedness is
subordinated to the Notes.
(d) A Note Guarantee of a Subsidiary Guarantor will automatically terminate and be
released without any action required on the part of the Trustee or any Holder of the Notes upon:
(1) a sale or other disposition (including by way of consolidation or merger) of
such Subsidiary Guarantor after which such Subsidiary Guarantor is no longer a Subsidiary of
the
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Company or the sale or disposition of all or substantially all the assets of such
Subsidiary Guarantor (other than to the Company or a Subsidiary or an Affiliate of the
Company) otherwise permitted by this Indenture;
(2) such Subsidiary Guarantor’s becoming an Unrestricted Subsidiary in accordance
with the terms of this Indenture;
(3) the release or discharge of the Guarantee or security that required the
creation of such Note Guarantee and all other Guarantees of Indebtedness of the Company by
such Subsidiary Guarantor; provided that no Default or Event of Default has occurred
and is continuing or would result therefrom; or
(4) the legal defeasance or covenant defeasance in accordance with terms of this
Indenture or the satisfaction and discharge of this Indenture.
(e) The Company shall notify the Trustee and the Holders in writing if the Note Guarantee
of any Subsidiary Guarantor is released. The Trustee shall execute and deliver an appropriate
instrument confirming the release of any such Subsidiary Guarantor upon written request of the
Company as provided in this Indenture.
(f) At the Company’s written request, the Trustee will execute and deliver any instrument
evidencing such release. A Subsidiary Guarantor may also be released from its obligation under its
Note Guarantee in connection with a permitted amendment. See Article IX of this Indenture. The
Trustee shall only be obligated to deliver any such instrument upon receipt of an Officers’
Certificate stating that such release is authorized and in compliance with this Indenture.
SECTION 4.16. Limitation on Designations of Unrestricted Subsidiaries.
The Company may, on or after the Issue Date, designate any Subsidiary of the Company (other
than a Subsidiary of the Company which owns Capital Stock of a Restricted Subsidiary or is a
Subsidiary Guarantor) as an “Unrestricted Subsidiary” under this Indenture (a
“Designation”) only if:
(1) no Default or Event of Default shall have occurred and be continuing at the
time of or after giving effect to such Designation; and
(2) the Company would be permitted under this Indenture to make an Investment at
the time of Designation (assuming the effectiveness of such Designation) in an amount (the
“Designation Amount”) equal to the sum of (A) the Fair Market Value of the Capital
Stock of such Subsidiary owned by the Company and/or any of the Restricted Subsidiaries on
such date and (B) the aggregate amount of Indebtedness of such Subsidiary owed to the
Company and the Restricted Subsidiaries on such date.
In the event of any such Designation, the Company shall be deemed to have made an Investment
constituting a Restricted Payment in the Designation Amount pursuant to Section 4.04 for all
purposes of this Indenture.
The Company may revoke any Designation of a Subsidiary as an Unrestricted Subsidiary
(“Revocation”), whereupon such Subsidiary shall then constitute a Restricted Subsidiary,
if:
(1) no Default or Event of Default shall have occurred and be continuing at the
time and after giving effect to such Revocation; and
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(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiaries
outstanding immediately following such Revocation would, if Incurred at such time, have been
permitted to be Incurred for all purposes of this Indenture.
All Designations and Revocations must be evidenced by an Officers’ Certificate of the Company
delivered to the Trustee certifying authorization under this Indenture and compliance with the
foregoing provisions.
SECTION 4.17. Offer to Purchase upon Change of Control.
(a) If a Change of Control occurs, each Holder shall have the right to require the Company
to purchase all or any part of such Holder’s Notes pursuant to the offer described below (the
“Change of Control Offer”), at a purchase price equal to 101% of the principal amount
thereof plus accrued and unpaid interest to the date of purchase (subject to the right of Holders
of record on the relevant record date to receive interest due on the relevant Interest Payment
Date).
(b) Within 30 days following the date upon which the Change of Control occurred, the
Company must send, by first class mail, a notice to the Trustee and each Holder, which notice shall
govern the terms of the Change of Control Offer. Such notice shall state:
(1) that a Change of Control has occurred and that such Holder has the right to
require the Company to purchase all or a portion of such Holder’s notes at a purchase price
in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest to
the date of purchase (subject to the right of Holders of record on the relevant record date
to receive interest on the relevant interest payment date);
(2) the circumstances and relevant facts regarding such Change of Control;
(3) the purchase date (which shall be no earlier than 30 days nor later than 60
days from the date such notice is mailed) (the “Change of Control Payment Date”);
and
(4) the instructions determined by the Company, consistent with this covenant, that
a Holder must follow in order to have its notes purchased.
Holders electing to have a Note purchased pursuant to a Change of Control Offer shall be required
to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse
of the Note completed, to the Paying Agent at the address specified in the notice prior to the
close of business on the third Business Day prior to the Change of Control Payment Date.
(c) On the Change of Control Payment Date, the Company shall, to the extent lawful, (1)
accept for payment all Notes or portions thereof properly tendered pursuant to the Change of
Control Offer, (2) deposit with the Paying Agent an amount equal to the Change of Control Payment
in respect of all Notes or portions thereof so tendered and (3) deliver or cause to be delivered to
the applicable Trustee the Notes so accepted together with an Officers’ Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by the Company. The Paying
Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for
such Notes, and the Trustee shall promptly authenticate and mail or deliver (or cause to be
transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any; provided that each such new Note will be in a
principal amount of $2,000 or an integral multiple of $1,000 thereafter. The Company shall publicly
announce the results of the Change of Control Offer on or as soon as practicable after the Change
of Control Payment Date.
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(d) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act to
the extent such laws and regulations are applicable in connection with the repurchase of Notes
pursuant to a Change of Control Offer. To the extent that the Company complies with the provisions
of any such securities laws or regulations, the Company shall not be deemed to have breached its
obligations under this Section 4.17.
(e) Notwithstanding anything to the contrary in this Section 4.17, 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 Section 4.17 hereof and purchases all Notes validly tendered and not
withdrawn under such Change of Control Offer. In addition, the Company will not be required to
make a Change of Control Offer upon a Change of Control if the Notes have been or are called for
redemption by the Company prior to it being required to mail notice of the Change of Control Offer,
and thereafter redeems all Notes called for redemption in accordance with the terms set forth in
such redemption notice.
(f) A change of Control Offer may be made in advance of a Change of Control, and
conditioned upon, the consummation of such Change of Control, if a definitive agreement is in place
for the Change of Control at the time the Change of Control Offer is made.
SECTION 4.18. Covenant Suspension.
(a) Beginning on the date (the “Suspension Date”) that (i) the Notes have been
assigned an Investment Grade Rating from both Rating Agencies and (ii) no Default or Event of
Default has occurred and is continuing under this Indenture, and ending on the date (the
“Reversion Date”) that either Rating Agency (or both Rating Agencies) downgrades the rating
assigned by it to the Notes below the Investment Grade Rating, or a Default or Event of Default has
occurred and is continuing (such period of time from and including the Suspension Date to but
excluding the Reversion Date, the “Suspension Period”), the Company and its Restricted
Subsidiaries will not be subject to the following provisions of this Indenture:
(1) Section 4.03;
(2) Section 4.04;
(3) Section 4.05;
(4) Section 4.11;
(5) Section 4.12;
(6) Section 4.14;
(7) Section 4.15; and
(8) Section 5.01(a)(2)
(collectively, the “Suspended Covenants”).
(b) In addition, the Company may at its sole discretion elect to suspend the Note
Guarantees. Such election shall be evidenced by an Officers’ Certificate of the Company delivered
to the Trustee certifying compliance with the foregoing provisions.
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(c) Notwithstanding the foregoing, the Company and its Restricted Subsidiaries will remain
subject to the following provisions of this Indenture:
(1) Section 4.09;
(2) Section 4.13;
(3) Section 4.16;
(4) Section 4.17; and
(5) Section 5.01 (except to the extent set forth in Section 4.18(a)(8)).
(d) During any Suspension Period, the Company’s Board of Directors may not designate any
of the Company’s Subsidiaries as Unrestricted Subsidiaries.
(e) On the Reversion Date, all Indebtedness Incurred and Disqualified Capital Stock and
Preferred Stock issued during the Suspension Period will be deemed to have been outstanding on the
Issue Date, so that it is classified as permitted under Section 4.03(b)(2).
(f) Calculations made after the Reversion Date of the amount available to be made as
Restricted Payments under Section 4.04 will be made as though Section 4.04 had been in effect since
the Issue Date and throughout the Suspension Period. Accordingly, Restricted Payments made during
the Suspension Period will reduce the amount available to be made as Restricted Payments under
Section 4.04(a) and will be deemed to have been made under such Section 4.04(a).
For purposes of Section 4.05, on the Suspension Date, the Net Cash Proceeds amount will be
reset to zero.
Notwithstanding the reinstatement of the Suspended Covenants on the Reversion Date, neither
(a) the continued existence, on and after the Reversion Date, of facts and circumstances or
obligations that occurred, were Incurred or otherwise came into existence during a Suspension
Period nor (b) the performance thereof, shall constitute a breach of any Suspended Covenant set
forth in this Indenture or cause a Default or Event of Default thereunder; provided,
however, that (i) the Company and the Restricted Subsidiaries did not Incur or otherwise
cause such facts and circumstances or obligations to exist in anticipation of a withdrawal or
downgrade by either Rating Agency (or both Rating Agencies) of its Investment Grade Rating on the
Notes and (ii) the Company reasonably believed that such Incurrence or actions would not result in
such withdrawal or downgrade.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets.
(a) The Company will not, in a single transaction or series of related transactions,
consolidate or merge with or into any Person, or sell, assign, transfer, lease, convey or otherwise
dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey
or otherwise dispose of) all or substantially all of the Company’s assets (determined on a
consolidated basis for the Company and the Restricted Subsidiaries) whether as an entirety or
substantially as an entirety to any Person unless:
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(1) either (A) the Company shall be the surviving or continuing corporation or (B)
the Person (if other than the Company) formed by such consolidation or into which the
Company is merged or the Person which acquires by sale, assignment, transfer, lease,
conveyance or other disposition the properties and assets of the Company and the Restricted
Subsidiaries substantially as an entirety (the “Surviving Entity”) (x) shall be a
corporation organized and validly existing under the laws of the United States or any State
thereof or the District of Columbia, and (y) shall expressly assume, by supplemental
indenture (in form and substance satisfactory to the Trustee), executed and delivered to the
Trustee, the due and punctual payment of the principal of and premium, if any, and interest
on all of the Notes and the performance of every covenant of the Notes and this Indenture on
the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction on a pro forma basis and
the assumption contemplated by clause (1)(B)(y) above (including giving effect to any
Indebtedness and Acquired Indebtedness Incurred or anticipated to be Incurred in connection
with or in respect of such transaction), the Company or such Surviving Entity, as the case
may be, shall be able to Incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to Section 4.03 or (B) the Consolidated Fixed Charge
Coverage Ratio of the Company or the Surviving Entity, as the case may be, is greater than
such ratio immediately prior to such transaction; provided, however, that
this clause (2) shall not be effective during any Suspension Period as described under
Section 4.18;
(3) immediately before and immediately after giving effect to such transaction and
the assumption contemplated by clause (1)(B)(y) above (including, without limitation, giving
effect to any Indebtedness and Acquired Indebtedness Incurred or anticipated to be Incurred
and any Lien granted or to be released in connection with or in respect of the transaction),
no Default or Event of Default shall have occurred and be continuing; and
(4) the Company or the Surviving Entity shall have delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a
supplemental indenture is required in connection with such transaction, such supplemental
indenture comply with the applicable provisions of this Indenture and that all conditions
precedent in this Indenture relating to such transaction have been satisfied;
provided that clauses (2) and (3) above do not apply to the consolidation or merger of the
Company with or into, or the sale by the Company of all or substantially all its assets to, a
Wholly Owned Restricted Subsidiary or the consolidation or merger of a Wholly Owned Restricted
Subsidiary with or into, or the sale by such Subsidiary of all or substantially all of its assets
to, the Company.
(b) For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise,
in a single transaction or series of transactions) of all or substantially all of the properties or
assets of one or more Restricted Subsidiaries, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed to be the transfer
of all or substantially all of the properties and assets of the Company.
(c) No Subsidiary Guarantor (other than any Subsidiary Guarantor whose Note Guarantee is
to be released in accordance with the terms of the Note Guarantee and this Indenture in connection
with any transaction complying with the provisions of Section 4.05) will, and the Company will not
cause or permit any Subsidiary Guarantor to, consolidate with or merge with or into any Person
other than the Company or any other Subsidiary Guarantor unless:
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(1) (A) either (x) the Subsidiary Guarantor is the continuing Person or (y) the
resulting, surviving or transferee Person is a corporation organized and existing under the
laws of the United States or any State thereof or the District of Columbia or the
jurisdiction of such Subsidiary Guarantor and expressly assumes by supplemental indenture
all of the obligations of the Subsidiary Guarantor under its Note Guarantee; and
(B) immediately after giving effect to the transaction, no Default has occurred and
is continuing; or
(2) the transaction constitutes a sale or other disposition (including by way of
consolidation or merger) of the Subsidiary Guarantor or the sale or disposition of all or
substantially all the assets of the Subsidiary Guarantor (in each case other than to the
Company or a Restricted Subsidiary) otherwise permitted by this Indenture.
SECTION 5.02. Successor Corporation Substituted.
In accordance with the foregoing, upon any such consolidation, combination, merger,
conveyance, lease or any transfer of all or substantially all of the assets of the Company in which
the Company is not the continuing corporation, the Surviving Entity formed by such consolidation or
into which the Company is merged or to which such conveyance, lease or transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of, the Company under
this Indenture and the Notes with the same effect as if such successor had been named as the
Company herein, and thereafter the predecessor corporation will be relieved of all further
obligations and covenants under this Indenture and the Notes; provided that solely for
purposes of computing amounts described in clause (3) of Section 4.04(a), any such Surviving
Entity shall only be deemed to have succeeded to and be substituted for the Company with respect to
periods subsequent to the effective time of such merger, consolidation or transfer of assets.
ARTICLE VI
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
(a) Each of the following is an “Event of Default:”
(1) the failure to pay interest on the Notes when the same becomes due and payable
and the default continues for a period of 30 days;
(2) the failure to pay the principal on the Notes when such principal becomes due
and payable, at maturity, upon redemption or otherwise (including the failure to make a
payment to purchase Notes tendered pursuant to a Change of Control Offer or a Net Proceeds
Offer);
(3) a default by the Company or any Restricted Subsidiary in the observance or
performance of any other covenant or agreement contained in this Indenture which default
continues for a period of 60 days after the Company receives written notice specifying the
default from the Trustee or the Holders of at least 25% of the outstanding principal amount
of the Notes (except in the case of a default with respect to Article V, which will
constitute an Event of Default with such notice requirement but without such passage of time
requirement);
(4) a default under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness of the Company or of
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any Restricted Subsidiary (or the payment of which is guaranteed by the Company or any
Restricted Subsidiary), whether such Indebtedness now exists or is created after the Issue
Date, which default (a) is caused by a failure to pay principal of such Indebtedness after
any applicable grace period provided in such Indebtedness on the date of such default (a
“Payment Default”), or (b) results in the acceleration of such Indebtedness prior to
its express maturity (and such acceleration is not rescinded, or such Indebtedness is not
repaid, within 30 days) and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under which there has been
a Payment Default or the maturity of which has been so accelerated, exceeds $100.0 million
or more at any time;
(5) the Company or any of its Restricted Subsidiaries excluding Immaterial
Subsidiaries (A) admits in writing its inability to pay its debts generally as they become
due, (B) commences a voluntary case or proceeding under any Bankruptcy Law with respect to
itself, (C) consents to the entry of a judgment, decree or order for relief against it in an
involuntary case or proceeding under any Bankruptcy Law, (D) consents to the appointment of
a Custodian of it or for substantially all of its property, (E) consents to or acquiesces in
the institution of a bankruptcy or an insolvency proceeding against it, (F) makes a general
assignment for the benefit of its creditors, or (G) takes any corporate action to authorize
or effect any of the foregoing;
(6) a court of competent jurisdiction enters a judgment, decree or order for relief
in respect of the Company or any of its Significant Subsidiaries excluding Immaterial
Subsidiaries in an involuntary case or proceeding under any Bankruptcy Law, which shall (A)
approve as properly filed a petition seeking reorganization, arrangement, adjustment or
composition in respect of the Company or any of its Significant Subsidiaries excluding
Immaterial Subsidiaries, (B) appoint a Custodian of the Company or any of its Significant
Subsidiaries excluding Immaterial Subsidiaries or for substantially all of any of their
property or (C) order the winding-up or liquidation of its affairs; and such judgment,
decree or order shall remain unstayed and in effect for a period of 60 consecutive days;
(7) one or more judgments in an aggregate amount in excess of $100.0 million not
covered by adequate insurance (other than self-insurance) shall have been rendered against
the Company or any of the Restricted Subsidiaries and such judgments remain undischarged,
unpaid or unstayed for a period of 60 days after such judgment or judgments become final and
nonappealable; or
(8) any Note Guarantee of a Significant Subsidiary ceases to be in full force and
effect, or any Note Guarantee of such a Significant Subsidiary is declared to be null and
void and unenforceable or any Note Guarantee of such a Significant Subsidiary is found to be
invalid or any Subsidiary Guarantor which is a Significant Subsidiary denies its liability
under its Note Guarantee (other than by reason of release of such Subsidiary Guarantor in
accordance with the terms of this Indenture).
(b) The Trustee shall, within 90 days after the occurrence of any Default actually known
to a Responsible Officer of the Trustee, give to the Securityholders notice of such Default;
provided that, except in the case of a Default in the payment of principal of or interest
on any of the Notes, the Trustee shall be protected in withholding such notice if and so long as it
in good faith determines that the withholding of such notice is in the interest of the
Securityholders.
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SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in clause (5) or (6) above)
shall occur and be continuing, the Trustee or the Holders of at least 25% in principal amount of
outstanding Notes may declare the principal of, premium, if any, and accrued and unpaid interest on
all the Notes to be due and payable by notice in writing to the Company (and to the Trustee, if
given by the Holders) specifying the respective Events of Default and that it is a “notice of
acceleration,” and the same shall become immediately due and payable. If an Event of Default
specified in clause (5) or (6) above occurs and is continuing, then all unpaid principal of,
premium, if any, and accrued and unpaid interest on all of the outstanding Notes shall ipso facto
become and be immediately due and payable without any declaration or other act on the part of the
Trustee or any Holder.
At any time after a declaration of acceleration with respect to the Notes as described in the
preceding paragraph, the Holders of a majority in principal amount of the then outstanding Notes
may rescind and cancel such declaration and its consequences;
(i) if the rescission would not conflict with any judgment or decree;
(ii) if all existing Events of Default have been cured or waived except nonpayment
of principal or interest that has become due solely because of the acceleration; and
(iii) in the event of the cure or waiver of an Event of Default of the type
described in clauses (5) and (6) of the description above of Events of Default, the Trustee
shall have received an Officers’ Certificate and an Opinion of Counsel that such Event of
Default has been cured or waived.
No such rescission shall affect any subsequent Default or Event of Default or impair any right
consequent thereto.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
by proceeding at law or in equity to collect the payment of principal of or interest on the Notes
or to enforce the performance of any provision of the Notes, this Indenture or any Note Guarantee.
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 Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive
of any other remedy. All available remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Subject to Sections 6.02, 6.07 and 9.02, the Holders of a majority in principal amount of the
then outstanding Notes by written notice to the Trustee may waive an existing Default or Event of
Default and its consequences, except a Default in the payment of principal of or premium, if any,
or interest on any Notes as specified in clauses (1) and (2) of Section 6.01. The Company shall
deliver to the Trustee an Officers’ Certificate stating that the requisite percentage of Holders
have consented to such waiver and attaching copies of such consents upon which the Trustee may
conclusively rely. When a Default or Event of Default is waived, it is cured and ceases.
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SECTION 6.05. Control by Majority.
The Holders of not less than a majority in principal amount of the outstanding Notes may
direct the time, method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on it. Subject to Section 7.01, however, the
Trustee may refuse to follow any direction that conflicts with any law or this Indenture, that the
Trustee determines may be unduly prejudicial to the rights of another Securityholder, or that may
involve the Trustee in personal liability; provided that the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such direction.
Prior to taking any action or following any direction pursuant to this Section 6.05, the
Trustee shall be entitled to indemnification from such Holders satisfactory to it in its sole
discretion against any fees, loss, liability, cost or expense caused by taking such action or
following such direction.
SECTION 6.06. Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this Indenture, the Notes or any
Note Guarantee unless:
(1) the Holder gives to the Trustee written notice of a continuing Event of
Default;
(2) the Holder or Holders of at least 25% in principal amount of the outstanding
Notes make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer and, if requested, provide to the Trustee security
or indemnity satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 30 days after receipt of
the request and the offer and, if requested, the provision of indemnity; and
(5) during such 30-day period the Holder or Holders of a majority in principal
amount of the outstanding Notes do not give the Trustee a direction which, in the opinion of
the Trustee, is inconsistent with the request (it being understood that the Trustee does not
have an affirmative duty to ascertain whether or not such actions or forbearance are unduly
prejudicial to such Holders).
A Securityholder may not use this Indenture to prejudice the rights of another Securityholder
or to obtain a preference or priority over such other Securityholder.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, but subject to Section 8.03, the right
of any Holder to receive payment of principal of, premium and interest on Notes, on or after the
respective due dates expressed in such Notes, 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
the Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal, premium or interest specified in clause (1) or
(2) of Section 6.01(a) occurs and is continuing, the Trustee may recover judgment in its own name
and as trustee of an express trust against the Company or any other obligor on the Notes for the
whole amount of
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principal and accrued interest remaining unpaid, together with interest on overdue principal
and, to the extent that payment of such interest is lawful, interest on overdue installments of
interest, in each case at the rate per annum borne by the Notes and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents and take such other
actions as it may determine in its reasonable discretion to be necessary or advisable (including
participating as a member of any creditors committee acting in the matter) in order to have the
claims of the Trustee (including any claim for the reasonable compensation, expenses, legal fees
and expenses, disbursements and advances of the Trustee, its agents, nominees, custodians, counsel,
accountants and experts) and the Securityholders allowed in any judicial proceedings relating to
the Company, its creditors or its property and shall be entitled and empowered to collect and
receive any monies or other property payable or deliverable on any such claims and to distribute
the same, and any Custodian in any such judicial proceedings is hereby authorized by each
Securityholder to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Securityholders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, legal fees and expenses, disbursements
and advances of the Trustee, its agents, nominees, custodians and counsel, and any other amounts
due the Trustee under Section 7.07. Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Securityholder
in any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money or property pursuant to this Article VI, it shall pay out
the money or property in the following order:
First: without duplication, to the Trustee for amounts owing under Section
7.07;
Second: if the Holders are forced to proceed against the Company, a Guarantor
or any other obligor on the Notes directly without the Trustee, to Holders for their
collection costs;
Third: to Holders for amounts due and unpaid on the Notes for principal,
premium and interest, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal, premium and interest, respectively; and
Fourth: to the Company or any Guarantors, as their respective interests may
appear or to such party as directed by a court of competent jurisdiction.
The Trustee, upon prior notice to the Company, may fix a record date and payment date for any
payment to Securityholders pursuant to this Section 6.10.
SECTION 6.11. Payment of Interest; Interest Rights Preserved.
Interest on any Notes which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Note is registered at the
close of business on the Record Date for such interest.
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Any interest on any Note which is payable, but is not punctually paid or duly provided
for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith
cease to be payable to the Holder on such Record Date by virtue of having been such Holder; and
such Defaulted Interest may be paid by the Company, at its election in each case, as provided in
subsection (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
(the “Special Record Date”) for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Note and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this subsection provided. Thereupon the
Trustee 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 Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such Special Record
Date. In the name and at the expense of the Company, the Trustee 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 his address as it appears in the
security register for the Notes, 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 so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Notes (or their respective predecessor securities) are registered on such
Special Record Date and shall no longer be payable pursuant to the following subsection (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
Company has caused the Notes to be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the proposed payment
pursuant to this subsection, such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, 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 6.12. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.12 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by a Holder or Holders
of more than 10% in principal amount of the outstanding Notes.
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ARTICLE VII
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) Except during the continuance of an Event of Default with respect to the Notes:
(1) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture with respect to the Notes, 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, with respect to the
Notes, conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any such certificates
or opinions which by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).
(b) In case an Event of Default with respect to the Notes has occurred and is continuing,
the Trustee shall exercise with respect to the Notes such of the rights and powers vested in it by
this Indenture and any indenture supplemental hereto or Board Resolution relating to the Notes, and
use the same degree of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person’s own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of Subsection (a) of
this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by
a Responsible Officer, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or omitted to
be taken by it in good faith in accordance with the direction of the Holders of a majority
in principal amount of the outstanding Notes relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture with respect to the Notes; and
(4) no provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise Incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
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(d) Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to the Trustee shall
be subject to the provisions of this Section.
SECTION 7.02. Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a) the Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture or other paper or
document believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the 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;
(c) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, conclusively rely upon an Officers’ Certificate;
(d) the Trustee may consult with counsel of its selection and the advice of such
counsel or an Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any of the
Securityholders pursuant to this Indenture, unless such Securityholders shall have offered
to the Trustee security or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books, records and premises of
the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys and the Trustee shall
not be responsible for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be charged with knowledge of any default (as defined in
Section 6.02) or Event of Default with respect to the Notes for which it is acting as
Trustee unless either (1) a Responsible Officer of the Trustee assigned to the corporate
trust department of the Trustee (or any successor division or department of the Trustee)
shall have actual knowledge of such default or Event of Default or (2) written notice of
such default or Event of Default shall
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have been received by the Trustee at its Corporate
Trust Office from the Company or any other obligor on such Notes or by any Holder of such
Notes;
(i) the Trustee shall not be liable for any action taken, suffered or omitted by it
in good faith and believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture;
(j) 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;
(k) in no event shall the Trustee be responsible or liable for special, indirect or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of
profit) irrespective of whether the Trustee has been advised of the likelihood of such loss
or damage and regardless of the form of action;
(l) the Trustee shall not be deemed to have notice of any Default or Event of
Default with respect to the Notes, except an Event of Default under Section 6.01(a)(1),
Section 6.01(a)(2) or Section 6.01(a)(3) hereof (provided that the Trustee is the
principal Paying Agent with respect to the Notes), unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and
such notice references the Notes and this Indenture; and
(m) the Trustee may request that the Company deliver a certificate setting forth
the names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Company, its Subsidiaries, any Subsidiary Guarantors and their
respective Affiliates with the same rights it would have if it were not Trustee. Any Agent may do
the same with like rights. However, the Trustee must comply with Sections 7.10 and 7.11 of this
Indenture as well as the provisions of the TIA.
SECTION 7.04. Trustee’s Disclaimer.
The Trustee shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use of the
proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any
provision of this Indenture, and it shall not be responsible for any statement of the Company in
this Indenture or any document issued in connection with the sale of Notes or any statement in the
Notes other than the Trustee’s certificate of authentication. The Trustee shall not be accountable
for the use or application of any money received by any Paying Agent other than the Trustee. The
Trustee makes no representations with respect to the effectiveness or adequacy of this Indenture.
The Trustee shall not be responsible for independently ascertaining or maintaining such validity,
if any, and shall be fully protected in relying upon certificates and opinions delivered to it in
accordance with the terms of this Indenture.
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Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
SECTION 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing and a Responsible Officer of the
Trustee receives written notice of such event, the Trustee shall mail to each Securityholder, as
their names and addresses appear on the Securityholder list described in Section 2.05, notice of
the uncured Default or Event of Default within 90 days after the Trustee receives such notice (or
30 days in the case of a Default or Event of Default specified in the following sentence). Except
in the case of a Default or an Event of Default in payment of principal of, premium or interest on,
any Note, including the failure to make payment on (i) the Change of Control Payment Date pursuant
to a Change of Control Offer or (ii) the Net Proceeds Offer Payment Date pursuant to an Net
Proceeds Offer, the Trustee may withhold the notice if and so long as a Responsible Officer of the
Trustee in good faith determines that withholding the notice is in the interest of the
Securityholders.
SECTION 7.06. Reports by Trustee to Holders.
This Section 7.06 shall not be operative as a part of this Indenture until this Indenture is
qualified under the TIA, and, until such qualification, this Indenture shall be construed as if
this Section 7.06 were not contained herein.
Within 60 days after each May 15 of each year beginning with 2011, the Trustee shall, to the
extent that any of the events described in TIA § 313(a) occurred within the previous 12 months, but
not otherwise, mail to each Securityholder a brief report dated as of such May 15 that complies
with TIA § 313(a). The Trustee also shall comply with TIA §§ 313(b), 313(c) and 313(d).
A copy of each report at the time of its mailing to Securityholders shall be mailed to the
Company and filed with the Commission and each securities exchange, if any, on which the Notes are
listed.
The Company shall notify a Responsible Officer of the Trustee in writing if the Notes become
listed on any securities exchange or of any delisting thereof.
SECTION 7.07. Compensation and Indemnity.
(a) The Company shall pay to the Trustee from time to time such compensation for its
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 and the Subsidiary Guarantors, jointly and severally, shall reimburse the
Trustee upon request for all reasonable disbursements, expenses and advances (including reasonable
fees and expenses of counsel) incurred or made by it in addition to the compensation for its
services, except any such disbursements, expenses and advances as shall be determined to have been
caused by the Trustee’s own negligence, willful misconduct or bad faith. Such expenses shall
include the reasonable compensation, legal fees and expenses, disbursements and expenses of the
Trustee’s agents, accountants, experts, nominees, custodians and counsel and any taxes or other
expenses incurred by a trust created pursuant to Section 8.01.
(b) The Company and the Subsidiary Guarantors, jointly and severally, shall indemnify each
of the Trustee, its directors, officers, employees, agents, affiliates, successors and each
predecessor Trustee for, and hold them harmless against, any loss, claim, damage, liability or
expense incurred by the Trustee, without negligence, willful misconduct or bad faith on its part
arising out of or in connection
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with the acceptance and administration of this trust and its duties
under this Indenture, including the reasonable fees and expenses of its attorneys (including,
without limitation, for defending itself against any claim, whether asserted by the Company, a
Holder or any other Person, of liability arising hereunder). The Trustee shall notify the Company
reasonably promptly of any claim asserted against the Trustee of
which a Responsible Officer has received written notice for which it may seek indemnity.
However, the failure by the Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company and the Subsidiary Guarantors shall defend the claim and the
Trustee shall cooperate in the defense (and may employ its own counsel) at the Company’s expense.
The Company and the Subsidiary Guarantors need not pay for any settlement made without its written
consent, which consent shall not be unreasonably withheld or delayed. The Company and the
Subsidiary Guarantors need not reimburse any expense or indemnify against any loss, expense, claim,
damage or liability incurred by the Trustee determined by a court of competent jurisdiction to have
been caused by the Trustee’s own negligence or willful misconduct.
(c) To secure the payment obligations of the Company and the Subsidiary Guarantors in this
Section 7.07, the Trustee shall have a Lien prior to any Lien held by the Securityholders on all
money and property held or collected by the Trustee as such for so long as the Trustee holds such
money and property, except funds and property held in trust for the payment of principal of (and
premium, if any) or interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture for so long as the Trustee holds such money and property.
When the Trustee incurs expenses or renders services after an Event of Default specified in
clause (5) or (6) of Section 6.01(a) occurs, the expenses (including the reasonable fees and
expenses of its agents and counsel) and the compensation for the services shall be preferred over
the status of the Holders in a proceeding under any Bankruptcy Law and are intended to constitute
expenses of administration under any Bankruptcy Law. The Company’s obligations under this Section
7.07 and any claim arising hereunder shall survive termination of this Indenture, the resignation
or removal of any Trustee, the discharge of the Company’s obligations pursuant to Article VIII and
any rejection or termination under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign at any time by so notifying the Company in writing. The Holders of a
majority in principal amount of the outstanding Notes may remove the Trustee by so notifying the
Company and the Trustee in writing and may appoint a successor Trustee with the Company’s consent.
The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or its property;
or
(4) the Trustee becomes legally incapable of acting with respect to its duties
hereunder.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Company shall notify each Holder of such event and 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 Notes may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
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A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer, after
payment of all sums then owing to the Trustee pursuant to Section 7.07, all property held by it as
Trustee to the successor Trustee, subject to the lien provided in Section 7.07, 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; provided, however, that no Trustee under this
Indenture shall be liable for any act or omission of any successor Trustee. A successor Trustee
shall mail notice of its succession to each Securityholder.
If a successor Trustee does not take office within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee (at the expense of the Company), the Company or the Holders of
at least 10% in principal amount of the outstanding Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company’s
obligations under Section 7.07 shall continue for the benefit of the retiring Trustee and the
Company shall pay to any such replaced or removed Trustee all amounts owed under Section 7.07 upon
such replacement or removal.
SECTION 7.09. Successor Trustee by Merger, Etc.
Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of any of the parties
hereto. In case any Notes shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Notes so authenticated with the same effect as if such
successor Trustee had itself authenticated such Notes.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirement of TIA §§ 310(a)(1)
and 310(a)(5). The Trustee shall have a combined capital and surplus of at least $50,000,000 as
set forth in its most recent published annual report of condition. The Trustee shall comply with
TIA § 310(b); provided, however, that there shall be excluded from the operation of
TIA § 310(b)(1) any indenture or indentures under which other securities, or certificates of
interest or participation in other securities, of the Company are outstanding, if the requirements
for such exclusion set forth in TIA § 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA § 311(a), excluding any creditor relationship listed in TIA
§ 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated.
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ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option and at any time, with respect to the Notes, elect to
have either paragraph (b) or paragraph (c) below applied to the outstanding Notes upon compliance
with the conditions set forth in paragraph (d).
(b) Upon the Company’s exercise under paragraph (a) of the option applicable to this
paragraph (b), the Company and the Subsidiary Guarantors shall be deemed to have been released and
discharged from their obligations with respect to the outstanding Notes on the date the conditions
set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, such
Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be
“outstanding” only for the purposes of the Sections and matters under this Indenture referred to in
(i) and (ii) below, and to have satisfied all its other obligations under such Notes and this
Indenture insofar as such Notes are concerned, except for the following, which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of the Holders of outstanding Notes to
receive payments in respect of the principal of, premium, if any, and interest on such Notes when
such payments are due; (ii) the Company’s obligations to issue temporary Notes, register the
transfer or exchange of any Notes, replace mutilated, destroyed, lost or stolen Notes and maintain
an office or agency for payments in respect of the Notes; (iii) the rights, powers, trusts, duties
and immunities of the Trustee and the Company’s obligations in connection therewith; and (iv) the
Legal Defeasance provisions of this Indenture. The Company may exercise its option under this
paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with
respect to the Notes.
(c) Upon the Company’s exercise under paragraph (a) above of the option applicable to this
paragraph (c), the Company and the Subsidiary Guarantors shall be released and discharged from
their obligations under any covenant contained in Article V and in Sections 4.03 through 4.18 with
respect to the outstanding Notes on and after the date the conditions set forth below are satisfied
(hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed to be not
“outstanding” for the purpose 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. For this purpose, such Covenant Defeasance
means that, with respect to the outstanding Notes, the Company and any Subsidiary Guarantor may
omit to comply with and shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 6.01(a)(3), nor shall any event referred to in Section
6.01(a)(4) or (7) thereafter constitute a Default or an Event of Default thereunder but, except as
specified above, the remainder of this Indenture and such Notes shall be unaffected thereby.
(d) The following shall be the conditions to application of either paragraph (b) or
paragraph (c) above to the outstanding Notes:
(1) The Company must irrevocably deposit with the Trustee, in trust, for the
benefit of the Holder pursuant to an irrevocable trust and security agreement in form and
substance reasonably satisfactory to the Trustee, U.S. Legal Tender or direct non-callable
obligations of, or non-callable obligations guaranteed by, the United States of America for
the payment of which
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obligation or guarantee the full faith and credit of the United States of America is
pledged (“U.S. Government Obligations”) or a combination thereof, maturing as to
principal and interest in such amounts and at such times as are sufficient, without
consideration of the reinvestment of such interest and principal and after payment of all
federal, state and local taxes or other charges or assessments in respect thereof payable by
the Trustee, in the opinion of a nationally recognized firm of independent public
accountants, selected by the Company, expressed in a written certification thereof (in form
and substance reasonably satisfactory to the Trustee) delivered to the Trustee, to pay the
principal of, premium, if any, and interest on all the outstanding Notes on the dates on
which any such payments are due and payable in accordance with the terms of this Indenture
and of the Notes;
(2) Such deposits shall not cause the Trustee to have a conflicting interest as
defined in and for purposes of the TIA;
(3) No Default or Event of Default or event which with notice or lapse of time or
both would become a Default or an Event of Default with respect to the Notes shall have
occurred and be continuing on the date of such deposit or, insofar as Section 6.01(a)(5) or
(6) is concerned, at any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be deemed satisfied until
the expiration of such period);
(4) Such deposit will not result in a Default under this Indenture or a breach or
violation of, or constitute a default under, any other material instrument or agreement to
which the Company or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;
(5) (i) In the event the Company elects paragraph (b) hereof, the Company shall
deliver to the Trustee an Opinion of Counsel in the United States, in form and substance
reasonably acceptable to the Trustee confirming that (A) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling or (B) since the Issue
Date, there has been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall confirm that, Holders of
the Notes will not recognize income, gain or loss for federal income tax purposes as a
result of such deposit and the defeasance contemplated hereby and will be subject to federal
income taxes on the same amounts, in the same manner and at the same times as would have
been the case if such deposit and defeasance had not occurred, or (ii) in the event the
Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of
Counsel in the United States, in form and substance reasonably acceptable to the Trustee,
confirming that, Holders of the Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and the defeasance contemplated hereby and
will be subject to federal income tax on the same amounts and in the same manner and at the
same times as would have been the case if such deposit and defeasance had not occurred;
(6) The Company shall have delivered to the Trustee an Officers’ Certificate, in
form and substance reasonably satisfactory to the Trustee, stating that the deposit under
clause (1) was not made by the Company, a Subsidiary Guarantor or any Subsidiary of the
Company with the intent of preferring the Holders of Notes over any other creditors of the
Company or with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company, a Subsidiary Guarantor, or any Subsidiary of the Company or
others;
(7) The Company shall have delivered to the Trustee an Opinion of Counsel, in form
and substance reasonably satisfactory to the Trustee, to the effect that, after the 91st day
following
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the deposit, the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights
generally;
(8) The Company has delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent specified herein relating to
the defeasance contemplated by this Section 8.01 have been complied with; provided,
however, that no deposit under clause (1) above shall be effective to terminate the
obligations of the Company under the Notes or this Indenture prior to 90 days following any
such deposit; and
(9) The Company shall have paid all amounts owing to the Trustee pursuant to
Section 7.07.
Notwithstanding the foregoing, the Opinion of Counsel required by paragraph (5) above need not
be delivered if all Notes not theretofore delivered to the Trustee for cancellation (i) have become
due and payable, (ii) will become due and payable on the maturity date for the securities within
one year, or (iii) are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company.
In the event all or any portion of the Notes are to be redeemed through such irrevocable
trust, the Company must make arrangements satisfactory to the Trustee, at the time of such deposit,
for the giving of the notice of such redemption or redemptions by the Trustee in the name and at
the expense of the Company.
SECTION 8.02. Satisfaction and Discharge.
In addition to the Company’s rights under Section 8.01, the Company may terminate all of its
obligations under this Indenture (subject to Section 8.03) when:
(1) Either (a) all Notes theretofore authenticated and delivered (other than Notes
which have been destroyed, lost or stolen and which have been replaced or paid as provided
in Section 2.07 and Notes for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust) have been delivered to the Trustee for cancellation; or (b) all
Notes not theretofore delivered to the Trustee for cancellation (except lost, stolen or
destroyed Notes which have been replaced or paid) have (i) become due and payable, (ii) will
become due and payable at their stated maturity within one year or (iii) are to be called
for redemption within one year under arrangements satisfactory to the Trustee, and the
Company has irrevocably deposited or caused to be deposited with the Trustee funds in an
amount sufficient to pay and discharge the entire Indebtedness on the Notes not theretofore
delivered to the Trustee for cancellation, for principal of, premium, if any, and interest
on the Notes to the date of deposit together with irrevocable instructions from the Company
directing the Trustee to apply such funds to the payment thereof at maturity or redemption,
as the case may be; and
(2) the Company and/or the Subsidiary Guarantors have paid or caused to be paid all
other sums payable under this Indenture; and
(3) there exists no Default or Event of Default under this Indenture; and
(4) the Company has delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent specified herein relating to
the satisfaction and discharge of this Indenture have been complied with; and
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(5) the Company shall have paid all amounts owing to the Trustee pursuant to
Section 7.07.
SECTION 8.03. Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of this Indenture and of the Notes referred to
in Section 8.01 or 8.02, the respective obligations of the Company and the Trustee under Sections
2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.10, 2.12, 2.13, 4.01 (only in the case of Section 8.01), 4.02
and 6.07 (only in the case of Section 8.01), Article VII and Sections 8.05, 8.06 and 8.07 shall
survive until the Notes are no longer outstanding, and thereafter the obligations of the Company
and the Trustee under Sections 7.07, 8.05, 8.06 and 8.07 shall survive such satisfaction and
discharge. Nothing contained in this Article VIII shall abrogate any of the rights, obligations or
duties of the Trustee under this Indenture.
SECTION 8.04. Acknowledgment of Discharge by Trustee.
Subject to Section 8.07, after (i) the conditions of Section 8.01 or 8.02 have been satisfied,
(ii) the Company has paid or caused to be paid all other sums payable hereunder by the Company, and
(iii) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent referred to in clause (i) above relating to the
satisfaction and discharge of this Indenture have been complied with, the Trustee upon written
request shall acknowledge in writing the discharge of the Company’s obligations under this
Indenture except for those surviving obligations specified in Section 8.03.
SECTION 8.05. Application of Trust Assets.
The Trustee shall hold any U.S. Legal Tender or U.S. Government Obligations deposited with it
in the irrevocable trust established pursuant to Section 8.01. The Trustee shall apply the
deposited U.S. Legal Tender or the U.S. Government Obligations, together with earnings thereon,
through the Paying Agent, in accordance with this Indenture and the terms of the irrevocable trust
agreement established pursuant to Section 8.01, to the payment of principal of and interest on the
Notes. The U.S. Legal Tender or U.S. Government Obligations so held in trust and deposited with
the Trustee in compliance with Section 8.01 shall not be part of the trust estate under this
Indenture, but shall constitute a separate trust fund for the benefit of all Holders entitled
thereto.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section 8.01 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 outstanding Notes.
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SECTION 8.06. Repayment to the Company or Subsidiary Guarantors; Unclaimed Money. |
Subject to Sections 7.07 and 8.01 and to applicable laws relating to escheat, the Trustee
shall promptly pay to the Company, or if deposited with the Trustee by any Subsidiary Guarantor, to
such Subsidiary Guarantor, upon receipt by the Trustee of an Officers’ Certificate, any excess
money, determined in accordance with Section 8.01, held by it at any time. The Trustee and the
Paying Agent shall pay to the Company or any Subsidiary Guarantor, as the case may be, upon receipt
by the Trustee or the Paying Agent, as the case may be, of an Officers’ Certificate, any money held
by it for the payment of principal, premium, if any, or interest that remains unclaimed for two
years after payment to the Holders is required;
provided,
however, that the Trustee
and the Paying Agent before being required to make any payment shall, at the expense of the Company
cause to be published once in a newspaper of general circulation in The City of
New York or mail to
each Holder entitled to such money notice that such money remains
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unclaimed and that after a date specified therein (which shall not be less than 30 days from the
date of such mailing or publication and shall be at least two years after the date such money held
by the Trustee for the payment of principal, premium, if any, or interest remains unclaimed), any
unclaimed balance of such money then remaining will be repaid to the Company. After payment to the
Company or any Subsidiary Guarantor, as the case may be, Securityholders entitled to such money
must look solely to the Company for payment as general creditors unless an applicable abandoned
property law designates another Person, and all liability of the Trustee or Paying Agent with
respect to such money shall thereupon cease.
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SECTION 8.07. Reinstatement. |
If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in
accordance with this Indenture by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then and only then the Company’s and each Subsidiary Guarantor’s, if any,
obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit
had been made pursuant to this Indenture until such time as the Trustee is permitted to apply all
such money or U.S. Government Obligations in accordance with this Indenture; provided,
however, that if the Company or the Subsidiary Guarantors, as the case may be, have made
any payment of principal of, premium, if any, or interest on any Notes because of the reinstatement
of their obligations, the Company or the Subsidiary Guarantors, as the case may be, shall be
subrogated to the rights of the Holders of such Notes to receive such payment from the money or
U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Company and the Trustee may amend or
supplement this Indenture, the Note Guarantees or the Notes without the consent of any Holder of a
Note to:
(1) cure any ambiguity, omission, defect or inconsistency;
(2) provide for the assumption by a successor entity of the obligations of the
Company or a Subsidiary Guarantor under this Indenture;
(3) provide for uncertificated Notes in addition to or in place of certificated
Notes (provided, however, that the uncertificated Notes are issued in
registered form for purposes of Section 163(f) of the Internal Revenue Code of 1986, or in a
manner such that the uncertificated Notes are described in Section 163(f)(2)(B) of the
Internal Revenue Code of 1986);
(4) provide for any Guarantees of the Notes, to secure the Notes or to confirm and
evidence the release, termination or discharge of any Guarantee of or Lien securing the
Notes when such release, termination or discharge is permitted under this Indenture;
(5) add to the covenants of the Company for the benefit of the Holders of Notes or
to surrender any right or power conferred upon the Company;
(6) make any change that does not adversely affect the rights of any Holder in any
material respect;
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(7) make any amendment to the provisions of this Indenture relating to the form,
authentication, transfer and legending of Notes; provided, however, that (A)
compliance with this Indenture as so amended would not result in Notes being transferred in
violation of the Securities Act or any other applicable securities law and (B) such
amendment does not materially affect the rights of Holders to transfer Notes;
(8) comply with any requirement of the Commission in connection with the
qualification of this Indenture under the TIA;
(9) convey, transfer, assign, mortgage or pledge as security for the Notes any
property or assets in accordance with Section 4.13;
(10) to evidence and provide for the acceptance of an appointment hereunder by a
successor Trustee; or
(11) to conform the “Description of Notes” in the Offering Memorandum, as set forth
in an Officers’ Certificate delivered to the Trustee.
Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the Trustee shall join with the Company
and the Subsidiary Guarantors in the execution of any amended or supplemental Indenture authorized
or permitted by the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture that affects its own rights, duties or immunities under this
Indenture or otherwise.
SECTION 9.02. With Consent of Holders of Notes.
(a) Except as provided below in this Section 9.02, this Indenture, the Note Guarantees and
the Notes may be amended or supplemented with the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding voting as a single class, and, subject to Sections
6.04 and 6.07 hereof, any existing Default or Event of Default (other than a Default or Event of
Default in the payment of the principal of, premium, 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, the Note Guarantees or the Notes may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Notes voting as a single class.
(b) Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and upon the filing with
the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the
Trustee shall join with the Company in the execution of such amended or supplemental indenture
unless such amended or supplemental indenture directly affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amended or supplemental indenture.
(c) It shall not be necessary for the consent of the Holders of Notes under this Section
9.02 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient
if such consent approves the substance thereof.
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(d) After an amendment, supplement or waiver under this Section 9.02 becomes effective,
the Company shall mail to the Holders of Notes affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding voting as a single class may
waive compliance in a particular instance by the Company with any provision of this Indenture or
the Notes. However, without the consent of each Holder affected, an amendment or waiver under this
Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):
(1) reduce the amount of Notes whose Holders must consent to an amendment;
(2) reduce the rate of or change the time for payment of interest, including
defaulted interest, on any Notes;
(3) reduce the principal of or change or have the effect of changing the fixed
maturity of any Notes; or change the date on which any Notes may be subject to redemption or
reduce the Redemption Price therefor;
(4) make any Notes payable in money other than that stated in the Notes;
(5) make any change in provisions of this Indenture protecting the right of each
Holder to receive payment of principal of, premium, if any, and interest on such Notes on or
after the stated due date thereof or to bring suit to enforce such payment, or permitting
Holders of a majority in principal amount of the then outstanding Notes to waive Defaults or
Events of Default;
(6) amend, change or modify in any material respect the obligation of the Company
to make and consummate a Change of Control Offer after the occurrence of a Change of Control
or make and consummate a Net Proceeds Offer with respect to any Asset Sale that has been
consummated or modify any of the provisions or definitions with respect thereto;
(7) modify or change any provision of this Indenture or the related definitions
affecting the ranking of the Notes or any Note Guarantee in a manner which adversely affects
the Holders; or
(8) release any Subsidiary Guarantor from any of its obligations under its Note
Guarantee or this Indenture otherwise than in accordance with the terms of this Indenture.
SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall be set forth in a amended
or supplemental indenture that complies with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion thereof
that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is
not made on any Note. However, any such Holder or subsequent Holder may revoke the consent as to
its Note or portion thereof if the Trustee receives written notice of revocation before the date
the waiver, supplement or
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amendment becomes effective. An amendment, supplement or waiver shall become effective in
accordance with its terms and thereafter shall bind every Holder.
SECTION 9.05. Notation on or Exchange of Notes.
If an amendment, supplement, or waiver changes the terms of a Note, the Trustee (in accordance
with the specific written direction of the Company) shall request the Holder of the Note (in
accordance with the specific written direction of the Company) to deliver it to the Trustee. In
such case, the Trustee shall place an appropriate notation on the Note about the changed terms and
return it to the Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Note shall issue, the Subsidiary Guarantors shall endorse and the Trustee shall
authenticate a new Note that reflects the changed terms. Failure to make the appropriate notation
or issue a new Note shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 9.06. Trustee to Sign Amendments.
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. None of the Company nor any Subsidiary Guarantor may sign an
amendment or supplemental indenture until its board of directors (or committee serving a similar
function) approves it. In executing any amended or supplemental indenture, the Trustee shall be
provided with and (subject to Section 7.01 hereof) shall be fully protected in conclusively 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 and that such amended or
supplemental indenture is the legal, valid and binding obligations of the Company enforceable
against it in accordance with its terms, subject to customary exceptions and that such amended or
supplemental indenture complies with the provisions hereof (including Section 9.03).
ARTICLE X
GUARANTEE
SECTION 10.01. Note Guarantees.
(a) Any Subsidiary Guarantor, as primary obligor and not merely as surety, by execution of
this Indenture, hereby unconditionally and irrevocably guarantees, jointly and severally, to each
Holder and to the Trustee and its successors and assigns (a) the full and punctual payment of
principal of and interest on the Notes when due, whether at maturity, by acceleration, by
redemption or otherwise, and all other monetary obligations of the Company under this Indenture and
the Notes and (b) the full and punctual performance within applicable grace periods of all other
obligations of the Company under this Indenture, the Notes and the Registration Rights Agreement
(all the foregoing being hereinafter collectively called the “Guaranteed Obligations”).
Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be extended or
renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor and
that such Subsidiary Guarantor will remain bound under this Article X notwithstanding any extension
or renewal of any Guaranteed Obligation.
(b) Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest
to the Company of any of the Guaranteed Obligations and also waives notice of protest for
nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the
Guaranteed Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be
affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to
enforce any right or remedy against the Company
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or any other Person under this Indenture, the Notes or any other agreement or otherwise;
(b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification
of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the
release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of
them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any
other guarantor of the Obligations; or (f) except as set forth in Section 10.06, any change in the
ownership of such Subsidiary Guarantor.
(c) Each Subsidiary Guarantor further agrees that its Note Guarantee herein constitutes a
guarantee of payment, performance and compliance when due (and not a guarantee of collection) and
waives any right to require that any resort be had by any Holder or the Trustee to any security
held for payment of the Guaranteed Obligations.
(d) Each Subsidiary Guarantor further agrees that its Note Guarantee herein shall continue
to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof,
of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored
by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
(e) Each Subsidiary Guarantor further agrees that, as between it, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations may be
accelerated as provided in Article VI for the purposes of such Subsidiary Guarantor’s Note
Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Guaranteed Obligations, and (y) in the event of any declaration of
acceleration of such Guaranteed Obligations as provided in Article VI, such Guaranteed Obligations
(whether or not due and payable) shall forthwith become due and payable by such Subsidiary
Guarantor for the purposes of this Section.
(f) Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including
reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under
this Section.
(g) To further evidence the Note Guarantee set forth in this Section 10.01, each
Subsidiary Guarantor hereby agrees that a notation of such Note Guarantee, substantially in the
form included in Exhibit G hereto, shall be endorsed on each Note authenticated and
delivered by the Trustee and such Note Guarantee shall be executed by either manual or facsimile
signature of an Officer or an Officer of a general partner, as the case may be, of each Subsidiary
Guarantor. The validity and enforceability of any Note Guarantee shall not be affected by the fact
that it is not affixed to any particular Note.
Each of the Subsidiary Guarantors hereby agrees that its Note Guarantee set forth in Section
10.01 shall remain in full force and effect notwithstanding any failure to endorse on each Note a
notation of such Note Guarantee.
If an Officer of a Subsidiary Guarantor whose signature is on this Indenture or a Note
Guarantee no longer holds that office at the time the Trustee authenticates the Note on which such
Note Guarantee is endorsed or at any time thereafter, such Subsidiary Guarantor’s Note Guarantee of
such Note shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of any Note Guarantee set forth in this Indenture on behalf of the
Subsidiary Guarantor.
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SECTION 10.02. Limitation on Liability.
Each Subsidiary Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that
it is the intention of all such parties that the Note Guarantee of such Subsidiary Guarantor (a)
not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law
to the extent applicable to any Guarantee, and (b) not result in a distribution to shareholders not
permitted under the applicable state law. Any term or provision of this Indenture to the contrary
notwithstanding, the maximum aggregate amount of the Obligations guaranteed hereunder by any
Subsidiary Guarantor shall not exceed the maximum amount that can be hereby guaranteed without
rendering this Indenture, as it relates to such Subsidiary Guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.
SECTION 10.03. Successors and Assigns.
This Article X shall be binding upon each Subsidiary Guarantor and its successors and assigns
and shall ensure to the benefit of the successors and assigns of the Trustee and the Holders and,
in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and
privileges conferred upon that party in this Indenture and in the Notes shall automatically extend
to and be vested in such transferee or assignee, all subject to the terms and conditions of this
Indenture.
SECTION 10.04. No Waiver.
Neither a failure nor a delay on the part of either the Trustee or the Holders in exercising
any right, power or privilege under this Article X shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any right, power or
privilege. The rights, remedies and benefits of the Trustee and the Holders herein expressly
specified are cumulative and not exclusive of any other rights, remedies or benefits which either
may have under this Article X at law, in equity, by statute or otherwise.
SECTION 10.05. Release of Subsidiary Guarantor.
(a) Upon the sale (including any sale pursuant to any exercise of remedies by a holder of
Indebtedness of the Company or of such Subsidiary Guarantor) or other disposition (including by way
of consolidation or merger) of a Subsidiary Guarantor after which such Subsidiary Guarantor is no
longer a Subsidiary of the Company; (b) upon the sale or disposition of all or substantially all
the assets of a Subsidiary Guarantor (other than to the Company or a Subsidiary or an Affiliate of
the Company); (c) if a Subsidiary Guarantor no longer guarantees or is otherwise obligated under
any Credit Facility or capital markets Indebtedness of the Company or any other Subsidiary
Guarantor; or (d) upon designation of a Subsidiary Guarantor as an Unrestricted Subsidiary pursuant
to the terms of this Indenture.
If the Company exercises its Legal Defeasance option or its Covenant Defeasance option in
accordance with the provisions of Article VIII hereof or if its obligations under this Indenture
are discharged in accordance with Section 8.02 hereof, each Subsidiary Guarantor shall be released
from all obligations under this Article X without any further action required on the part of the
Trustee or any Holder. At the request of the Company, the Trustee shall execute and deliver an
appropriate instrument evidencing the release of a Subsidiary Guarantor pursuant to this Section
10.05.
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SECTION 10.06. Subsidiary Guarantors May Consolidate, Etc., on Certain Terms.
(a) Except as otherwise provided in Section 10.05, a Subsidiary Guarantor may not sell or
otherwise dispose of all or substantially all of its assets, or consolidate with or merge with or
into (whether or not such Subsidiary Guarantor is the surviving Person) another Person unless:
(1) immediately after giving effect to such transactions, no Default or Event of
Default exists; and
(2) either:
(A) the Person acquiring the property in any such sale or disposition or
the Person formed by or surviving any such consolidation or merger assumes all the
obligations of that Guarantor under this Indenture pursuant to a supplemental
indenture satisfactory to the Trustee; or
(B) the Net Cash Proceeds of any such sale or other disposition of a
Subsidiary Guarantor, to the extent required, are applied in accordance with the
provisions of Section 4.05 hereof; and
(3) the Company delivers, or causes to be delivered, to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that such sale, other disposition,
consolidation or merger complies with the requirements of this Indenture.
(b) In case of any such consolidation, merger, sale or conveyance and, if applicable, upon
the assumption by the successor Person, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of any Note Guarantee and the due and punctual
performance of all of the covenants and conditions of this Indenture to be performed by the
Subsidiary Guarantor, such successor Person shall succeed to and be substituted for the Subsidiary
Guarantor with the same effect as if it had been named herein as a Subsidiary Guarantor. All the
Note Guarantees so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Note Guarantees theretofore and thereafter issued in accordance with the terms of
this Indenture as though all such Note Guarantees had been issued at the date of the execution
hereof.
(c) Except as set forth in Articles IV and V hereof, and notwithstanding clauses (a) and
(b) above, nothing contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of a Subsidiary Guarantor with or into the Company or another Subsidiary
Guarantor, or shall prevent any sale or conveyance of the property of a Subsidiary Guarantor as an
entirety or substantially as an entirety to the Company or another Subsidiary Guarantor.
SECTION 10.07. Contribution.
Each Subsidiary Guarantor that makes a payment under its Note Guarantee shall be entitled upon
payment in full of all Guaranteed Obligations to contribution from each Subsidiary Guarantor, as
applicable, in an amount equal to such Subsidiary Guarantor’s pro rata portion of such payment
based on the respective net assets of all the Subsidiary Guarantors at the time of such payment
determined in accordance with GAAP.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Compliance Certificates and Opinions.
(a) Upon any application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate
stating that all conditions precedent, if any (including any covenants compliance with which
constitutes a condition precedent), provided for in this Indenture relating to the proposed action
have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any (including any covenants compliance with which constitutes a
condition precedent), have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required by any provision of
this Indenture relating to such particular application or request, no additional certificate or
opinion need be furnished.
(b) Every certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than annual statements of compliance provided pursuant to
Section 8.04) shall include:
(1) a statement that each individual signing such certificate or opinion has read
such covenant or condition and the definitions herein relating thereto;
(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 each such individual, he 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 complied with; and
(4) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
SECTION 11.02. Acts of Securityholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Securityholders or Securityholders may be
embodied in and evidenced by one or more instruments of substantially similar tenor signed by such
Securityholders in person or by an agent duly appointed in writing or may be embodied in or
evidenced by an electronic transmission which identifies the documents containing the proposal on
which such consent is requested and certifies such Securityholders’ consent thereto and agreement
to be bound thereby; and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee, and, where it is hereby
expressly required, to the Company. If any Notes are denominated in coin or currency other than
that of the United States, then for the purposes of determining whether the Holders of the
requisite principal amount of Notes have taken any action as herein described, the principal amount
of such Notes shall be deemed to be that amount of United States dollars that could be obtained for
such principal amount on the basis of the spot rate of exchange into United States dollars for the
currency in which such Notes are denominated (as evidenced to the Trustee by an Officers’
Certificate) as of the date the taking of such action by the Holders of such requisite principal
amount is evidenced to the Trustee as provided in the immediately preceding sentence. Such
instrument or instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to
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as the “Act” of the Securityholders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument or writing may
be proved by the affidavit of a witness to such execution or by the certificate of any notary
public or other officer authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution thereof. Where
such execution is by an officer of a corporation or a member of a partnership, on behalf of such
corporation or partnership, such certificate or affidavit shall also constitute sufficient proof of
his authority. The fact and date of the execution of any such instrument or writing, or the
authority of the person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the security register for the Notes.
(d) If the Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other action, the Company may, at its option, fix in advance
a record date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but the Company shall have no
obligation to do so. Such record date shall be the later of 10 days prior to the first
solicitation of such action or the date of the most recent list of Holders furnished to the Trustee
pursuant to Section 2.05. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action may be given before or after the record date,
but only the Holders of record at the close of business on the record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite proportion of Notes
outstanding have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that purpose the Notes outstanding
shall be computed as of the record date; provided that no such authorization, agreement or
consent by the Holders on the record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than six months after the record
date, and that no such authorization, agreement or consent may be amended, withdrawn or revoked
once given by a Holder, unless the Company shall provide for such amendment, withdrawal or
revocation in conjunction with such solicitation of authorizations, agreements or consents or
unless and to the extent required by applicable law.
(e) Any request, demand, authorization, direction, notice, consent, waiver or other action
by the Holder of any Note shall bind the Holder of every Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof, in respect of anything done or
suffered to be done by the Trustee or the Company in reliance thereon whether or not notation of
such action is made upon such Note.
SECTION 11.03. Notices, etc., to Trustee and Company.
(a) Any request, demand, authorization, direction, notice, consent, waiver or Act of
Securityholders or other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with:
(1) the Trustee by any Securityholder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee
at its Corporate Trust Office, Attention: Corporate Trust Services; or
(2) the Company by the Trustee or by any Securityholder shall be sufficient for
every purpose hereunder (except as provided in Section 7.05 or, in the case of a request for
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repayment, as specified in the Note carrying the right to repayment) if in writing and
mailed, first-class postage prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument, Attention: Office of
the General Counsel, or at the address last furnished in writing to the Trustee by the
Company.
(b) The Trustee agrees to accept and act upon instructions or directions pursuant to this
Indenture sent by unsecured e-mail, pdf, facsimile transmission or other similar unsecured
electronic methods, provided, however, that the Trustee shall have received an incumbency
certificate listing persons designated to give such instructions or directions and containing
specimen signatures of such designated persons, which such incumbency certificate shall be amended
and replaced whenever a person is to be added or deleted from the listing. If the Company elects
to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic
method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s
understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for
any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and
compliance with such instructions notwithstanding such instructions conflict or are inconsistent
with a subsequent written instruction. The Company agrees to assume all risks arising out of the
use of such electronic methods to submit instructions and directions to the Trustee, including
without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or
interception and misuse by third parties.
SECTION 11.04. Notices to Securityholders; Waiver.
Where this Indenture or any Note provides for notice to Securityholders of any event, such
notice shall be sufficiently given (unless otherwise herein or in such Note expressly provided) if
in writing and mailed, first-class postage prepaid, to each Securityholder affected by such event,
at his address as it appears in the security register for the Notes, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Securityholders is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Securityholder shall affect the sufficiency
of such notice with respect to other Securityholders. Where this Indenture or any Note provides
for notice in any manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Securityholders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of regular mail service as a result of a strike, work
stoppage or otherwise, it shall be impractical to mail notice of any event to any Securityholder
when such notice is required to be given pursuant to any provision of this Indenture, then any
method of notification as shall be satisfactory to the Trustee and the Company shall be deemed to
be a sufficient giving of such notice.
SECTION 11.05. Conflict with Trust Indenture Act.
If and to the extent that any provision hereof limits, qualifies or conflicts with the duties
imposed by, or with another provision (an “incorporated provision”) included in this
Indenture by operation of, any of Sections 310 to 318, inclusive, of the Trust Indenture Act, such
imposed duties or incorporated provision shall control.
SECTION 11.06. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
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SECTION 11.07. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and the Subsidiary Guarantors,
if any, shall bind their respective successors and assigns, whether so expressed or not.
SECTION 11.08. Separability Clause.
In case any provision in this Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 11.09. Benefits of Indenture.
Nothing in this Indenture or in any Notes, express or implied, shall give to any Person, other
than the parties hereto and their successors hereunder, any Authenticating Agent or Paying Agent,
the Registrar and the Holders of Notes (or such of them as may be affected thereby), any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 11.10. Governing Law; Waiver of Jury Trial.
This Indenture shall be construed in accordance with and governed by the laws of the State of
New York. EACH OF THE COMPANY, THE SUBSIDIARY GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE
TRANSACTION CONTEMPLATED HEREBY.
SECTION 11.11. Counterparts.
This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or
PDF transmission shall constitute effective execution and delivery of this Indenture as to the
parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of
the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures
for all purposes.
SECTION 11.12. U.S.A. Patriot Act.
The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act,
the Trustee, like all financial institutions and in order to help fight the funding of terrorism
and money laundering, is required to obtain, verify, and record information that identifies each
person or legal entity that establishes a relationship or opens an account with the Trustee. The
parties to this Indenture agree that they will provide the Trustee with such information as it may
request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.
SECTION 11.13. Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of
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utilities, communications or computer (software and hardware) services; it being understood
that the Trustee shall use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the circumstances.
[Signature Pages Follow]
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the date first written above.
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VISTEON CORPORATION
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By: |
/s/ Xxxxxxx X. Xxxxx
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Name: |
Xxxxxxx X. Xxxxx |
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Title: |
Vice President & Treasurer |
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VISTEON ELECTRONICS CORPORATION
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By: |
/s/ Xxxxxxx X. Xxxxx
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Name: |
Xxxxxxx X. Xxxxx |
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Title: |
Treasurer |
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VISTEON EUROPEAN HOLDINGS, INC.
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By: |
/s/ Xxxxxxx X. Xxxxx
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Name: |
Xxxxxxx X. Xxxxx |
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Title: |
Treasurer |
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VISTEON INTERNATIONAL BUSINESS DEVELOPMENT, INC.
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By: |
/s/ Xxxxxxx X. Xxxxx
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Name: |
Xxxxxxx X. Xxxxx |
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Title: |
Treasurer |
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VISTEON INTERNATIONAL HOLDINGS, INC.
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By: |
/s/ Xxxxxxx X. Xxxxx
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Name: |
Xxxxxxx X. Xxxxx |
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Title: |
Treasurer |
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S-1
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VISTEON GLOBAL TREASURY, INC.
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By: |
/s/ Xxxxxxx X. Xxxxx
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Name: |
Xxxxxxx X. Xxxxx |
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Title: |
Treasurer |
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VISTEON SYSTEMS, LLC
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By: |
/s/ Xxxxxxx X. Xxxxx
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Name: |
Xxxxxxx X. Xxxxx |
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Title: |
Treasurer |
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VISTEON GLOBAL TECHNOLOGIES, INC.
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By: |
/s/ Xxxxxxx X. Xxxxx
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Name: |
Xxxxxxx X. Xxxxx |
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Title: |
Treasurer |
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VC AVIATION SERVICES, LLC
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By: |
/s/ Xxxxxxx X. Xxxxx
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Name: |
Xxxxxxx X. Xxxxx |
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Title: |
Treasurer |
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S-2
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as
Trustee
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By: |
/s/ X. Xxxxxxxx
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Name: |
X. Xxxxxxxx |
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Title: |
Vice President |
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S-3
EXHIBIT A
6.75% Senior Notes
due April 15, 2019
CUSIP No.:
VISTEON CORPORATION, a Delaware corporation (the “
Company,” which term includes any
successor corporation), for value received promises to pay to Cede & Co. or registered assigns, the
principal sum of [ ] Dollars [or such other amount as is provided in the schedule attached
hereto]
1, on April 15, 2019.
Interest Payment Dates: April 15 and October 15, commencing October 15, 2011.
Record Dates: April 1 and October 1.
Reference is made to the further provisions of this Note contained herein, which will for all
purposes have the same effect as if set forth at this place.
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This language shall be included only if
the Notes are issued in global form. |
A-1
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by
its duly authorized officers.
Dated: [Date of Execution]
Dated: [Date of Execution]
A-2
CERTIFICATE OF AUTHENTICATION
This is one of the 6.75% Senior Notes due 2019 referenced in the within-mentioned Indenture.
Dated: [Date of Authentication]
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as
Trustee
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By: |
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Authorized Signatory |
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A-3
(REVERSE OF SECURITY)
6.75% Senior Notes
due April 15, 2019
1. Interest.
VISTEON CORPORATION, a Delaware corporation (the “
Company”), promises to pay interest
on the principal amount of this Note at the rate per annum shown above. The Company will pay
interest semi-annually on April 15 and October 15 of each year (an “
Interest Payment
Date”), commencing October 15, 2011. Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from April 6, 2011.
Interest will be computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal from time to time on demand at the same
rate per annum borne by the Notes (without regard to any applicable grace periods) to the extent
lawful.
2. Method of Payment.
The Company shall pay interest on the Notes (except defaulted interest) to the persons who are
the registered Holders at the close of business on April 1 or October 1 (the “Record Date”)
immediately preceding the Interest Payment Date even if the Notes are canceled on registration of
transfer or registration of exchange after such Record Date. Holders must surrender Notes to a
Paying Agent to collect principal payments. The Company shall pay principal and interest in money
of the United States that at the time of payment is legal tender for payment of public and private
debts. The Company may deliver any such interest payment to the Paying Agent or to a Holder at the
Holder’s registered address.
3. Paying Agent and Registrar.
Initially, The Bank of
New York Mellon Trust Company, N.A. (the “
Trustee”) will act as
Paying Agent and Registrar. The Company may change any Paying Agent, Registrar or co-Registrar
without notice to the Holders.
4. Indenture.
The Company issued the Notes under an indenture by and among the Company, the Subsidiary
Guarantors (as defined in the Indenture) and the Trustee, dated as of April 6, 2011 (the
“Indenture” ). Capitalized terms herein are used as defined in the Indenture unless
otherwise defined herein. 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 (15 U.S.C. §§
77aaa-77bbbb) (the “TIA”), as in effect on the date of the Indenture until such time as the
Indenture is qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA. Notwithstanding anything to the contrary herein, the Notes
are governed by all such terms, and Holders of Notes are referred to the Indenture and the TIA for
a statement of them.
5. Optional Redemption.
The Notes will be redeemable, at the Company’s option, in whole at any time or in part from
time to time, on and after April 15, 2014 upon not less than 30 nor more than 60 days’ notice,
unless a shorter
A-4
notice period shall be agreed to by the Trustee, at the following redemption prices (expressed
as percentages of the principal amount thereof) if redeemed during the 12-month period commencing
on April 15 of the applicable year set forth below, plus, in each case, accrued and unpaid
interest, if any, to (but not including) the date of redemption (subject to the right of holders of
record on the relevant record date to receive interest due on the relevant interest payment date):
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Year |
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Redemption Price |
2014 |
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105.063 |
% |
2015 |
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103.375 |
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2016 |
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101.688 |
% |
2017 and thereafter |
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100.000 |
% |
At any time prior to April 15, 2014, the Notes may also be redeemed in whole or in part, at
the Company’s option, at a redemption price equal to 100% of the principal amount thereof plus the
Applicable Premium as of, and accrued but unpaid interest, if any, to (but not including) the date
of redemption (subject to the right of holders of record on the relevant record date to receive
interest due on the relevant interest payment date).
At any time prior to April 15, 2014, during any 12-month period commencing on the Issue Date,
we may, at our option, redeem up to 10% of the aggregate principal amount of the Notes at a
redemption price equal to 103% of the principal amount thereof, plus accrued and unpaid interest,
if any, to (but not including) the date of redemption (subject to the right of holders of record on
the relevant record date to receive interest due on the relevant interest payment date).
6. Optional Redemption upon Equity Offerings.
At any time, or from time to time, on or prior to April 15, 2014, the Company may, at its
option, use all or any portion of the net cash proceeds of one or more Equity Offerings to redeem
up to 35% of the aggregate principal amount of the Notes issued at a redemption price equal to
106.750% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of
redemption (subject to the right of holders of record on the relevant record date to receive
interest due on the relevant interest payment date); provided that at least 65% of the
aggregate principal amount of Notes issued remains outstanding immediately after any such
redemption. In order to effect the foregoing redemption with the proceeds of any Equity Offering,
the Company shall make such redemption not more than 90 days after the consummation of any such
Equity Offering.
7. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more than 60 days before the
Redemption Date, unless a shorter notice period shall be agreed to by the Trustee, to each Holder
of Notes to be redeemed at such Holder’s registered address. Notes in denominations of $2,000 may
be redeemed only in whole. The Trustee may select for redemption portions (equal to $1,000 or any
integral multiple thereof) of the principal of Notes that have denominations larger than $2,000.
If any Note is to be redeemed in part only, the notice of redemption that relates to such Note
shall state the portion of the principal amount thereof to be redeemed. A new Note in a principal
amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof
upon cancellation of the original Note. On and after the Redemption Date, interest will cease to
accrue on Notes or portions thereof called for redemption.
A-5
8. Change of Control Offer.
Upon the occurrence of a Change of Control, the Company will be required to offer to purchase
all of the outstanding Notes at a purchase price equal to 101% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of repurchase.
9. Limitation on Disposition of Assets.
The Company is, subject to certain conditions, obligated to make an offer to purchase Notes at
100% of their principal amount plus accrued and unpaid interest to the date of repurchase with
certain net cash proceeds of certain sales or other dispositions of assets in accordance with the
Indenture.
10. Registration Rights.
Pursuant to a Registration Rights Agreement among the Company, the Subsidiary Guarantors and
the initial purchasers party thereto, the Company will be obligated, under certain circumstances,
to consummate an exchange offer pursuant to which the Holder of this Note shall have the right to
exchange this Note for notes which have been registered under the Securities Act, in like principal
amount and having substantially identical terms as the Notes. The Holders shall be entitled to
receive certain additional interest payments in the event such exchange offer is not consummated
and upon certain other conditions, all pursuant to and in accordance with the terms of the
Registration Rights Agreement.2
11. Denominations; Transfer; Exchange.
The Notes are in registered form, without coupons, in denominations of $2,000 and integral
multiples of $1,000. A Holder shall register the transfer of or exchange Notes in accordance with
the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay certain transfer taxes or similar governmental
charges payable in connection therewith as permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Notes or portions thereof selected for redemption, except
the unredeemed portion of any security being redeemed in part.
12. Persons Deemed Owners.
The registered Holder of a Note shall be treated as the owner of it for all purposes.
13. Unclaimed Funds.
Subject to any applicable escheat laws, if funds for the payment of principal or interest
remain unclaimed for two years, the Trustee and the Paying Agent will repay the funds to the
Company at its written request. After that, all liability of the Trustee and such Paying Agent
with respect to such funds shall cease.
14. Legal Defeasance and Covenant Defeasance.
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This Section does not appear on Exchange
Securities or Additional Notes unless required by the terms of such Additional
Notes. |
A-6
The Company may be discharged from its obligations under the Indenture and the Notes except
for certain provisions thereof, and may be discharged from its obligations to comply with certain
covenants contained in the Indenture and the Notes, in each case upon satisfaction of certain
conditions specified in the Indenture.
15. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may be amended or supplemented with
the written consent of the Holders of at least a majority in aggregate principal amount of the
Notes then outstanding, and any existing Default or Event of Default or compliance with any
provision may be waived with the consent of the Holders of a majority in aggregate principal amount
of the Notes then outstanding. Without notice to or consent of any Holder, the parties thereto may
amend or supplement the Indenture or the Notes to, among other things, cure any ambiguity, defect
or inconsistency, provide for uncertificated Notes in addition to or in place of certificated Notes
or comply with any requirements of the Commission in connection with the qualification of the
Indenture under the TIA, or make any other change that does not materially adversely affect the
rights of any Holder of a Note.
16. Restrictive Covenants.
The Indenture contains certain covenants that, among other things, limit the ability of the
Company and certain of its subsidiaries to make restricted payments, to incur indebtedness, to
create liens, to issue preferred or other capital stock of subsidiaries, to sell assets, to permit
restrictions on dividends and other payments by subsidiaries to the Company, to consolidate, merge
or sell all or substantially all of its assets, to engage in transactions with affiliates or to
engage in certain businesses. The limitations are subject to a number of important qualifications
and exceptions.
17. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of Notes then outstanding may declare all the Notes to be due and
payable immediately in the manner and with the effect provided in the Indenture. Holders of Notes
may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not
obligated to enforce the Indenture or the Notes unless it has received indemnity or security
satisfactory to it. The Indenture permits, subject to certain limitations therein provided,
Holders of a majority in aggregate principal amount of the Notes then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes
notice of any continuing Default or Event of Default (except a Default in payment of principal,
premium or interest, including an accelerated payment) if it determines that withholding notice is
in their interest.
18. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity, may become the owner
or pledgee of Notes and may otherwise deal with the Company, its Subsidiaries, any Guarantor and
their respective Affiliates as if it were not the Trustee.
19. Guarantees.
This Note will be entitled to the benefits of certain Note Guarantees made for the benefit of
the Holders. Reference is hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and obligations thereunder of the Subsidiary Guarantors, the Trustee
and the Holders.
A-7
20. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as such, of the Company shall
have any liability for any obligation of the Company under the Notes or the Indenture or for any
claim based on, in respect of or by reason of, such obligations or their creation. Each Holder of
a Note by accepting a Note waives and releases all such liability. The waiver and release are part
of the consideration for the issuance of the Notes.
21. Authentication.
This Note shall not be valid until the Trustee or authenticating agent signs the certificate
of authentication on this Note.
22. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Note 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).
23. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed on the Notes as a convenience to the
Holders of the Notes. No representation is made as to the accuracy of such numbers as printed on
the Notes and reliance may be placed only on the other identification numbers printed hereon.
A-8
ASSIGNMENT FORM
I or we assign and transfer this Note to
(Print or type name, address and zip code of assignee or transferee)
(Insert Social Security or other identifying number of assignee or transferee)
agent to transfer this Note on the books of the Company.
The agent may substitute another to act for him.
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Dated:
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Signed: |
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(Sign exactly as name appears on the other side of this Note) |
Signature Guarantee:_______________________
SIGNATURE GUARANTEE
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of
the Registrar, which requirements include membership or participation in the Security Transfer
Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined
by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 4.05 or
Section 4.17 of the Indenture, check the appropriate box:
Section 4.05 o Section 4.17 o
If you want to elect to have only part of this Note purchased by the Company pursuant to
Section 4.05 or Section 4.17 of the Indenture, state the amount: $ _______
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Dated:
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Signed: |
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(Sign exactly as name appears on the other side of this Note) |
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Signature Guarantee |
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SIGNATURE GUARANTEE
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of
the Registrar, which requirements include membership or participation in the Security Transfer
Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined
by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-10
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE3
The following exchanges of a part of this Global Note for an interest in another Global
Note or for a Physical Note, or exchanges of a part of another Global Note or Physical Note for an
interest in this Global Note, have been made:
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Principal Amount of |
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Signature of |
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following such decrease |
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Trustee or Note |
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this Global Note |
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this Global Note |
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(or increase) |
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Custodian |
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This schedule should be included only if
the Note is issued in global form. |
A-11
EXHIBIT B
[FORM OF LEGEND FOR 144A NOTES AND
OTHER NOTES THAT ARE RESTRICTED NOTES]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF,
THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL
NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO
VISTEON CORPORATION (THE “COMPANY”) OR
ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED
INVESTOR (AS DEFINED IN RULE 501(A)(1), (2),(3), OR (7) UNDER THE SECURITIES ACT) (AN “ACCREDITED
INVESTOR”) THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S.
BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM THE TRUSTEE FOR THIS SECURITY), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL IF THE COMPANY SO REQUESTS) OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS
“OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANING GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.
B-1
[FORM OF ASSIGNMENT FOR 144A NOTES AND OTHER NOTES
THAT ARE RESTRICTED NOTES]
I or we assign and transfer this Note to:
(Insert assignee’s social security or tax I.D. number)
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
Agent to transfer this Note on the books of the Company. The Agent may substitute another to act
for him.
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[Check One] |
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o (a)
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this Note is being transferred in compliance with the exemption from registration
under the Securities Act provided by Rule 144A thereunder. |
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or |
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o (b)
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this Note is being transferred other than in accordance with (a) above and documents
are being furnished which comply with the conditions of transfer set forth in this Note and
the Indenture. |
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be obligated to
register this Note in the name of any person other than the Holder hereof unless and until the
conditions to any such transfer of registration set forth herein and in Sections 2.15 and 2.16 of
the Indenture shall have been satisfied.
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Date:
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Your Signature: |
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(Sign exactly as your name appears on the face of this Note) |
SIGNATURE GUARANTEE
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of
the Registrar, which requirements include membership or participation in the Security Transfer
Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined
by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
B-2
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this Note for its own account or
an account with respect to which it exercises sole investment discretion and that it and any such
account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities
Act and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Company as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned’s foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
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Dated: |
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NOTICE: To be executed by an executive officer |
B-3
EXHIBIT C
[FORM OF LEGEND FOR REGULATION S NOTE]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS
ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS
PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
“RESALE RESTRICTION TERMINATION DATE”) THAT IS 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG
AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A
PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, OR (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE
MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL
ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF
$250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH
ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
C-1
[FORM OF ASSIGNMENT FOR REGULATION S NOTE]
I or we assign and transfer this Note to:
(Insert assignee’s social security or tax I.D. number)
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
Agent to transfer this Note on the books of the Company. The Agent may substitute another to act
for him.
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[Check One] |
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o (a)
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this Note is being transferred in compliance with the exemption from registration
under the Securities Act provided by Rule 144A thereunder. |
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or |
o (b)
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this Note is being transferred other than in accordance with (a) above and documents
are being furnished which comply with the conditions of transfer set forth in this Note and
the Indenture. |
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be obligated to
register this Note in the name of any person other than the Holder hereof unless and until the
conditions to any such transfer of registration set forth herein and in Sections 2.15 and 2.16 of
the Indenture shall have been satisfied.
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Date:
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Your Signature: |
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(Sign exactly as your name appears on the face of this Note) |
SIGNATURE GUARANTEE
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of
the Registrar, which requirements include membership or participation in the Security Transfer
Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined
by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
C-2
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this Note for its own account or
an account with respect to which it exercises sole investment discretion and that it and any such
account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities
Act and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Company as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned’s foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
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Dated: |
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NOTICE: To be executed by an executive officer |
C-3
EXHIBIT D
[FORM OF GLOBAL NOTE LEGEND]
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY.
THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE
OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
D-1
EXHIBIT E
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
The Bank of New York Mellon Trust Company, N.A.
Attn: Corporate Trust Administration
0 Xxxxx XxXxxxx Xx., Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Corporate Trust Services
Ladies and Gentlemen:
In connection with our proposed purchase of 6.75% Senior Notes due 2019 (the “Notes”) of
Visteon Corporation, a Delaware corporation (the “Issuer”), we confirm that:
1. We understand that any subsequent transfer of the Notes is subject to certain
restrictions and conditions set forth in the Indenture dated as of April 6, 2011 relating to
the Notes and we agree to be bound by, and not to resell, pledge or otherwise transfer the
Notes except in compliance with, such restrictions and conditions and the Securities Act of
1933, as amended (the “Securities Act”).
2. We understand that the Notes have not been registered under the Securities Act or
any other applicable securities laws, have not been and will not be qualified for sale under
the securities laws of any non-U.S. jurisdiction and that the Notes may not be offered,
sold, pledged or otherwise transferred 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 any Notes, we will do so only (i) to the Issuer
or any subsidiary thereof, (ii) in accordance with Rule 144A under the Securities Act to a
“qualified institutional buyer” (as defined in Rule 144A), (iii) to an institutional
“accredited investor” (as defined below) that, prior to such transfer, furnishes (or has
furnished on its behalf by a U.S. broker-dealer) to you a signed letter containing certain
representations and agreements relating to the restrictions on transfer of the Notes, (iv)
outside the United States to persons other than U.S. persons in offshore transactions
meeting the requirements of Rule 904 of Regulation S under the Securities Act, (v) pursuant
to the exemption form registration provided by Rule 144 under the Securities Act (if
applicable) or (vi) pursuant to an effective registration statement, and we further agree to
provide to any person purchasing any of the Notes from us a notice advising such purchaser
that resales of the Notes are restricted as stated herein.
3. We understand that, on any proposed resale of any Notes, we will be required to
furnish to you and the Issuer such certifications, legal opinions and other information as
you and the Issuer 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.
4. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act) and have such knowledge and experience in financial and
E-1
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 each are able to bear the
economic risk of our or their investment, as the case may be.
5. We are acquiring the Notes purchased by us for our 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.
6. We are not acquiring the Notes with a view toward the distribution thereof in a
transaction that would violate the Securities Act or the securities laws of any state of the
United States or any other applicable jurisdiction.
You 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 proceeding or
official inquiry with respect to the matters covered hereby.
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Very truly yours,
[Name of Transferee]
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Date: _______________________
E-2
EXHIBIT F
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
The Bank of New York Mellon Trust Company, N.A.
Attn: Corporate Trust Administration
0 Xxxxx XxXxxxx Xx., Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Corporate Trust Services
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Re: |
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Visteon Corporation (the “Issuer”)
6.75% Senior Notes due 2019 (the “Notes”) |
Dear Sirs:
In connection with our proposed sale of $__________ aggregate principal amount of the Notes,
we confirm that such sale has been effected pursuant to and in accordance with Regulation S under
the U.S. Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, we represent
that:
(1) the offer of the Notes was not made to a U.S. person or to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the transferee was outside the
United States or we and any person acting on our behalf reasonably believed that the
transferee was outside the United States, or (b) the transaction was executed in, on or
through the facilities of a designated off-shore securities market and neither we nor any
person acting on our behalf knows that the transaction has been pre-arranged with a buyer in
the United States;
(3) no directed selling efforts have been made in the United States in contravention of
the requirements of Rule 904(a) of Regulation S;
(4) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions applicable to the
Notes.
F-1
You 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. Terms used in this certificate have
the meanings set forth in Regulation S.
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Very truly yours,
[Name of Transferee]
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F-2
EXHIBIT G
NOTE GUARANTEE
For value received, each of the undersigned (including any successor Person under the
Indenture) hereby unconditionally guarantees, jointly and severally, to the extent set forth in the
Indenture (as defined below) to the Holder of this Note the payment of principal, premium, if any,
and interest on this Note in the amounts and at the times when due and interest on the overdue
principal, premium, if any, and interest, if any, of this Note when due, if lawful, and, to the
extent permitted by law, the payment or performance of all other obligations of the Company under
the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and
subject to the terms and limitations of this Note, the Indenture, including Article X thereof, and
this Note Guarantee. This Note Guarantee will become effective in accordance with Article X of the
Indenture and its terms shall be evidenced therein. The validity and enforceability of any Note
Guarantee shall not be affected by the fact that it is not affixed to any particular Note.
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the
Indenture dated as of April 6, 2011, among Visteon Corporation, a Delaware corporation (the
“Company”), the Subsidiary Guarantors named therein and The Bank of New York Mellon Trust
Company, N.A., as trustee (the “Trustee”), as amended or supplemented (the
“Indenture”).
The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this
Note Guarantee and the Indenture are expressly set forth in Article X of the Indenture and
reference is hereby made to the Indenture for the precise terms of the Note Guarantee and all of
the other provisions of the Indenture to which this Note Guarantee relates.
No director, officer, employee, incorporator, stockholder, member or manager of any Subsidiary
Guarantor, as such, shall have any liability for any obligations of such Subsidiary Guarantors
under such Subsidiary Guarantors’ Note Guarantee or the Indenture or for any claim based on, in
respect of, or by reason of, such obligation or its creation.
This Note Guarantee shall be governed by, and construed in accordance with, the laws of the
State of New York.
This Note Guarantee is subject to release upon the terms set forth in the Indenture.
G-1
IN WITNESS WHEREOF, each Subsidiary Guarantor has caused its Note Guarantee to be duly
executed.
Date: April 6, 2011
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VISTEON ELECTRONICS CORPORATION
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By: |
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Name: |
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Title: |
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VISTEON EUROPEAN HOLDINGS, INC.
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By: |
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Name: |
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Title: |
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VISTEON INTERNATIONAL BUSINESS DEVELOPMENT, INC.
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By: |
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Name: |
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Title: |
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VISTEON INTERNATIONAL HOLDINGS, INC.
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By: |
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Name: |
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Title: |
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VISTEON GLOBAL TREASURY, INC.
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G-2
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VISTEON SYSTEMS, LLC
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By: |
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Name: |
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Title: |
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VISTEON GLOBAL TECHNOLOGIES, INC.
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By: |
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Name: |
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Title: |
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VC AVIATION SERVICES, LLC
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By: |
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Name: |
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Title: |
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G3