EXECUTION VERSION
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INDENTURE
DATED AS OF SEPTEMBER 24, 2008
AMONG
XXXXXXX & XXXXX XXXXXXXXX'X INC.
THE GUARANTORS NAMED ON THE SIGNATURE PAGES HERETO
AND
THE BANK OF NEW YORK MELLON,
AS TRUSTEE
14% SENIOR SECURED NOTES DUE 2013
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8499/40692-065 Current/12106273v10
CROSS-REFERENCE TABLE*
Trust Indenture Act Section Indenture Section
310(a)(1).................................................... 7.10
(a)(2).................................................. 7.10
(a)(3).................................................. N.A.
(a)(4).................................................. N.A.
(a)(5).................................................. 7.10
(b)..................................................... 7.10
(c)..................................................... N.A.
311(a)....................................................... 7.11
(b)..................................................... 7.11
(c)..................................................... N.A.
312(a)....................................................... 2.05
(b)..................................................... 12.03
(c)..................................................... 12.03
313(a)....................................................... 7.06
(b)(1).................................................. N.A.
(b)(2).................................................. 7.06; 7.07
(c)..................................................... 7.06; 12.02
(d)..................................................... 7.06
314(a)....................................................... 4.03; 12.02; 12.05
(b)..................................................... N.A.
(c)(1).................................................. 12.04
(c)(2).................................................. 12.04
(c)(3).................................................. N.A.
(d)..................................................... N.A.
(e)..................................................... 12.05
(f)..................................................... N.A.
315(a)....................................................... 7.01
(b)..................................................... 7.05; 12.02
(c)..................................................... 7.01
(d)..................................................... 7.01
(e)..................................................... 6.14
316(a)(last sentence)........................................ 2.09
(a)(1)(A)............................................... 6.05
(a)(1)(B)............................................... 6.04
(a)(2).................................................. N.A.
(b)..................................................... 6.07
(c)..................................................... 2.12; 9.04
317(a)(1).................................................... 6.08
(a)(2).................................................. 6.12
(b)..................................................... 2.04
315(a)....................................................... 12.01
(b)..................................................... N.A.
(c)..................................................... 12.01
--------------------------------------------------------------------------------
N.A. means not applicable.
* This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE...............1
Section 1.01 Definitions..........................................1
Section 1.02 Other Definitions...................................24
Section 1.03 Incorporation by Reference of Trust Indenture Act...25
Section 1.04 Rules of Construction...............................25
Section 1.05 Acts of Holders.....................................26
ARTICLE 2 THE NOTES...............................................27
Section 2.01 Form and Dating; Terms..............................27
Section 2.02 Execution and Authentication........................28
Section 2.03 Registrar, Paying Agent and Calculation Agent.......28
Section 2.04 Paying Agent to Hold Money in Trust.................29
Section 2.05 Holder Lists........................................29
Section 2.06 Transfer and Exchange...............................29
Section 2.07 Replacement Notes...................................40
Section 2.08 Outstanding Notes...................................40
Section 2.09 Treasury Notes......................................40
Section 2.10 Temporary Notes.....................................41
Section 2.11 Cancellation........................................41
Section 2.12 Defaulted Interest..................................41
Section 2.13 CUSIP Numbers.......................................42
ARTICLE 3 REDEMPTION..............................................42
Section 3.01 Notices to Trustee..................................42
Section 3.02 Selection of Notes to Be Redeemed or Purchased......42
Section 3.03 Notice of Redemption or Repurchase..................43
Section 3.04 Effect of Notice of Redemption......................44
Section 3.05 Deposit of Redemption or Purchase Price.............44
Section 3.06 Notes Redeemed or Purchased in Part.................44
Section 3.07 Optional Redemption.................................44
Section 3.08 Mandatory Redemption................................45
Section 3.09 Offers to Repurchase by Application of Excess
Proceeds or Excess Cash Flow........................45
ARTICLE 4 COVENANTS...............................................47
Section 4.01 Payment of Notes....................................47
Section 4.02 Maintenance of Office or Agency.....................47
Section 4.03 Reports.............................................48
Section 4.04 Compliance Certificate..............................50
Section 4.05 Taxes...............................................51
Section 4.06 Stay, Extension and Usury Laws......................51
Section 4.07 Limitation on Restricted Payments...................51
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Section 4.08 Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries.............................54
Section 4.09 Limitation on Incurrence of Indebtedness............55
Section 4.10 Asset Sales.........................................58
Section 4.11 Excess Cash Flow Offer..............................59
Section 4.12 Transactions with Affiliates........................60
Section 4.13 Liens...............................................62
Section 4.14 Corporate Existence.................................62
Section 4.15 Offer to Repurchase upon Change of Control..........62
Section 4.16 Sale and Leaseback Transactions.....................64
Section 4.17 Issuances and Sales of Equity Interests in
Subsidiaries........................................64
Section 4.18 Business Activities.................................65
Section 4.19 Limitation on Capital Expenditures..................65
Section 4.20 Payments for Consent................................66
Section 4.21 Subsidiary Guarantees...............................66
Section 4.22 Impairment of Security Interest.....................67
Section 4.23 Real Estate Mortgages and Filings...................67
Section 4.24 Landlord Waivers....................................68
ARTICLE 5 SUCCESSORS..............................................68
Section 5.01 Merger, Consolidation or Sale of All or
Substantially All Assets............................68
Section 5.02 Successor Corporation Substituted...................69
ARTICLE 6 DEFAULTS AND REMEDIES...................................69
Section 6.01 Events of Default...................................69
Section 6.02 Acceleration........................................71
Section 6.03 Other Remedies......................................72
Section 6.04 Waiver of Past Defaults.............................72
Section 6.05 Control by Majority.................................72
Section 6.06 Limitation on Suits.................................72
Section 6.07 Rights of Holders of Notes to Receive Payment.......73
Section 6.08 Collection Suit by Trustee..........................73
Section 6.09 Restoration of Rights and Remedies..................73
Section 6.10 Rights and Remedies Cumulative......................73
Section 6.11 Delay or Omission Not Waiver........................73
Section 6.12 Trustee May File Proofs of Claim....................74
Section 6.13 Priorities..........................................74
Section 6.14 Undertaking for Costs...............................74
ARTICLE 7 TRUSTEE.................................................75
Section 7.01 Duties of Trustee...................................75
Section 7.02 Rights of Trustee...................................76
Section 7.03 Individual Rights of Trustee........................77
Section 7.04 Trustee's Disclaimer................................77
Section 7.05 Notice of Defaults..................................77
Section 7.06 Reports by Trustee to Holders of the Notes..........77
Section 7.07 Compensation and Indemnity..........................78
Section 7.08 Replacement of Trustee..............................78
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Section 7.09 Successor Trustee by Merger, etc....................79
Section 7.10 Eligibility; Disqualification.......................79
Section 7.11 Preferential Collection of Claims Against Company...80
Section 7.12 Trustee in Other Capacities; Collateral Agent.......80
Section 7.13 Co-Trustees, Co-Collateral Agent and Separate
Trustees, Collateral Agent..........................80
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE................81
Section 8.01 Option to Effect Legal Defeasance or Covenant
Defeasance..........................................81
Section 8.02 Legal Defeasance and Discharge......................81
Section 8.03 Covenant Defeasance.................................82
Section 8.04 Conditions to Legal or Covenant Defeasance..........83
Section 8.05 Deposited Money and Government Securities to
Be Held in Trust; Other Miscellaneous Provisions....84
Section 8.06 Repayment to Company................................84
Section 8.07 Reinstatement.......................................84
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER........................85
Section 9.01 Without Consent of Holders of Notes.................85
Section 9.02 With Consent of Holders of Notes....................85
Section 9.03 Compliance with Trust Indenture Act.................87
Section 9.04 Revocation and Effect of Consents...................87
Section 9.05 Notation on or Exchange of Notes....................88
Section 9.06 Trustee to Sign Amendments, etc.....................88
ARTICLE 10 GUARANTEES..............................................88
Section 10.01 Guarantee...........................................88
Section 10.02 Limitation on Guarantor Liability...................90
Section 10.03 Execution and Delivery..............................90
Section 10.04 Subrogation.........................................91
Section 10.05 Benefits Acknowledged...............................91
Section 10.06 Release of Guarantees...............................91
ARTICLE 11 SATISFACTION AND DISCHARGE..............................92
Section 11.01 Satisfaction and Discharge..........................92
Section 11.02 Application of Trust Money..........................92
Section 11.03 Acknowledgment of Discharge by Trustee..............93
ARTICLE 12 MISCELLANEOUS...........................................93
Section 12.01 Trust Indenture Act Controls........................93
Section 12.02 Notices.............................................93
Section 12.03 Communication by Holders of Notes with Other
Holders of Notes....................................94
Section 12.04 Certificate and Opinion as to Conditions
Precedent...........................................95
Section 12.05 Statements Required in Certificate or Opinion.......95
Section 12.06 Rules by Trustee and Agents.........................95
Section 12.07 No Personal Liability of Directors, Officers,
Employees and Stockholders..........................95
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Section 12.08 Governing Law.......................................96
Section 12.09 Waiver of Jury Trial................................96
Section 12.10 Force Majeure.......................................96
Section 12.11 No Adverse Interpretation of Other Agreements.......96
Section 12.12 Successors..........................................96
Section 12.13 Severability........................................96
Section 12.14 Counterpart Originals...............................96
Section 12.15 Table of Contents, Headings, etc....................97
ARTICLE 13 AGREEMENT TO SUBORDINATE SECURITY INTERESTS; SECURITY...97
Section 13.01 Grant of Security Interest..........................97
Section 13.02 Intercreditor Agreement.............................98
Section 13.03 Recording and Opinions..............................98
Section 13.04 Release of Collateral...............................99
Section 13.05 Specified Releases of Collateral....................99
Section 13.06 Release upon Satisfaction or Defeasance of
all Outstanding Obligation........s................100
Section 13.07 Form and Sufficiency of Release....................100
Section 13.08 Purchaser Protected................................100
Section 13.09 Authorization of Actions to be Taken by the
Collateral Agent Under the Collateral Agreements...100
Section 13.10 Authorization of Receipt of Funds by the
Collateral Agent Under the Collateral Agreements...101
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INDENTURE, dated as of September 24, 2008, among Xxxxxxx & Xxxxx
Xxxxxxxxx'x Inc., a Delaware corporation (the "Company"), the Guarantors (as
defined herein) listed on the signature pages hereto and The Bank of New York
Mellon, a New York banking corporation, as trustee (in such capacity, the
"Trustee") and as collateral agent (in such capacity, the "Collateral Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company has duly authorized the creation of an issue of
$132,000,000 aggregate principal amount of 14% Senior Secured Notes due 2013
(the "Notes");
WHEREAS, the obligations will be unconditionally and irrevocably
guaranteed by the Guarantors; and
WHEREAS, the Company and each of the Guarantors has duly authorized the
execution and delivery of this Indenture.
NOW, THEREFORE, the parties hereto agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders of the Notes.
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01......DEFINITIONS.
"144A GLOBAL NOTE" means a Global Note substantially in the form of
Exhibit A hereto, as the case may be, bearing the Global Note Legend and the
Private Placement Legend and deposited with or on behalf of, and registered in
the name of, the Depositary or its nominee that will be issued in a denomination
equal to the outstanding principal amount of the Notes sold in reliance on Rule
144A.
"ACQUIRED DEBT" means, with respect to any specified Person,
Indebtedness of any other Person existing at the time such other Person is
merged with or into or becomes a Restricted Subsidiary of such specified Person
or assumed 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 Subsidiary of the Company or such
acquisition, merger or consolidation; PROVIDED, HOWEVER, that no Acquired Debt
shall be secured by a Lien.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; PROVIDED that
beneficial ownership of 10% or more of the Voting Stock of a Person shall be
deemed to be control.
"AGENT" means any Registrar or Paying Agent.
"APPLICABLE PREMIUM" means, with respect to any Note on any Redemption
Date, the greater of:
(1) 1.0% of the principal amount of any Note; or
(2) the excess of:
(a) the present value at such redemption date of (i) the
redemption price of the Note at May 31, 2011 (such redemption price
being set forth in SECTION 3.07 hereof), plus (ii) all required
interest payments due on the Note through May 31, 2011 (excluding
accrued but unpaid interest to the Redemption Date), computed using a
discount rate equal to the Treasury Rate as of such Redemption Date
plus 50 basis points; over
(b) the principal amount of the Note, if greater.
"APPLICABLE PROCEDURES" means, with respect to any transfer,
redemption or exchange of or for beneficial interests in any Global Note, the
rules and procedures of the Depositary, Euroclear and/or Clearstream that apply
to such transfer, redemption or exchange.
"ASSET ACQUISITION" means, with respect to any Person, (1) an
Investment by such Person or any Restricted Subsidiary of such Person in any
third Person pursuant to which such third Person shall become a Restricted
Subsidiary of such Person or any Restricted Subsidiary of such Person, or shall
be merged with or into such Person or any Restricted Subsidiary of such Person,
or (2) the acquisition by such Person or any Restricted Subsidiary of such
Person of the assets of any third Person (other than a Restricted Subsidiary of
such Person) which constitute all or substantially all of the assets of such
third Person or comprises any division or line of business of such third Person
or any other properties or assets of such third Person other than in the
ordinary course of business.
"ASSET SALE" means (i) the sale, lease, conveyance or other disposition
of any assets or rights (including, without limitation, by way of a sale and
leaseback) other than sales of inventory and leases (or subleases) of restaurant
facilities and related equipment to franchisees, in each case in the ordinary
course of business (provided that the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company and its
Subsidiaries taken as a whole will be governed by SECTIONS 4.15 and 5.01 and not
by SECTION 4.10, and (ii) the issue or sale by the Company or any of its
Subsidiaries of Equity Interests of any of the Company's Restricted Subsidiaries
other than director's qualifying shares or shares required by applicable law to
be held by a Person other than the Company or a Restricted Subsidiary, in the
case of either clause (i) or (ii), whether in a single transaction or a series
of related transactions (a) that have a fair market value in excess of $1.0
million or (b) for net proceeds in excess of $1.0 million. Notwithstanding the
foregoing, the following items shall not be deemed to be Asset Sales: (i) a
transfer, sale or other disposition of assets by the Company to a Restricted
Subsidiary or by a Restricted Subsidiary to the Company or to another Restricted
Subsidiary, (ii) an issuance, sale, transfer or other disposition of Equity
Interests by a Restricted Subsidiary to the Company or to another Restricted
Subsidiary, (iii) a Restricted Payment that is permitted by SECTION 4.07 or the
definition of Permitted Investment, (iv) any sale, lease, sublease or other
disposition of assets that are no longer used, or are damaged, worn-out or
obsolete, by the Company or any of its Restricted Subsidiaries; (v) issuance of
Equity Interests by a Restricted Subsidiary of the Company in which the
Company's percentage interest (direct and indirect) in the Equity Interests of
such Restricted Subsidiary, after giving effect to such issuance, is at least
equal to its percentage interest prior thereto; (vi) the sale or other
disposition of Cash Equivalents or Marketable Securities; (vii) the sale, lease,
sublease, license, sublicense or consignment of accounts receivable, equipment,
inventory, real property, or other assets in the ordinary course of business,
including leases or subleases with respect to facilities which are temporarily
not in use or pending their disposition; (viii) trade or exchange of assets of
equivalent fair market value; (ix) the licensing of intellectual property or
other general intangibles to third Persons on customary terms as determined by
the Board of Directors in good faith; (x) the good faith surrender or waiver of
contract rights or the settlement, release or surrender of claims of any kind;
and (xi) the sale or other disposal of property or assets pursuant to the
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exercise of any remedies pursuant to the Credit Facilities or the other security
documents relating to any Indebtedness permitted under this Indenture.
"ATTRIBUTABLE DEBT" in respect of a sale and leaseback transaction
occurring on or after the Issue Date means, at the time of determination, the
present value (discounted at the rate of interest implicit in such transaction,
determined in accordance with GAAP) of the obligation of the lessee for net
rental payments during the remaining term of the lease included in such sale and
leaseback transaction (including any period for which such lease has been
extended or may, at the option of the lessor, be extended).
"AVERAGE MARKET PRICE" means, with respect to any Marketable
Securities as of any relevant date of determination the average of the Closing
Price per share or other unit of such Marketable Securities for the period of
five full Trading Days ending on and including the third full Trading Day prior
to such relevant date of determination (appropriately adjusted to reflect the
effect of any stock splits, reverse splits, stock dividends and any other
similar events affecting such security).
"BANK PRODUCT" means any financial accommodation extended to Parent or
its Subsidiaries by a bank product provider (other than pursuant to the
Revolver) including: (a) credit cards, (b) credit card processing services, (c)
debit cards, (d) purchase cards, (e) cash management or related services
(including the Automated Clearing House processing of electronic fund transfers
through the direct Federal Reserve Fedline system) provided by a Bank Product
Provider for the account of Parent or any of its Subsidiaries, (f) cash
management, including controlled disbursement, accounts or services, or (g)
transactions under hedge agreements.
"BANK PRODUCT OBLIGATIONS" means (a) all obligations, liabilities,
reimbursement obligations, fees, or expenses owing by Parent or any of its
Subsidiaries to any Bank Product Provider pursuant to or evidenced by a bank
product agreement and irrespective of whether for the payment of money, whether
direct or indirect, absolute or contingent, due or to become due, existing on
the Issue Date or arising thereafter, and (b) all amounts that Parent or any of
its Subsidiaries are obligated to reimburse to the agent or any lender under the
Revolver as a result of such agent or such lender purchasing participations
from, or executing guarantees or indemnities or reimbursement obligations to, a
Bank Product Provider with respect to the Bank Products provided by such Bank
Product Provider to Parent or any of its Subsidiaries.
"BANK PRODUCT PROVIDER" has the meaning set forth in the Intercreditor
Agreement.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"BOARD OF DIRECTORS" means (i) with respect to a corporation, the
board of directors of the corporation or any committee thereof duly authorized
to act on behalf of such board, (ii) with respect to a partnership, the Board of
Directors of the general partner of the partnership, (iii) with respect to a
limited liability company, the managing member or members or any controlling
committee or board of directors of the sole member or of the managing member
thereof and (iv) with respect to any other person, the board or committee of
such Person serving a similar function.
"BUSINESS DAY" means each day which is not a Legal Holiday.
"CAPITAL EXPENDITURES" means for any period expenditures (including
Capital Lease Obligations other than contracts for expenditures under or with
respect to operating leases that are accounted for as Capital Lease Obligations
in accordance with GAAP and in which the Company has no ownership interest and
excluding expenditures made with the proceeds of casualty insurance or
reinvestment of
3
proceeds of asset dispositions as expressly permitted under SECTION 4.10) in
respect of the purchase or other acquisition of fixed or capital assets that
have a useful life of more than one year and that are required to be capitalized
in conformity with GAAP.
"CAPITAL INTERESTS" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and (iv) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person (other than earn-outs or similar consideration
payable in connection with an acquisition).
"CAPITAL LEASE OBLIGATION" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"CASH EQUIVALENTS" means:
(i) United States dollars;
(ii) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or
instrumentality thereof (provided that the full faith and credit of
the United States is pledged in support thereof) having maturities of
not more than 90 days from the date of acquisition;
(iii) certificates of deposit and eurodollar time deposits
with maturities of six months or less from the date of acquisition,
bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case with any lender party to the
Revolver or with any commercial bank organized under the laws of the
United States of America or any state thereof or the District of
Columbia or any foreign country recognized by the United States of
America having capital and surplus, at the time of acquisition
thereof, in excess of $750 million (or foreign currency equivalent
thereof) and having one of the two highest ratings obtainable from
either Standard & Poor's Rating Services, Inc. or Xxxxx'x Investor
Service, Inc.;
(iv) securities issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition thereof, having
one of the two highest ratings obtainable from either Standard &
Poor's Rating Services, Inc. or Xxxxx'x Investor Service, Inc.;
(v) investments by Restricted Subsidiaries in local
currencies in instruments issued by or with entities in jurisdictions
outside of the United States having correlative attributes to the
foregoing; and
(vi) money market funds, excluding those of Xxxxxx Brothers
Holdings Inc. and Xxxxxxx Xxxxx & Co., Inc., at least 95% of the
assets of which constitute Cash Equivalents of the kinds described in
clauses (i) through (v) of this definition.
4
"CHANGE OF CONTROL" means the occurrence of any of the following:
(i) any sale, lease, exchange or other transfer (other than
a Lien permitted by this Indenture or by way of consolidation or
merger), in one transaction or a series of related transactions) of
all or substantially all of the assets of the Company and its
Subsidiaries, taken as a whole, 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) other than in all
such cases to one or more Permitted Holders;
(ii) the approval by the holders of Capital Interests 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);
(iii) any Person or Group (other than the Permitted Holders
and any entity formed and controlled by the Permitted Holders for the
purpose of owning Capital Interests of Parent) shall become the owner,
directly or indirectly, beneficially or of record, of shares
representing more that 50% of the aggregate ordinary voting power
represented by the issued and outstanding Capital Interests of Parent
or the Company; or
(iv) the replacement over a two-year period of a majority of
the Board of Directors of Parent (or if Parent has been liquidated or
dissolved, the Company) who constituted the Board of Directors of
Parent or the Company, as the case may be, at the beginning of such
period, and such replacement shall not have been approved by a vote of
at least a majority of the Continuing Directors.
"CLEARSTREAM" means Clearstream Banking Societe Anonyme and any
successor thereto.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLATERAL" shall mean collateral as such term is defined in the
Security Agreement, all property mortgaged under the Mortgages and any other
property, whether now owned or hereafter acquired, upon which a Lien securing
the Obligations is granted or purported to be granted under any Collateral
Agreement; PROVIDED, HOWEVER, that "Collateral" shall not include any Excluded
Assets.
"COLLATERAL AGENT" means initially The Bank of New York Mellon, in its
capacity as Collateral Agent under this Indenture and the Collateral Agreements,
together with its successors in such capacity.
"COLLATERAL AGREEMENTS" means, collectively, the Intercreditor
Agreement, the Security Agreement, the Trademark Security Agreement, each
Mortgage and each other instrument creating Liens in favor of the Collateral
Agent as required in this Indenture, in each case, as the same may be in force
from time to time.
"COMPANY ORDER" means a written request or order signed on behalf of
the Company by an Officer of the Company, who shall be the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company, and delivered to the Trustee.
"CONSOLIDATED CASH FLOW" means, with respect to any Person, for any
period, the sum (without duplication) of:
(i) Consolidated Net Income; and
5
(ii) to the extent Consolidated Net Income has been reduced
thereby:
(a) all income taxes of such Person and its
Restricted Subsidiaries paid or accrued in accordance with
GAAP for such period;
(b) Consolidated Interest Expense;
(c) Consolidated Non-Cash Charges;
(d) the GAAP rental expense associated with
operating leases less the actual cash rental expense
associated with such operating leases; and
(e) solely for purposes of calculating the Fixed
Charge Coverage Ratio and Excess Cash Flow, any management
fee accrued but unpaid in such period pursuant to the terms
of the Management Agreement as in effect on the Issue Date
and as described in the Offering Circular,
all as determined on a consolidated basis for such Person and its Restricted
Subsidiaries in accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any Person for
any period, the sum of, without duplication, the aggregate interest expense of
such Person and its Restricted Subsidiaries for such period, whether paid or
accrued and whether or not capitalized (including, without limitation,
amortization of original issue discount, non-cash interest payments, the
interest component of any deferred payment obligations, the interest component
of all payments associated with Capital Lease Obligations (paid, accrued and/or
scheduled) to be paid or accrued, imputed interest with respect to Attributable
Debt, commissions, discounts and other fees and charges incurred in respect of
letter of credit or bankers' acceptance financings, and net payments (if any)
pursuant to Hedging Obligations (including fees and premiums)), to the extent
that any such expense was deducted in computing such Consolidated Net Income on
a consolidated basis for such Person and its Restricted Subsidiaries and
determined in accordance with GAAP.
"CONSOLIDATED LEVERAGE RATIO" means, as of any date of determination,
the ratio of Total Indebtedness outstanding on such date to the Consolidated
Cash Flow of the Company during the four fiscal quarters (the "Four Quarter
Period") ending prior to the date of the transaction giving rise to the need to
calculate such ratio for which internal financial statements are available (the
"Transaction Date"). In addition to and without limitation of the foregoing, for
purposes of this definition, Total Indebtedness and Consolidated Cash Flow 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 such
Person or any of its Restricted Subsidiaries, or the issuance or
redemption of any preferred stock by such Person or any of its
Restricted Subsidiaries (in each case, and the application of the
proceeds thereof) giving rise to the need to make such calculation and
any incurrence or repayment of other Indebtedness (or the issuance or
redemption or other repayment of any other preferred stock) by such
Person or any of its Restricted Subsidiaries (in each case, 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
6
(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 such
Person or one of its 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 Debt and
also including any Consolidated Cash Flow 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 other disposition or Asset Acquisition (including the
incurrence, assumption or liability for any such Indebtedness)
occurred on the first day of the Four Quarter Period.
"CONSOLIDATED NET INCOME" means, with respect to any Person, for any
period, the aggregate net income (or loss) of such Person and its Restricted
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP, provided that there shall be excluded therefrom (without
duplication):
(1) gains or losses from Asset Sales (without regard to the
$1.0 million limitation set forth in the definition thereof) or other
dispositions, abandonments or reserves relating thereto or the
extinguishment of any Indebtedness, together with any related
provision for taxes on such gains or losses;
(2) extraordinary gains and extraordinary losses together
with any related provision for taxes on such extraordinary gains or
extraordinary losses;
(3) the net income or loss of any Person acquired prior to
the date it becomes a Restricted Subsidiary of the referent Person or
is merged or consolidated with the referent Person or any Restricted
Subsidiary of the referent Person;
(4) solely for purpose of calculating Consolidated Net
Income to determine the amount of Restricted Payments permitted under
SECTION 4.07(A)(3)(A), the net income (but not loss) of any Subsidiary
of the Company (excluding in the case of the Company or any of its
Restricted Subsidiaries, any Restricted Subsidiary that is a
Guarantor) to the extent that the declaration of dividends or similar
distributions by that Subsidiary of that income is restricted by a
contract, operation of law or otherwise;
(5) all gains realized on or because of the purchase or
other acquisition by the Company or any of its Restricted Subsidiaries
of any securities of such Person or any of its Restricted
Subsidiaries;
(6) any goodwill impairment charges or other non-cash long
term asset impairment charge;
(7) the net income of any Person, other than a Restricted
Subsidiary of the referent Person, except to the extent of cash
dividends or distributions paid to the referent Person or to a
Restricted Subsidiary of the referent Person by such Person;
(8) any restoration to income of any contingency reserve,
except to the extent that provision for such reserve was made out of
Consolidated Net Income accrued at any time following the Issue Date;
7
(9) income or loss attributable to discontinued operations
(including, without limitation, operations disposed or during such
period whether or not such operations were classified as
discontinued);
(10) in the case of a successor to the referent Person by
consolidation or merger or as a transferee of the referent Person's
assets, any earnings of the successor corporation prior to such
consolidation, merger or transfer of assets; and
(11) any non-cash expenses or charges resulting from the
grant of stock, stock options or other equity-based awards.
"CONSOLIDATED NON-CASH CHARGES" means, with respect to any Person and
its Restricted Subsidiaries, for any period, depreciation, amortization
(including amortization of goodwill and other intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior period) and
other non-cash expenses (excluding any such non-cash expense to the extent that
it represents an accrual of or reserve for cash expenses in any future period or
amortization of a prepaid cash expense that was paid in a prior period) of any
Person and its Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash expenses were deducted in
computing such Consolidated Net Income, minus non-cash items increasing such
Consolidated Net Income for such period (other than accruals of revenue in the
ordinary course of business and reversals in such period of an accrual of, or
reserve for, a cash charge in another period) on a consolidated basis for such
Person and its Restricted Subsidiaries and determined in accordance with GAAP.
"CONTINUING DIRECTORS" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the Issue Date, (ii) was nominated for election or elected
to such Board of Directors with the approval of a majority of the Continuing
Directors who were members of such Board of Directors at the time of such
nomination or election, or (iii) was nominated for election to such Board of
Directors by a Permitted Holder.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" means the principal office of
the Trustee at which at any time its corporate trust business shall be
administered, which office at the date hereof is located at 000 Xxxxxxx Xxxxxx,
Xxxxx 8 West, New York, New York 10286, Attention: Corporate Trust
Administration, or such other address as the Trustee may designate from time to
time by notice to the Holders and the Company, or the principal corporate trust
office of any successor Trustee (or such other address as such successor Trustee
may designate from time to time by written notice to the Holders and the
Company).
"CREDIT FACILITIES" means one or more debt facilities (including,
without limitation, the Revolver) or commercial paper facilities or indentures
with banks or other lenders or a trustee providing for revolving credit loans,
term loans, receivables financing (including through the sale of receivables to
such lenders or to special purpose entities formed to borrow from such lenders
against such receivables), issuance of notes or letters of credit, in each case,
as amended, restated, modified, substituted, renewed, refunded, replaced or
refinanced in whole or in part from time to time.
"CUSTODIAN" means the Trustee, as custodian with respect to the Notes
issuable or issued in whole or in part in global form, or any successor entity
thereto appointed as a custodian hereunder and having become such pursuant to
the applicable provisions of this Indenture.
"DEFAULT" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
8
"DEFINITIVE NOTE" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with SECTION 2.06(C) hereof,
substantially in the form of Exhibit A hereto, as the case may be, except that
such Note shall not bear the Global Note Legend and shall not have the "Schedule
of Exchanges of Interests in the Global Note" attached thereto.
"DEPOSITARY" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in SECTION 2.03 hereof as
the Depositary with respect to the Notes, and any and all successors thereto
appointed as Depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"DISQUALIFIED INTERESTS" means any Capital Interests that, by its terms
(or by the terms of any security into which it is convertible, or for which it
is exchangeable, at the option of the holder thereof), or upon the happening of
any event (other than an event that would constitute a Change of Control),
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the sole option of the holder thereof (except in
each case, upon the occurrence of a Change of Control or to the extent such
Capital Interest is only redeemable or exchangeable into Qualified Capital
Interests), in whole or in part, on or prior to the date on which the Notes
mature for cash or is convertible into or exchangeable for debt securities of
the Company or its Subsidiaries at any time prior to such date; PROVIDED,
HOWEVER, that any Capital Interests that would constitute Disqualified Interests
solely because the Holders thereof have the right to require the Company to
repurchase or redeem such Capital Interests upon the occurrence of a Change of
Control or an Asset Sale shall not constitute Disqualified Interests if the
terms of such Capital Interests provide that the Company may not repurchase or
redeem any such Capital Interests pursuant to such provisions unless such
repurchase or redemption complies with SECTION 4.07.
"DOMESTIC RESTRICTED SUBSIDIARY" means any Restricted Subsidiary of the
Company that was formed under the laws of the United States or any state of the
United States or the District of Columbia or that guarantees or otherwise
provides direct credit support for any Indebtedness of the Company.
"EXCESS CASH FLOW" means, for any period, Consolidated Cash Flow for
such period, adjusted as follows:
(1) minus the cash portion of Fixed Charges (net of interest
income) and the cash portion of any related financing fees with
respect to such period;
(2) minus Permitted Payments to Parent made or to be made or
the cash portion of all federal, state, local and foreign income taxes
and franchise or margin taxes paid or payable (without duplication) by
the Company and its Subsidiaries during such period;
(3) minus Capital Expenditures for such period; and
(4) minus or plus any net increase or decrease,
respectively, in Working Capital from the beginning to the end of such
period.
"EQUITY INTERESTS" means Capital Interests and all warrants, options or
other rights to acquire Capital Interests (but excluding any debt security that
is convertible into, or exchangeable for, Capital Interests).
"EQUITY OFFERING" means any public or private sale of Qualified Capital
Interests of the Company or any direct or indirect parent entity of the Company,
provided that, in the event of an Equity Offering by any direct or indirect
parent entity of the Company, such parent entity contributes to the capital of
the
9
Company the portion of the net cash proceeds of such Equity Offering necessary
to pay the aggregate redemption price (plus accrued interest to the redemption
date) of the Notes to be redeemed pursuant to SECTION 3.07(B).
"EUROCLEAR" means Euroclear S.A./N.V., as operator of the Euroclear
system and any successor thereto.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
or any successor statute or statutes thereto, and the rules and regulations of
the SEC promulgated thereunder.
"EXCLUDED ASSETS" means:
(i) the Voting Stock of any Foreign Subsidiary in excess of 65% of the
outstanding Voting Stock of such Foreign Subsidiary;
(ii) motor vehicles;
(iii) rights under any contracts, leases or other instruments that
contain a valid and enforceable prohibition on the grant of a security interests
or assignment of such rights (other than to the extent that any such prohibition
would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409
of the Uniform Commercial Code of any relevant jurisdiction or any other
applicable law or principles of equity), but only for so long as such
prohibition exists and is effective and valid;
(iv) fixtures located on premises leased by the Company or any
Guarantor to the extent the pledge thereof or grant of a security interest
therein is (a) validly prohibited by the lease governing such premises and (b)
would result in the forfeiture of the Company's or any Guarantor's right, title
or interest thereunder under applicable law; PROVIDED, HOWEVER, that at such
time as any such grant of a security interest in any fixture shall not result in
a forfeiture thereunder under applicable law, such fixture shall (without any
further act or delivery by any Person) constitute Collateral hereunder;
PROVIDED, FURTHER, that this clause shall have no application to any real
property owned by the Company, any Guarantor or any Affiliate of the Company;
(v) property and assets owned by the Company or any Guarantor that are
the subject of Permitted Liens described in clause (iii) of the definition
thereof for so long as such Permitted Liens are in effect and the Indebtedness
secured thereby is permitted to be incurred under Section 4.09(c)(iv) (including
the dollar amount set forth therein) and otherwise prohibits any other Liens
thereon;
(vi) property and assets owned by the Company or any Guarantor (which
may include liquor licenses) in which a Lien may not be granted without
governmental approval or consent or in which the granting of a Lien is
prohibited by applicable law (but only for so long as the Company or the
applicable Guarantor has not obtained such approval or consents); and
(vii) any partnership interests in any Restaurant Partnership (a) not
held by the Company or its Restricted Subsidiaries or (b) the pledge of which is
prohibited by, or requires the consent of any other Person under, the applicable
partnership agreement.
"EXISTING NOTES" means the Company's 10% Senior Notes due 2013.
"FIRST PRIORITY AGENT" means the Administrative Agent and any successor
designated as such by the holders of First Priority Claims.
10
"FIRST PRIORITY CLAIMS" means (a) Indebtedness under the Revolver
permitted pursuant to clause (i) of the definition of the term "Permitted Debt"
and all other Obligations under the documents relating to the Indebtedness
incurred thereunder and (b) Bank Product Obligations.
"FIXED CHARGE COVERAGE RATIO" means, with respect to any Person, the
ratio of total Consolidated Cash Flow of such Person and its Restricted
Subsidiaries during the four full fiscal quarters (the "Four Quarter Period")
ending prior to the date of the transaction giving rise to the need to calculate
such ratio for which internal financial statements are available (the "FCCR
Transaction Date") to Fixed Charges of such Person for the Four Quarter Period.
In addition to and without limitation of the foregoing, for purposes of this
definition, "Consolidated Cash Flow" and "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 such
Person or any of its Restricted Subsidiaries, or the issuance or
redemption of preferred stock by such Person or any of its Restricted
Subsidiaries (in each case, and the application of the proceeds
thereof) giving rise to the need to make such calculation and any
incurrence or repayment of other Indebtedness (or the issuance or
redemption or other repayment of any other preferred stock by such
Person or any of its Restricted Subsidiaries (in each case, 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 FCCR
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 such
Person or one of its 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 Debt and
also including any Consolidated Cash Flow (including any Pro Forma
Cost Savings) 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 FCCR Transaction Date, as if such asset sale or other
disposition or Asset Acquisition (including the incurrence, assumption
or liability for any such Indebtedness) occurred on the first day of
the Four Quarter Period.
In calculating Fixed Charges attributable to interest on any Indebtedness
computed on a PRO FORMA basis, (a) interest on outstanding Indebtedness
determined on a fluctuating basis as of the FCCR 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 FCCR Transaction Date; (b) if interest on any Indebtedness
actually incurred on the FCCR 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
FCCR Transaction Date will be deemed to have been in effect during the Four
Quarter Period; and (c) notwithstanding clause (a) above, interest on
Indebtedness determined on a fluctuating basis, to the extent such interest is
covered by agreements relating to interest rate swaps, caps or collars, shall be
deemed to accrue at the rate per annum resulting after giving effect to the
operation of such agreement.
11
"FIXED CHARGES" means, with respect to any Person for any period, the
sum, without duplication, of
(i) the Consolidated Interest Expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued, but
excluding amortization of debt issuance costs and write-off of
deferred financing costs of such Person and its Restricted
Subsidiaries during such period and any premium or penalty paid in
connection with redeeming or retiring Indebtedness of such Person and
its Restricted Subsidiaries prior to Stated Maturity thereof; and
(ii) the product of (a) all cash dividend payments, on any
series of preferred equity of such Person or any of its Restricted
Subsidiaries paid during such period to any Person other than such
Person or any of its Restricted Subsidiaries times (b) a fraction, the
numerator of which is one and the denominator of which is one minus
the then current combined federal, state and local statutory tax rate
of such Person, expressed as a decimal, in each case, on a
consolidated basis and in accordance with GAAP.
"FOREIGN SUBSIDIARY" means any Restricted Subsidiary of the Company
that is not a Domestic Restricted Subsidiary.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession of the United States of America, as in effect from time to time.
"GENERATOR SALE" means the sale, transfer or other disposition of the
Foxtail Manufacturing generator located in Cincinnati, Ohio, together with the
receipt by the Company or its Restricted Subsidiaries of any insurance proceeds
related thereto.
"GLOBAL NOTE LEGEND" means the legend set forth in SECTION 2.06(F)(II)
hereof, which is required to be placed on all Global Notes issued under this
Indenture.
"GLOBAL NOTES" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, substantially in the
form of Exhibit A hereto issued in accordance with SECTION 2.01, 2.06(B)(I),
2.06(D) or 2.06(F) hereof.
"GOVERNMENT SECURITIES" means securities that are:
(1) direct obligations (or certificates representing an
ownership interest in such obligations) of, or obligations guaranteed
by, the United States of America for the timely payment of which its
full faith and credit is pledged; or
(2) obligations (or certificates representing an ownership
interest in such obligations) of, or obligations guaranteed by, Person
controlled or supervised by and acting as an agency or instrumentality
of the United States of America the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by
the United States of America, which, in either case, are not callable
or redeemable at the option of the issuers thereof.
"GUARANTEE" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without
12
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.
"GUARANTORS" means Parent and the Subsidiary Guarantors.
"HEDGING OBLIGATIONS" means, with respect to any specified Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements, interest rate collar agreements and other agreements or
arrangements designed for the purpose of fixing, hedging or swapping interest
rate risk; (ii) commodity swap agreements, commodity option agreements, forward
contracts and other agreements or arrangements designed for the purpose of
fixing, hedging or swapping commodity price risk; and (iii) foreign exchange
contracts, currency swap agreements and other agreements or arrangements
designed for the purpose of fixing, hedging or swapping foreign currency
exchange rate risk.
"HEIRS" of any individual mean such individual's estate, spouse, lineal
relatives (including adoptive descendants), administrator, committee or other
personal representative or other estate planning vehicle and any custodian or
trustee for the benefit of any spouse or lineal relatives (including adoptive
descendants) of such individual.
"HOLDERS" means a Person in whose name a Note is registered.
"IAI GLOBAL NOTE" means the Global Note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of and registered in the name of the Depositary
or its nominee that will be issued in a denomination equal to the outstanding
principal amount of the Notes sold to Institutional Accredited Investors in the
United States of America.
"INDEBTEDNESS" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof but excluding Obligations
with respect to letters of credit (including trade letters of credit) to the
extent such Obligations are cash collateralized or such letters of credit secure
Obligations (other than Obligations described above and Obligations in
connection with Capitalized Lease Obligations) entered into in the ordinary
course of business of such Person and such letters of credit are not drawn upon
or, if drawn upon, to the extent any such drawing is reimbursed no later than
three Business Days following receipt by such Person of a demand for
reimbursement) or banker's acceptances or representing Capital Lease Obligations
or the balance deferred and unpaid of the purchase price of any property or
representing any Hedging Obligations, except any such balance that constitutes
an accrued expense or trade payable, if and to the extent any of the foregoing
(other than letters of credit and Hedging Obligations) would appear as a
liability upon a balance sheet of such Person prepared in accordance with GAAP,
as well as all Indebtedness of others secured by a Lien on any asset of such
Person (whether or not such Indebtedness is assumed by such Person),
Attributable Debt and, to the extent not otherwise included, the Guarantee by
such Person of any Indebtedness of any other Person. The amount of any
Indebtedness outstanding as of any date shall be (i) the accreted value thereof,
in the case of any Indebtedness issued with original issue discount, and (ii)
the principal amount thereof, together with any interest thereon that is more
than 30 days past due, in the case of any other Indebtedness. Indebtedness also
includes all Disqualified Interests issued by such Person with the amount of
Indebtedness represented by such Disqualified Interests being equal to its
maximum fixed repurchase price, but excluding accrued dividends, if any. For
purposes hereof, the "maximum fixed repurchase price" of any Disqualified
Interests which does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Disqualified Interests as if such Disqualified
Interests were purchased on any date on which Indebtedness shall be required to
be
13
determined pursuant to this Indenture, and if such price is based upon, or
measured by, the fair market value of such Disqualified Interests, such fair
market value shall be determined reasonably and in good faith by the Board of
Directors of the issuer of such Disqualified Interests. Notwithstanding the
foregoing, in connection with the Asset Acquisition or other purchase by the
Company or any Restricted Subsidiary of any business or assets not in the
ordinary course of business, the term "Indebtedness" will exclude post closing
payment adjustments to which the seller may become entitled to the extent such
payment is determined by a final closing balance sheet or such payment depends
on the performance of such business after the closing; PROVIDED, HOWEVER, that
at the time of closing, the amount of any such payment is not determinable and,
to the extent such payment thereafter becomes fixed and determined, the amount
is paid within 30 days thereafter.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time.
"INDENTURE DOCUMENTS" means, collectively, this Indenture, the Notes,
the Guarantees, the Collateral Agreements, the Intercompany Subordination
Agreement, the Management Fee Subordination Agreement and each other agreement,
document or instrument to which the Trustee is or may become a party in its
capacity as Trustee, Paying Agent, Collateral Agent or Registrar.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"INITIAL PURCHASER" means Xxxxxxxxx & Company, Inc.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"INTERCOMPANY SUBORDINATION AGREEMENT" means the Intercompany
Subordination Agreement among Parent, the Company and the Subsidiary Guarantors,
in favor of the Trustee, as the same may be modified, superseded, succeeded or
replaced from time to time in accordance with its terms and the terms of this
Indenture.
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement between the
First Priority Agent and the Second Priority Agent (as defined therein), as the
same may be amended, modified, superseded, reinstated, succeeded or replaced
from time to time in accordance with its terms and the terms of this Indenture.
"INTEREST PAYMENT DATE" means May 31 and November 30 of each year to
stated maturity, commencing May 31, 2009.
"INVESTMENTS" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the form of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding extensions of credit to customers
or advances, deposits or payments to or with suppliers, lessors or utilities or
for worker's compensation, in each case, in the ordinary course of business that
are required to be recorded in accordance with GAAP as accounts receivable,
prepaid expenses or deposits on the balance sheet of such Person and excluding
commissions, travel and similar advances to officers and employees made
consistent with past practices) and purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities. If the
Company or any Restricted Subsidiary of the Company sells or otherwise disposes
of any Equity Interests of any Restricted Subsidiary of the Company such that,
after giving effect to any such sale or disposition, such Person is no longer a
Restricted Subsidiary of the Company, 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 Equity
14
Interests of such Restricted Subsidiary not sold or
disposed of in an amount determined as provided in SECTION 4.07(A)(3)(C). Except
as otherwise provided for herein, the amount of an Investment shall be its fair
market value at the time the Investment is made and without giving effect to
subsequent changes in value.
"ISSUE DATE" means September 24, 2008.
"ISSUE DATE REAL PROPERTY" means the real property of the Company and
its Restricted Subsidiaries located at the following locations: 0000 X. Xxxxxxxx
Xxxx., Xxxxxx, Xxxxxxx; 000 Xxxxx Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxx; 000 X.
Xxxxx Xxxxxxx, Xxxxx Xxxx, Xxxxxxx; and 0000 Xxxxxxxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxx.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions are not required to be open in the State of New York.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"MANAGEMENT AGREEMENT" means the management agreement among the
Company, Parent, P&MC'S Holding Corp., P&MC'S Holding LLC and Xxxxxx Xxxxxx,
Inc., as in effect on the Issue Date.
"MANAGEMENT FEE SUBORDINATION AGREEMENT" means the Management Fee
Subordination Agreement among Parent, the Company and the Subsidiary Guarantors,
in favor of the First Priority Lender and the Trustee, as the same may be
modified, superseded, succeeded or replaced from time to time in accordance with
its terms and the terms of this Indenture.
"MARKETABLE SECURITIES" means any securities listed or quoted on any
national securities exchange that has registered with the SEC pursuant to
Section 6(a) of the Exchange Act, the Nasdaq National Market or any designated
offshore securities market as defined in Regulation S under the Securities Act.
"MORTGAGES" means the mortgages, deeds of trust, deeds to secure debt
or assignments of the foregoing or other similar documents delivered by the
Company or any Guarantor pursuant to the terms of the Indenture which create, in
favor of the Collateral Agent, Liens on any fee interest in real property owned
by the Company or any Guarantor, as the case may be.
"NET PROCEEDS" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
the direct costs relating to such Asset Sale or disposition of such non-cash
consideration, including, without limitation, (i) actual, reasonable and
necessary legal, accounting and investment banking fees, sales commissions, and
any severance and relocation expenses incurred as a result thereof, (ii) all
taxes paid or payable as a result thereof, in each case, after taking into
account any available tax credits or deductions and any tax sharing
arrangements, (iii) amounts required to be applied to the repayment of
Indebtedness (other than revolving credit Indebtedness, unless there is a
required reduction in commitments) secured by a Lien on the asset or assets that
were the subject of such Asset Sale, (iv) appropriate amounts to be provided by
the Company or any Restricted Subsidiary, as the case may be, as a reserve, (1)
against any
15
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, or (2) for
adjustment in respect of the sale price of the property or assets that are the
subject of such Asset Sale; and (v) amounts required to be paid to any Person
(other than the Company or any of its Restricted Subsidiaries) owning a
beneficial interest in the assets that are the subject of the Asset Sale
(including, without limitation, the Restaurant Partnerships).
"NON-RECOURSE DEBT" means Indebtedness (i) as to which neither the
Company nor any of its Restricted Subsidiaries (a) provides credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable (as a guarantor
or otherwise), or (c) constitutes the lender; and (ii) as to which (a) the
explicit terms provide that there is no recourse against any assets of the
Company or any of its Restricted Subsidiaries or (b) the lenders have been
notified in writing that they will not have any recourse to the stock or assets
of the Company or any of its Restricted Subsidiaries.
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
"NOTES" has the meaning set forth in the recitals hereto.
"OBLIGATIONS" means all loans, advances, debts, principal, interest
(including any interest that accrues after the commencement of a bankruptcy,
insolvency, receivership or other similar proceeding (an "Insolvency
Proceeding"), regardless of whether allowed or allowable in whole or in part as
a claim in any such Insolvency Proceeding), premiums, liabilities, obligations
(including indemnification obligations), fees, Trustee fees, expenses and
indemnities provided for in the Indenture (including any fees, expenses or
indemnities that accrue after the commencement of an Insolvency Proceeding,
regardless of whether allowed or allowable in whole or in part as a claim in any
such Insolvency Proceeding), guaranties, covenants, and duties of any kind and
description owing by the Company to the Holders pursuant to or evidenced by the
Indenture Documents and irrespective of whether for the payment of money,
whether direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising, and including all interest not paid when due and
all other expenses or other amounts that the Company is required to pay or
reimburse by the Indenture Documents or by law or otherwise in connection with
this Indenture Documents. Any reference in this Indenture or in the Indenture
Documents to the Obligations shall include all or any portion thereof and any
extensions, modifications, renewals, or alterations thereof, both prior and
subsequent to any Insolvency Proceeding.
"OFFERING CIRCULAR" means the offering circular, dated September 24,
2008, relating to the sale of the Notes.
"OFFICER" means the Chairman of the Board, the Chief Executive Officer,
the Chief Financial Officer, the President, any Executive Vice President, Senior
Vice President or Vice President, the Treasurer or the Secretary of the Company.
"OFFICER'S CERTIFICATE" means a certificate signed on behalf of the
Company by an Officer of the Company, who shall be the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company, that meets the requirements set forth in this
Indenture.
"OPINION OF COUNSEL" means a written opinion from legal counsel that
meets the requirements of SECTION 12.05 hereof. The counsel may be an employee
of or counsel to the Company or any Subsidiary of the Company.
16
"PARENT" means Xxxxxxx & Xxxxx Xxxxxxxxx'x Holding Inc., a Delaware
corporation.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"PERMITTED BUSINESS" means the business of the Company and its
Restricted Subsidiaries, as presently conducted by the Company and its
Restricted Subsidiaries and other businesses that are ancillary or related
thereto.
"PERMITTED HOLDERS" means (1) Xxxxxx Xxxxxx Partners III, L.P. and
Xxxxxx Xxxxxx Partners IV, L.P. and any Person controlling, controlled by, or
under common control with, and any account controlled or managed by or under
common control or management with Xxxxxx Xxxxxx Partners III, L.P. and Xxxxxx
Xxxxxx Partners IV, L.P. or (2) Xxxxxx Xxxxxx, Inc. and employees, management
and directors of (including any of their Heirs), and Persons owning accounts
managed or advised by or controlled by, any of the foregoing and their
respective Affiliates.
"PERMITTED INVESTMENTS" means:
(a) any Investment in the Company or in a Restricted
Subsidiary of the Company;
(b) any Investment in Cash Equivalents or Marketable
Securities;
(c) any Investment by the Company or any Restricted
Subsidiary of the Company in a Person, if as a result of such
Investment (i) such Person becomes a Restricted Subsidiary of the
Company or (ii) such Person is merged, consolidated or amalgamated
with or into, or transfers or conveys substantially all of its assets
to, or is liquidated into, the Company or a Restricted Subsidiary of
the Company and that is engaged in a Permitted Business;
(d) any Investment made as a result of the receipt of
non-cash consideration from an Asset Sale that was made pursuant to
and in compliance with SECTION 4.10;
(e) any acquisition of assets solely in exchange for the
issuance of Equity Interests (other than Disqualified Interests) of
the Company or any parent of the Company;
(f) Investments represented by guarantees that are otherwise
permitted under this Indenture;
(g) Investments existing on the Issue Date;
(h) Investments in the Notes or the Existing Notes;
(i) Investments in securities of trade creditors or
customers received pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of such trade creditors
or customers in exchange for claims against such trade creditors or
customers or in good faith settlement of delinquent obligations of
such trade creditors and customers;
(j) advances to suppliers and customers in the ordinary
course of business;
17
(k) loans and advances, solely in respect of relocation
expenses, to employees that are not directors of the Company and its
Restricted Subsidiaries in the ordinary course of business, not in
excess of $750,000 at any one time outstanding; and
(l) other Investments in any Person having an aggregate fair
market value (measured on the date each such Investment was made and
without giving effect to subsequent changes in value), when taken
together with all other Investments at any one time outstanding made
pursuant to this clause (l) since the Issue Date and all Restricted
Payments made pursuant to SECTION 4.07(B)(IX) of this Indenture not to
exceed $3.0 million.
"PERMITTED LIENS" means:
(i) Liens securing Indebtedness under Credit Facilities to
the extent such Indebtedness was permitted by the terms of this
Indenture to be incurred solely pursuant to SECTION 4.09(C)(I);
(ii) Liens in favor of the Company or its Subsidiaries;
(iii) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by SECTION 4.09(C)(IV), which Liens with
respect solely to Capital Lease Obligations and purchase money
obligations and not mortgage financings shall cover only the assets
acquired, constructed, installed, designed, or improved with the
proceeds of such Indebtedness;
(iv) 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;
(v) 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;
(vi) Liens arising by reason of any judgment, decree or
order, but 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 decree on
order shall not have been finally terminated or the period within such
proceedings may be initiated shall not have expired;
(vii) Liens securing the Notes and all other obligations
under this Indenture, the Guarantees and the Collateral Agreements;
(viii) Liens securing Permitted Refinancing Indebtedness
incurred to Refinance any Indebtedness which has been secured by a
Lien permitted under this paragraph and incurred in accordance with
SECTION 4.09; PROVIDED that such Liens: (a) taken as a whole are no
less favorable to the Holders and are not more favorable in any
material respect to the lienholders with respect to such Liens than
the Liens in respect of the Indebtedness being Refinanced; and (b) do
not extend to or cover any property or assets of the Company or any of
its Subsidiaries not securing the Indebtedness so Refinanced;
(ix) Liens existing on the Issue Date;
18
(x) the interests of lessors or lessees under operating
leases or non-exclusive licensors or licensees under license
agreements in the property subject to such lease or license or
precautionary financing statements filed with respect to other
transactions not involving the incurrence of Indebtedness;
(xi) Liens for taxes, assessments or governmental charges or
claims either (a) not delinquent or (b) contested in good faith by
appropriate proceedings and as to which the Company or its Restricted
Subsidiaries shall have set aside on its books such reserves as may be
required pursuant to GAAP;
(xii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other
Liens imposed by law or pursuant to customary reservations or
retentions of title incurred in the ordinary course of business for
sums not yet delinquent or 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;
(xiii) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of social security;
(xiv) Liens securing Bank Product Obligations;
(xv) banker's Liens, rights of setoff and similar Liens with
respect to cash and Cash Equivalents on deposit in one or more bank
accounts in the ordinary course of business incurred in connection
with the maintenance of such bank accounts;
(xvi) deposits made in the ordinary course of business to
secure appeal bonds in connection with obtaining such bonds or
liability to insurance carriers, lessors, utilities and other service
providers;
(xvii) survey exceptions, easements, rights-of-way, zoning
restrictions and other similar charges or encumbrances in respect of
real property not interfering in any material respect with the
ordinary conduct of the business of the Company or any of its
Restricted Subsidiaries; and
(xviii) Liens granted in favor of credit card processors
pursuant to credit card processing services agreements.
"PERMITTED PAYMENTS TO PARENT" means, without duplication as to
amounts:
(1) payments to Parent or any direct or indirect parent of
Parent to permit Parent or any direct or indirect parent of Parent to
pay franchise taxes, directors fees and reasonable accounting, legal
and administrative expenses of Parent when due, in an aggregate amount
not to exceed $250,000 per annum; and
(2) for so long as the Company is a member of a group filing
a consolidated or combined tax return with Parent or any direct or
indirect parent of Parent, payments to Parent or any direct or
indirect parent of Parent in respect of an allocable portion of the
tax liabilities of such group that is attributable to the Company and
its Subsidiaries ("Tax Payments"). The Tax Payments shall not exceed
the lesser of (i) the amount of the relevant tax (including any
penalties and interest) that the Company would owe if the Company were
filing a separate tax return (or a separate consolidated or combined
return with its Subsidiaries that are members of the consolidated or
combined group), taking into account any carryovers and carrybacks of
tax
19
attributes (such as net operating losses) of the Company and such
Subsidiaries from other taxable years and (ii) the net amount of the
relevant tax that Parent actually owes to the appropriate taxing
authority. Any Tax Payments received from the Company shall be paid
over to the appropriate taxing authority within 30 days of Parent's or
any direct or indirect parent of Parent's receipt of such Tax Payments
or refunded to the Company.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, redeem, replace, defease
or refund other Indebtedness of the Company or any of its Restricted
Subsidiaries (other than intercompany Indebtedness); PROVIDED that:
(i) the principal amount (or accreted value, if applicable)
of such Permitted Refinancing Indebtedness does not exceed the
principal amount of (or accreted value, if applicable), plus fees,
expenses, premiums, defeasance costs and accrued interest on, the
Indebtedness so extended, refinanced, renewed, redeemed, replaced,
defeased or refunded (plus the amount of reasonable expenses incurred
in connection therewith);
(ii) such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and has a
Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, redeemed, renewed, replaced, defeased or refunded;
(iii) if the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded is subordinated in right of
payment to the Notes or constitutes Disqualified Interests, then the
Permitted Refinancing Indebtedness shall have a final maturity date
later than the final maturity date of, and be subordinated in right of
payment to, the Notes on terms at least as favorable to the Holders of
Notes as those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, redeemed, replaced,
defeased or refunded; and
(iv) such Indebtedness is incurred either by the Company or
by the Subsidiary who is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded.
"PERSON" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in SECTION
2.06(F)(I) hereof to be placed on all Notes issued under this Indenture, except
where otherwise permitted by the provisions of this Indenture.
"PRO FORMA COST SAVINGS" means, with respect to any period, the
reduction in net costs and related adjustments that (i) were directly
attributable to an acquisition that occurred during the four full fiscal
quarters (the "FOUR QUARTER PERIOD") or after the end of the Four Quarter Period
and on or prior to the applicable calculation date and calculated in accordance
with Regulation S-X under the Securities Act as in effect and applied as of the
Issue Date, (ii) were actually implemented by the business that was the subject
of any such acquisition within six
20
months after the date of the acquisition and prior to the calculation date that
are supportable and quantifiable by the underlying accounting records of such
business or (iii) relate to the business that is the subject of any such
acquisition and that the Company reasonably determines are probable based upon
specifically identifiable actions to be taken within six months of the date of
the acquisition and, in the case of each of (i), (ii) and (iii), are described,
as provided below, in an Officer's Certificate, as if all such reductions in
costs had been effected as of the beginning of such period. Pro Forma Cost
Savings described above shall be accompanied by a certificate delivered to the
Trustee from the Company's chief financial officer that outlines the specific
actions taken or to be taken, the net cost savings achieved or to be achieved
from each such action and that, in the case of clause (iii) above, such savings
have been determined to be probable.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"QUALIFIED CAPITAL INTEREST" means a Capital Interest that is not a
Disqualified Interest.
"RECORD DATE" for the interest payable on any applicable Interest
Payment Date means May 15 or November 15 (whether or not a Business Day)
immediately preceding such Interest Payment Date.
"REGULATION S" means Regulation S promulgated under the Securities Act.
"REGULATION S GLOBAL NOTE" means a Regulation S Temporary Global Note
or Regulation S Permanent Global Note, as applicable.
"REGULATION S PERMANENT GLOBAL NOTE" means a permanent Global Note in
the form of Exhibit A hereto, as the case may be, bearing the Global Note Legend
and the Private Placement Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Regulation S
Temporary Global Note upon expiration of the Restricted Period.
"REGULATION S TEMPORARY GLOBAL NOTE" means a temporary Global Note in
the form of Exhibit A hereto, as the case may be, bearing the Global Note
Legend, the Private Placement Legend and the Regulation S Temporary Global Note
Legend and deposited with or on behalf of and registered in the name of the
Depositary or its nominee, issued in a denomination equal to the outstanding
principal amount of the Notes initially sold in reliance on Rule 903.
"REGULATION S TEMPORARY GLOBAL NOTE LEGEND" means the legend set forth
in SECTION 2.06(G)(III) hereof.
"RESPONSIBLE OFFICER" means, when used with respect to the Trustee, any
officer within the corporate trust department of the Trustee, including any vice
president, assistant vice president, assistant secretary, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such Person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Indenture.
"RESTAURANT PARTNERSHIPS" means the general partnerships and limited
partnerships known as Pie Shop No. 9, Xxxxx Xxxxxxxxx Pie Shop No. 48, Xxxxx
Xxxxxxxxx Pie Shop No. 50, Xxxxx Xxxxxxxxx Pie Shop No. 59, Xxxxx Xxxxxxxxx'x
#61, Xxxxx Xxxxxxxxx'x #66, Xxxxx Callenders of Simi Valley, MCTexas Limited
Partnership, Xxxxx Xxxxxxxxx'x No. 97, Xxxxx Xxxxxxxxx'x No. 71, Xxxxx
Xxxxxxxxx'x No. 73, and Xxxxx Xxxxxxxxx'x Pie Shop No. 62.
"RESTRICTED DEFINITIVE NOTE" means a Definitive Note bearing the
Private Placement Legend.
"RESTRICTED GLOBAL NOTE" means a Global Note bearing the Private
Placement Legend.
21
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
"RESTRICTED PERIOD" means the 40 day distribution compliance period as
defined in Regulation S.
"RESTRICTED SUBSIDIARY" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"REVOLVER" means the Revolving Credit Agreement as in effect on the
Closing Date among Parent, the Company, Xxxxx Fargo Foothill, LLC, as agent and
the lenders party thereto and any related notes, collateral documents, letters
of credit and guarantees, including any appendices, exhibits or schedules to any
of the foregoing (as the same may be in effect from time to time), in each case,
as such agreements may be amended, modified, renewed, refunded, replaced,
restated, substituted, refinanced, supplemented or restated from time to time
(whether with the original agents and lenders or other agents or lenders or
otherwise, and whether provided under the original credit agreement or other
credit agreements or otherwise, including any agreement extending the maturity
of, refinancing, replacing, or otherwise restructuring (including increasing the
amount of available borrowings thereunder or adding Subsidiaries of the Company
as additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders.
"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"RULE 903" means Rule 903 promulgated under the Securities Act.
"RULE 904" means Rule 904 promulgated under the Securities Act.
"SEC" means the U.S. Securities and Exchange Commission.
"SECURITY AGREEMENT" means the Security Agreement, dated as of the
Issue Date, made by the Company and the Guarantors in favor of the Collateral
Agent, as amended or supplemented from time to time in accordance with its
terms.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02(w) of Regulation
S-X, promulgated pursuant to the Act, as such Regulation is in effect on the
Issue Date.
"STATED MATURITY" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"SUBSIDIARY" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Interests entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the
22
only general partners of which are such Person or of one or more Subsidiaries of
such Person (or any combination thereof).
"SUBSIDIARY GUARANTOR" means any Domestic Restricted Subsidiary of the
Company that executes a Guarantee in accordance with the provision of this
Indenture, and its respective successors and assigns.
"TOTAL INDEBTEDNESS" means, as of any date of determination, the
aggregate principal amount of Indebtedness of the Company and its Restricted
Subsidiaries on a consolidated basis outstanding.
"TRADEMARK SECURITY AGREEMENT" means the Trademark Security Agreement,
dated as of the Issue Date, made by the Company and the Guarantors in favor of
the Collateral Agent, as amended or supplemented from time to time in accordance
with its terms.
"TRADING DAY" means, with respect to any Marketable Securities, a day
on which the principal United States or foreign securities exchange on which
such security is listed or admitted to trading, or the Nasdaq National Market if
such security is not listed or admitted to trading on any such securities
exchange, as applicable, is open for the transaction of business (unless such
trading shall have been suspended for the entire day).
"TREASURY RATE" means, as of any redemption date, the yield to maturity
as of such redemption date of United States Treasury securities with a constant
maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15 (519) that has become publicly available at least two
Business Days prior to the redemption date (or, if such Statistical Release is
no longer published, any publicly available source or similar market data)) most
nearly equal to the period from the redemption date to May 31, 2011; PROVIDED,
HOWEVER, that if the period from the redemption date to May 31, 2011 is less
than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year will be used.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as amended
(15 U.S.C.
Sections 77aaa-777bbbb), as in effect on the date on which this Indenture is
qualified under the Trust Indenture Act, except as otherwise set forth in this
Indenture.
"TRUSTEE" means The Bank of New York Mellon, as trustee, until a
successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means the successor serving hereunder.
"UNRESTRICTED DEFINITIVE NOTE" means one or more Definitive Notes that
do not bear and are not required to bear the Private Placement Legend.
"UNRESTRICTED GLOBAL NOTE" means a permanent Global Note, substantially
in the form of Exhibit A attached hereto, as the case may be, that bears the
Global Note Legend and that has the "Schedule of Exchanges of Interests in the
Global Note" attached thereto, and that is deposited with or on behalf of and
registered in the name of the Depositary, representing Notes that do not bear
the Private Placement Legend.
"UNRESTRICTED SUBSIDIARY" means each Restaurant Partnership. The Board
of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; PROVIDED that such designation shall
be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the
Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall only be permitted if (i) such Indebtedness is permitted under
SECTION 4.09, calculated on a PRO FORMA basis
23
as if such designation had occurred at the beginning of the four full fiscal
quarter period, and (ii) no Default or Event of Default would be in existence
following such designation; and PROVIDED, FURTHER, that, to the extent
applicable, the Company shall cause such Subsidiary to comply with SECTION 4.21.
"U.S. PERSON" means a U.S. person as defined in Rule 902(k) under the
Securities Act.
"VOTING STOCK" of any Person as of any date means the Capital Interests
of such Person that are at the time entitled to vote in the election of the
Board of Directors of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Interests or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person.
"WORKING CAPITAL" means, as of any date, the difference between (x)
current assets, other than cash and cash equivalents, of the Company and its
Subsidiaries for such date and (y) current liabilities of the Company and its
Subsidiaries for such date.
SECTION 1.02 OTHER DEFINITIONS.
DEFINED IN
TERM SECTION
---- -------
"Affiliate Transaction".................................... 4.12
"Alternate Offer".......................................... 4.15
"Asset Sale Offer"......................................... 4.10
"Authentication Order"..................................... 2.02
"Change of Control Offer".................................. 4.15
"Change of Control Payment"................................ 4.15
"Change of Control Payment Date"........................... 4.15
"Covenant Defeasance"...................................... 8.03
"DTC"...................................................... 2.03
"Event of Default"......................................... 6.01
"Excess Proceeds".......................................... 4.10
"Excess Cash Flow Offer"................................... 4.11
"Excess Cash Flow Offer Amount"............................ 4.11
"incur".................................................... 4.09
"Legal Defeasance"......................................... 8.02
"Measurement Date"......................................... 4.07
"Offer Amount"............................................. 3.09
"Offer Period"............................................. 3.09
"Paying Agent"............................................. 2.03
"Permitted Debt"........................................... 4.09
"Purchase Date"............................................ 3.09
"Redemption Date".......................................... 3.07
24
"Registrar"................................................ 2.03
"Repurchase Offer"......................................... 3.09
"Restricted Payments"...................................... 4.07
SECTION 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part of this
Indenture.
The following Trust Indenture Act terms used in this Indenture have the
following meanings:
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder of a Note and Guarantees;
"indenture to be qualified" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee; and
"OBLIGOR" on the Notes and the Guarantees means the Company and the
Guarantors, respectively, and any successor obligor upon the Notes and the
Guarantees, respectively.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by Trust Indenture Act reference to another statute or
defined by SEC rule under the Trust Indenture Act and not otherwise defined
herein have the meanings so assigned to them either in the Trust Indenture Act
or SEC rule.
SECTION 1.04 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the
plural include the singular;
(e) "will" shall be interpreted to express a command;
(f) provisions apply to successive events and transactions;
(g) references to Sections of, or rules under, the
Securities Act shall be deemed to include substitute, replacement or successor
Sections or rules adopted by the SEC from time to time;
(h) unless the context otherwise requires, any
reference to an "Article," "Section" or "clause" refers to an Article, Section
or clause, as the case may be, of this Indenture; and
(i) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not any
particular Article, Section, clause or other subdivision.
25
SECTION 1.05 ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Proof of execution of any such instrument or of a writing appointing
any such agent, or the holding by any Person of a Note, shall be sufficient for
any purpose of this Indenture and (subject to SECTION 7.01) conclusive in favor
of the Trustee and the Company, if made in the manner provided in this SECTION
1.05.
(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 of 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 or on behalf of any legal entity other than an individual, such
certificate or affidavit shall also constitute proof of the authority of the
Person executing the same. 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 that the Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Register
maintained by the Registrar.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Note shall bind every
future Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of any action taken, suffered or omitted by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such
Note.
(e) The Company may, in the circumstances permitted by the
Trust Indenture Act, set a record date for purposes of determining the identity
of Holders entitled to give any request, demand, authorization, direction,
notice, consent, waiver or take any other act, or to vote or consent to any
action by vote or consent authorized or permitted to be given or taken by
Holders. Unless otherwise specified, if not set by the Company prior to the
first solicitation of a Holder made by any Person in respect of any such action,
or in the case of any such vote, prior to such vote, any such record date shall
be the later of 30 days prior to the first solicitation of such consent or the
date of the most recent list of Holders furnished to the Trustee prior to such
solicitation.
(f) Without limiting the foregoing, a Holder entitled to
take any action hereunder with regard to any particular Note may do so with
regard to all or any part of the principal amount of such Note or by one or more
duly appointed agents, each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount. Any notice given or action
taken by a Holder or its agents with regard to different parts of such principal
amount pursuant to this paragraph shall have the same effect as if given or
taken by separate Holders of each such different part.
(g) Without limiting the generality of the foregoing, a
Holder, including DTC that is the Holder of a Global Note, may make, give or
take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders, and DTC that is the Holder
of a Global Note may
26
provide its proxy or proxies to the beneficial owners of interests in any such
Global Note through such depositary's standing instructions and customary
practices.
(h) The Company may fix a record date for the purpose of
determining the Persons who are beneficial owners of interests in any Global
Note held by DTC entitled under the procedures of such depositary to make, give
or take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or proxies,
and only such Persons, shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
ARTICLE 2
THE NOTES
SECTION 2.01 FORM AND DATING; TERMS.
(a) GENERAL. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The Notes
may have notations, legends or endorsements required by law, stock exchange
rules or usage. Each Note shall be dated the date of its authentication. The
Notes shall be in denominations of $1,000 and integral multiples thereof. The
amount of Notes which may be issued under this Indenture is unlimited.
(b) GLOBAL NOTES. Notes issued in global form shall be
substantially in the form of Exhibit A hereto (including the Global Note Legend
thereon and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Notes issued in definitive form shall be substantially in the form of
Exhibit A hereto (but without the Global Note Legend thereon and without the
"Schedule of Exchanges of Interests in the Global Note" attached thereto). Each
Global Note shall represent such of the outstanding Notes as shall be specified
in the "Schedule of Exchanges of Interests in the Global Note" attached thereto
and each shall provide that it shall represent up to the aggregate principal
amount of Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Notes represented thereby may from time to time
be reduced or increased, as applicable, to reflect exchanges and redemptions.
Any endorsement of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Notes represented
thereby shall be made by the Trustee or the Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as required
by SECTION 2.06 hereof.
(c) TEMPORARY GLOBAL NOTES. Notes offered and sold in
reliance on Regulation S shall be issued initially in the form of the Regulation
S Temporary Global Note, which shall be deposited on behalf of the purchasers of
the Notes represented thereby with the Trustee, as custodian for the Depositary,
and registered in the name of the Depositary or the nominee of the Depositary
for the accounts of designated agents holding on behalf of Euroclear or
Clearstream, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The Restricted Period shall be terminated upon:
(i) receipt by the Company of a written certificate
from the Depositary, together with copies of certificates from
Euroclear and Clearstream certifying that they have received
certification of non-United States beneficial ownership of 100% of the
aggregate
27
principal amount of the Regulation S Temporary Global Note (except
to the extent of any beneficial owners thereof who acquired an
interest therein during the Restricted Period pursuant to another
exemption from registration under the Securities Act and who shall
take delivery of a beneficial ownership interest in a 144A Global Note
bearing a Private Placement Legend, all as contemplated by SECTION
2.06(B) hereof); and
(ii) following such receipt, delivery of an Officer's
Certificate to the Trustee.
Following the termination of the Restricted Period, beneficial
interests in the Regulation S Temporary Global Note shall be exchanged for
beneficial interests in the Regulation S Permanent Global Note pursuant to the
Applicable Procedures. Simultaneously with the authentication of the Regulation
S Permanent Global Note, the Trustee shall cancel the Regulation S Temporary
Global Note. The aggregate principal amount of the Regulation S Temporary Global
Note and the Regulation S Permanent Global Note may from time to time be
increased or decreased by adjustments made on the records of the Trustee and the
Depositary or its nominee, as the case may be, in connection with transfers of
interest as hereinafter provided.
(d) TERMS. The terms and provisions contained in the Notes
shall constitute, and are hereby expressly made, a part of this Indenture and
the Company, the Guarantors and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Note conflicts with the
express provisions of this Indenture, the provisions of this Indenture shall
govern and be controlling.
SECTION 2.02 EXECUTION AND AUTHENTICATION.
At least one Officer shall execute the Notes on behalf of the Company
by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose until authenticated substantially in the
form of Exhibit A attached hereto, as the case may be, by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Note has
been duly authenticated and delivered under this Indenture.
On the Issue Date, the Trustee shall, upon receipt of an Company Order
(an "Authentication Order"), authenticate and deliver the Notes. In addition, at
any time, from time to time, the Trustee shall upon an Authentication Order
authenticate and deliver Notes for an aggregate principal amount specified in
such Authentication Order.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
SECTION 2.03 REGISTRAR, PAYING AGENT AND CALCULATION AGENT.
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
Company may appoint one or more
28
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 prior
notice to any Holder. The Company shall notify the Trustee in writing of the
name and address of any Agent not a party to this Indenture. If the Company
fails to appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such. The Company or any of its Subsidiaries may act as
Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Paying Agent
and Registrar for the Notes and to act as Custodian with respect to the Global
Notes.
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
Holders or the Trustee all assets held by the Paying Agent for the payment of
principal, premium, if any, or interest on the Notes, and will notify the
Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary) 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 Trust Indenture Act Section 312(a).
If the Trustee is not the Registrar, the Company shall furnish to the Trustee at
least two Business Days before each Interest Payment Date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of the
Holders of Notes and the Company shall otherwise comply with Trust Indenture Act
Section 312(a).
SECTION 2.06 TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. Except as otherwise set
forth in this SECTION 2.06, a Global Note may be transferred, in whole and not
in part, only to another nominee of the Depositary or to a successor Depositary
or a nominee of such successor Depositary. A beneficial interest in a Global
Note may not be exchanged for a Definitive Note unless (i) the Depositary (x)
notifies the Company that it is unwilling or unable to continue as Depositary
for such Global Note or (y) has ceased to be a clearing agency registered under
the Exchange Act and, in either case, a successor Depositary is not appointed by
the Company within 120 days or (ii) there shall have occurred and be continuing
a Default with respect to the Notes. Upon the occurrence of any of the preceding
events in (i) or (ii) above, Definitive Notes delivered in exchange for any
Global Note or beneficial interests therein will be registered in the names, and
issued in any approved denominations, requested by or on behalf of the
Depositary (in accordance with its customary procedures). Global Notes also may
be exchanged or replaced, in whole or in part, as provided in SECTIONS 2.07 and
2.10 hereof. Every Note authenticated and
29
delivered in exchange for, or in lieu of, a Global Note or any portion thereof,
pursuant to this SECTION 2.06 or SECTION 2.07 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Note, except
for Definitive Notes issued subsequent to any of the preceding events in (i) or
(ii) above and pursuant to SECTION 2.06(C) hereof. A Global Note may not be
exchanged for another Note other than as provided in this SECTION 2.06(A);
PROVIDED, HOWEVER, that beneficial interests in a Global Note may be transferred
and exchanged as provided in SECTION 2.06(B), (C) or (F) hereof.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL NOTES.
The transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also shall require compliance with
either subparagraph (i) or (ii) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL
NOTE. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance
with the transfer restrictions set forth in the Private Placement
Legend; PROVIDED, HOWEVER, that prior to the expiration of the
Restricted Period, transfers of beneficial interests in the Regulation
S Temporary Global Note may not be made to a U.S. Person or for the
account or benefit of a U.S. Person (other than the Initial
Purchaser). Beneficial interests in any Unrestricted Global Note may
be transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders
or instructions shall be required to be delivered to the Registrar to
effect the transfers described in this SECTION 2.06(b)(i).
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS
IN GLOBAL NOTES. In connection with all transfers and exchanges of
beneficial interests that are not subject to SECTION 2.06(B)(I)
hereof, the transferor of such beneficial interest shall deliver to
the Registrar either (A) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to
be credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and
(2) instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be
credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2)
instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Note
shall be registered to effect the transfer or exchange referred to in
(1) above; PROVIDED that in no event shall Definitive Notes be issued
upon the transfer or exchange of beneficial interests in the
Regulation S Temporary Global Note prior to (A) the expiration of the
Restricted Period and (B) the receipt by the Registrar of any
certificates required pursuant to Rule 903. Upon satisfaction of all
of the requirements for transfer or exchange of beneficial interests
in Global Notes contained in this Indenture and the Notes or otherwise
applicable under the Securities Act, the Trustee shall adjust the
principal amount of the relevant Global Note(s) pursuant to SECTION
2.06(H)hereof.
(iii) TRANSFER OF BENEFICIAL INTERESTS TO ANOTHER RESTRICTED
GLOBAL NOTE. A beneficial interest in any Restricted Global Note may
be transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
30
complies with the requirements of SECTION 2.06(B)(II) hereof and the
Registrar receives the following:
(A) if the transferee will take delivery in the
form of a beneficial interest in the 144A Global Note, then
the transferor shall deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (1)
thereof;
(B) if the transferee will take delivery in the
form of a beneficial interest in the Regulation S Global
Note, then the transferor shall deliver a certificate in the
form of Exhibit B hereto, including the certifications in
item (2) thereof; or
(C) if the transferee will take delivery in the
form of a beneficial interest in the IAI Global Note, then
the transferor shall deliver a certificate in the form of
EXHIBIT B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3) thereof, if
applicable.
(iv) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR BENEFICIAL INTERESTS IN AN UNRESTRICTED
GLOBAL NOTE. A beneficial interest in any Restricted Global Note may
be exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
SECTION 2.06(B)(II) hereof and the Registrar receives the following:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Note, a certificate from such Holder substantially in the
form of Exhibit C hereto, including the certifications in
item (1)(a) thereof; or
(B) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form of Exhibit
B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Registrar so requests or if the
Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act and that
the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected at a time when an Unrestricted Global
Note has not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with SECTION 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate principal
amount equal to the aggregate principal amount of beneficial interests
transferred.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.
(c) TRANSFER OR EXCHANGE OF BENEFICIAL INTERESTS FOR DEFINITIVE NOTES.
(i) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
RESTRICTED DEFINITIVE NOTES. If any holder of a beneficial interest in
a Restricted Global Note proposes to exchange
31
such beneficial interest for a Restricted Definitive Note or to
transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Restricted Definitive Note, then, upon the
occurrence of any of the events in SECTION 2.06(A)(I) or (II) hereof
and receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note, a certificate from such holder
substantially in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A, a certificate substantially in the
form of Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904, a certificate substantially in the form of Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144, a certificate
substantially in the form of Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in EXHIBIT B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable;
(F) if such beneficial interest is being transferred to the
Company or any of its Restricted Subsidiaries, a certificate
substantially in the form of Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate substantially in the form of Exhibit B hereto,
including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to SECTION 2.06(H) hereof, and the
Company shall execute and the Trustee shall authenticate and mail to the Person
designated in the instructions a Definitive Note in the applicable principal
amount. Any Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this SECTION 2.06(C) shall be registered in
such name or names and in such authorized denomination or denominations as the
holder of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect Participant.
The Trustee shall mail such Definitive Notes to the Persons in whose names such
Notes are so registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this SECTION 2.06(C)(I) shall
bear the Private Placement Legend and shall be subject to all restrictions on
transfer contained therein.
(ii) BENEFICIAL INTERESTS IN REGULATION S TEMPORARY GLOBAL
NOTE TO DEFINITIVE NOTES. Notwithstanding SECTIONS 2.06(C)(I)(A) and
(C) hereof, a beneficial interest in the
32
Regulation S Temporary Global Note may not be exchanged for a
Definitive Note or transferred to a Person who takes delivery thereof
in the form of a Definitive Note prior to (A) the expiration of the
Restricted Period and (B) the receipt by the Registrar of any
certificates required pursuant to Rule 903(b)(3)(ii)(B) of the
Securities Act, except in the case of a transfer pursuant to an
exemption from the registration requirements of the Securities Act
other than Rule 903 or Rule 904.
(iii) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE NOTES. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only upon the occurrence of any of the events in
SECTION 2.06(A)(I) or (II) hereof and if the Registrar receives the
following:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest
for an Unrestricted Definitive Note, a certificate from such holder
substantially in the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or
(B) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial interest
to a Person who shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such holder
substantially in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case, if the Registrar so requests or if the
Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act and that
the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iv) BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE NOTES. If any holder of a
beneficial interest in an Unrestricted Global Note proposes to
exchange such beneficial interest for a Definitive Note or to transfer
such beneficial interest to a Person who takes delivery thereof in the
form of a Definitive Note, then, upon the occurrence of any of the
events in subsection (i) or (ii) of SECTION 2.06(A) hereof and
satisfaction of the conditions set forth in SECTION 2.06(B)(II)
hereof, the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to SECTION
2.06(H) hereof, and the Company shall execute and the Trustee shall
authenticate and mail to the Person designated in the instructions a
Definitive Note in the applicable principal amount. Any Definitive
Note issued in exchange for a beneficial interest pursuant to this
SECTION 2.06(C)(IV) shall be registered in such name or names and in
such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions
from or through the Depositary and the Participant or Indirect
Participant. The Trustee shall mail such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive
Note issued in exchange for a beneficial interest pursuant to this
SECTION 2.06(C)(IV) shall not bear the Private Placement Legend.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL
INTERESTS.
(i) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a
33
beneficial interest in a Restricted Global Note or to transfer such
Restricted Definitive Note to a Person who takes delivery thereof in
the form of a beneficial interest in a Restricted Global Note, then,
upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder substantially
in the form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred
to a QIB in accordance with Rule 144A, a certificate substantially in
the form of Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such Restricted Definitive Note is being transferred
to a Non-U.S. Person in an offshore transaction in accordance with
Rule 903 or Rule 904, a certificate substantially in the form of
Exhibit B hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144, a certificate
substantially in the form of Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred
to an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other than
those listed in subparagraphs (B) through (D) above, a certificate to
the effect set forth in EXHIBIT C hereto, including the
certifications, certificates and Opinion of Counsel required by item
(3) thereof, if applicable;
(F) if such Restricted Definitive Note is being transferred
to the Company or any of its Restricted Subsidiaries, a certificate
substantially in the form of Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate substantially in the form of Exhibit B hereto,
including the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above,
the applicable Restricted Global Note, in the case of clause (B) above, the
applicable 144A Global Note, and in the case of clause (C) above, the applicable
Regulation S Global Note.
(ii) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A Holder of a Restricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Restricted Definitive Note to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) if the Holder of such Definitive Notes proposes to
exchange such Notes for a beneficial interest in the Unrestricted
Global Note, a certificate from such Holder substantially in the form
of Exhibit C hereto, including the certifications in item (1)(c)
thereof; or
34
(B) if the Holder of such Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in the
form of a beneficial interest in the Unrestricted Global Note, a
certificate from such Holder substantially in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case, if the Registrar so requests or if the
Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act and that
the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions in this SECTION 2.06(D)(II), the
Trustee shall cancel the Definitive Notes and increase or cause to be increased
the aggregate principal amount of the Unrestricted Global Note.
(iii) UNRESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS
IN UNRESTRICTED GLOBAL NOTES. A Holder of an Unrestricted Definitive
Note may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Definitive Notes to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial
interest is effected pursuant to subparagraph (ii)(B) or (iii) above at a time
when an Unrestricted Global Note has not yet been issued, the Company shall
issue and, upon receipt of an Authentication Order in accordance with SECTION
2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal amount of
Definitive Notes so transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE NOTES.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this SECTION 2.06(E), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this SECTION
2.06(E):
(i) RESTRICTED DEFINITIVE NOTES TO RESTRICTED DEFINITIVE
NOTES. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the
form of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer will be made pursuant to a QIB in
accordance with Rule 144A, then the transferor shall deliver a
certificate substantially in the form of Exhibit B hereto, including
the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or
Rule 904 then the transferor shall deliver a certificate in the form
of Exhibit B hereto, including the certifications in item (2) thereof;
or
35
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act,
then the transferor shall deliver a certificate in the form of Exhibit
B hereto, including the certifications required by item (3) thereof,
if applicable.
(ii) RESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE
NOTES. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if the Registrar receives the following:
(A) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for an Unrestricted Definitive Note, a
certificate from such Holder substantially in the form of Exhibit C
hereto, including the certifications in item (1)(d) thereof; or
(B) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take delivery
thereof in the form of an Unrestricted Definitive Note, a certificate
from such Holder substantially in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case, if the Registrar so requests, an Opinion of
Counsel in form reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with the Securities
Act and that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) UNRESTRICTED DEFINITIVE NOTES TO UNRESTRICTED
DEFINITIVE NOTES. A Holder of Unrestricted Definitive Notes may
transfer such Notes to a Person who takes delivery thereof in the form
of an Unrestricted Definitive Note. Upon receipt of a request to
register such a transfer, the Registrar shall register the
Unrestricted Definitive Notes pursuant to the instructions from the
Holder thereof.
(f) LEGENDS. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture:
(i) PRIVATE PLACEMENT LEGEND.
(A) Except as permitted by subparagraph (B) below, each
Global Note and each Definitive Note (and all Notes issued in exchange
therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
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, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT), (B) IT IS A NON-U.S. PURCHASER AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE
36
MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (C) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH
(a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, AND (2)
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO
THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS ONE YEAR
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF
THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE
COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, 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 WHICH NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C)
PURSUANT TO OFFERS AND SALES TO NON-U.S. PURCHASERS THAT OCCUR OUTSIDE
THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF SUBPARAGRAPH (a)(1),(2), (3) OR (7) OF RULE 501 UNDER
THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT,
OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, 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,
(E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C), (D) OR (F)
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE
FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON
THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraph (b)(iv), (C)(III),
(C)(IV), (D)(II), (D)(III), (E)(II) or (E)(III) of this SECTION 2.06
(and all Notes issued in exchange therefor or substitution thereof)
shall not bear the Private Placement Legend.
(ii) GLOBAL NOTE LEGEND. Each Global Note shall bear a
legend in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06(g) OF
THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT
IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
37
PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR
BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("DTC")
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE
&CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &CO. OR SUCH
OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE &CO., HAS AN INTEREST HEREIN."
(iii) REGULATION S TEMPORARY GLOBAL NOTE LEGEND. The
Regulation S Temporary Global Note shall bear a legend in
substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN)."
(g) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with SECTION 2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(h) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes
and Definitive Notes upon receipt of an Authentication Order in
accordance with SECTION 2.02 hereof or at the Registrar's request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive
Note for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or
similar
38
governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to SECTIONS 2.07, 2.10, 3.06, 3.09,
4.10, 4.11, 4.15 and 9.05 hereof).
(iii) Neither the Registrar nor the Company shall be
required to register the transfer of or exchange any Note selected for
redemption in whole or in part, except the unredeemed portion of any
Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under SECTION 3.02 hereof and ending
at the close of business on the day of selection, (B) to register the
transfer of or to exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being
redeemed in part or (C) to register the transfer of or to exchange a
Note between a Record Date and the next succeeding Interest Payment
Date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of (and premium, if any) and interest on such Notes and for
all other purposes, and none of the Trustee, any Agent or the Company
shall be affected by notice to the contrary.
(vii) Upon surrender for registration of transfer of any
Note at the office or agency of the Company designated pursuant to
SECTION 4.02 hereof, the Company shall execute, and the Trustee shall
authenticate and mail, in the name of the designated transferee or
transferees, one or more replacement Notes of any authorized
denomination or denominations of a like aggregate principal amount.
(viii) At the option of the Holder, Notes may be exchanged
for other Notes of any authorized denomination or denominations of a
like aggregate principal amount upon surrender of the Notes to be
exchanged at such office or agency. Whenever any Global Notes or
Definitive Notes are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and mail, the replacement
Global Notes and Definitive Notes which the Holder making the exchange
is entitled to in accordance with the provisions of SECTION 2.02
hereof.
(ix) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this
SECTION 2.06 to effect a registration of transfer or exchange may be
submitted by facsimile.
(x) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with
respect to any transfer of any interest in any Note (including any
transfers between or among Depositary Participants or beneficial
owners of interests in any Global Note) other than to require delivery
of such certificates and other documentation or
39
evidence as are expressly required by, and to do so if and when
expressly required by the terms of, this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.
SECTION 2.07 REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, the Registrar or
the Company and the Trustee receives evidence to its satisfaction of the
ownership and destruction, loss or theft of any Note, the Company shall issue
and the Trustee, upon receipt of an Authentication Order, shall authenticate a
replacement Note if the Trustee's requirements are met. If required by the
Trustee or the Company, an indemnity bond shall 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.
Every replacement Note is a contractual obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
SECTION 2.08 OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
SECTION 2.08 as not outstanding. Except as set forth in SECTION 2.09 hereof, a
Note does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note.
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.
If the principal amount of any Note is considered paid under SECTION
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes 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, 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 relying on any such direction, waiver or consent, only
Notes that a Responsible Officer of the Trustee knows are so owned shall be so
disregarded. Notes so owned which have been pledged in good faith shall not be
disregarded if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right to deliver any such direction, waiver or consent with respect to
the Notes and that the pledgee is not the Company or any obligor upon the Notes
or any Affiliate of the Company or of such other obligor.
40
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 certificated 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 definitive Notes in exchange for temporary Notes.
Holders and beneficial holders, as the case may be, of temporary Notes
shall be entitled to all of the benefits accorded to Holders, or beneficial
holders, respectively, of Notes under this Indenture.
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
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 requirement of the Exchange Act). Certification of the
destruction of all cancelled Notes shall be delivered to the Company. The
Company may not issue new Notes to replace Notes that it has paid or that have
been delivered to the Trustee for cancellation.
SECTION 2.12 DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes, it shall
pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in SECTION 4.01 hereof. The Company shall notify the Trustee in writing in
the form of an Officer's Certificate 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
provided in this SECTION 2.12. The Trustee shall fix or cause to be fixed each
such special record date and payment date; PROVIDED that no such special record
date shall be less than 10 days prior to the related payment date for such
defaulted interest. The Trustee shall promptly notify the Company of such
special record date. At least 15 days before the special record date, the
Company (or, upon the written request of the Company, the Trustee in the name
and at the expense of the Company) shall mail or cause to be mailed, first-class
postage prepaid, to each Holder a notice at his or her address as it appears in
the register maintained by the Registrar that states the special record date,
the related payment date and the amount of such interest to be paid.
Subject to the foregoing provisions of this SECTION 2.12 and for
greater certainty, 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.
41
SECTION 2.13 CUSIP NUMBERS.
The Company in issuing the Notes may use CUSIP numbers (if then
generally in use) and, if so, the Trustee shall use CUSIP numbers in notices of
redemption as a convenience to Holders; PROVIDED, that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of 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 as promptly as practicable notify the
Trustee of any change in the CUSIP numbers.
ARTICLE 3
REDEMPTION
SECTION 3.01 NOTICES TO TRUSTEE.
If the Company elects to redeem the Notes pursuant to Section 3.07
hereof, it shall furnish to the Trustee, at least 10 Business Days before notice
of redemption is required to be mailed or caused to be mailed to Holders
pursuant to SECTION 3.03 hereof but not more than 60 days before a redemption
date, an Officer's Certificate complying with the applicable provisions of
SECTION 12.05 setting forth (i) the paragraph or subparagraph of such Note
and/or Section of this Indenture pursuant to which the redemption shall occur,
(ii) the redemption date, (iii) the principal amount of the Notes, as the case
may be, to be redeemed, (iv) the redemption price and (v) the CUSIP number, if
any. Any optional redemption referenced in such Officer's Certificate may be
cancelled by the Company at any time prior to a Notice of Redemption being
mailed to any Holder and, thereafter, shall be null and void.
SECTION 3.02 SELECTION OF NOTES TO BE REDEEMED OR PURCHASED.
If less than all of the Notes are to be redeemed or purchased in an
offer to purchase at any time, the Trustee shall select the Notes to be redeemed
or purchased (a) if the Notes are listed on any national securities exchange, in
compliance with the requirements of the principal national securities exchange
on which the Notes are listed or (b) on a pro rata basis or, to the extent that
selection on a pro rata basis is not practicable, by lot or by such other method
as the Trustee reasonably considers fair and appropriate; PROVIDED that no
partial redemption will reduce the principal amount of a Note not redeemed to be
less than $1,000; PROVIDED further, that if a partial redemption is made with
the proceeds of an Equity Offering then the Trustee shall select the Notes or
portions thereof for redemption only on a pro rata basis or on as nearly a pro
rata basis as is practicable (subject to the procedures of the Depositary),
unless such method is prohibited.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption or purchase and, in the case of any Note selected for
partial redemption or purchase, the principal amount thereof to be redeemed or
purchased. Notes and portions of Notes selected shall be in amounts of $1,000 or
whole multiples of $1,000; no Notes of $1,000 or less can be redeemed in part,
except that if all of the Notes of a Holder are to be redeemed or purchased, the
entire outstanding amount of Notes held by such Holder, even if not a multiple
of $1,000, shall be redeemed or purchased. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Notes called for redemption
or purchase also apply to portions of Notes called for redemption or purchase.
42
SECTION 3.03 NOTICE OF REDEMPTION OR REPURCHASE.
Subject to SECTION 3.09 hereof, the Company shall mail or cause to be
mailed by first-class mail notices of redemption or repurchase at least 30 days
but not more than 60 days before the redemption or repurchase date to each
Holder of Notes to be redeemed or repurchased at such Holder's registered
address, except that redemption or repurchase notices may be mailed more than 60
days prior to a redemption or repurchase date if the notice is issued in
connection with ARTICLE 8 or ARTICLE 11 hereof. Except as set forth in SECTION
3.07(B) hereof, notices of redemption or repurchase may not be conditional.
Failure to give notice of redemption, or any defect therein to any Holder of any
Note selected for redemption shall not impair or affect the validity of the
redemption of any other Note.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption or repurchase date;
(b) the redemption or repurchase price;
(c) if any Note is to be redeemed or repurchased in part only,
the portion of the principal amount of that Note that is to
be redeemed or repurchased and that, after the redemption or
repurchase date upon surrender of such Note, a new Note or
Notes in principal amount equal to the unredeemed
unpurchased portion of the original Note representing the
same indebtedness to the extent not redeemed or repurchased
will be issued in the name of the Holder of the Notes
(unless such unredeemed or unrepurchased portion is equal to
or less than $1,000 in principal amount) or transferred by
book entry upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption or repurchase shall be
surrendered to the Paying Agent to collect the redemption or
repurchase price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption or
repurchase ceases to accrue on and after the redemption or
repurchase date;
(g) the paragraph or subparagraph of the Notes and/or Section of
this Indenture pursuant to which the Notes called for
redemption or repurchase are being redeemed or repurchased,
as applicable;
(h) the CUSIP number, if any, and the statement 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; and
(i) if in connection with a redemption or repurchase pursuant to
SECTION 3.07(B) hereof, any condition to such redemption or
repurchase.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; PROVIDED that the Company
shall have delivered to the Trustee, at least 10 Business Days before notice of
redemption is required to be mailed or caused to be mailed to Holders pursuant
to this SECTION 3.03 (unless a shorter notice shall be agreed to by the
Trustee), an Officer's
43
Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the preceding paragraph.
SECTION 3.04 EFFECT OF NOTICE OF 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 (except as provided for in SECTION
3.07(B) hereof). The notice, if mailed in a manner herein provided, shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Note designated for redemption in whole or in
part shall not affect the validity of the proceedings for the redemption of any
other Note. Subject to SECTION 3.05 hereof, on and after the redemption date,
interest shall cease to accrue on Notes or portions of Notes called for
redemption.
SECTION 3.05 DEPOSIT OF REDEMPTION OR PURCHASE PRICE.
Prior to 12:00 p.m. (New York City time) on the redemption or purchase
date, the Company shall deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption or purchase price of and accrued and unpaid
interest on all Notes (or a portion thereof) to be redeemed or purchased on that
date. The Trustee or the Paying Agent shall promptly, and in any event within
two Business Days after the redemption or repurchase date, return to the Company
any money deposited with the Trustee or the Paying Agent by the Company in
excess of the amounts necessary to pay the redemption price of, and accrued and
unpaid interest on, all Notes to be redeemed or purchased.
If the Company complies with the provisions of the preceding paragraph,
on and after the redemption or purchase date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption or purchase whether or
not such Notes are presented for payment. If a Note is redeemed or purchased on
or after a Record Date but on or prior to the related Interest Payment Date,
then any accrued and unpaid interest to the redemption or purchase date shall be
paid to the Person in whose name such Note was registered at the close of
business on such Record Date. If any Note called for redemption or purchase
shall not be so paid upon surrender for redemption or purchase because of the
failure of the Company to comply with the preceding paragraph, interest shall be
paid on the unpaid principal, from the redemption or purchase date until such
principal is paid, and to the extent lawful on any interest accrued to the
redemption or purchase date 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 OR PURCHASED IN PART.
Upon surrender and cancellation of a Note that is redeemed or purchased
in part, the Company shall issue and the Trustee shall authenticate for the
Holder at the expense of the Company a new Note equal in principal amount to the
unredeemed or unpurchased portion of the Note surrendered representing the same
indebtedness to the extent not redeemed or purchased; PROVIDED that each new
Note will be in a principal amount of $1,000 or an integral multiple of $1,000.
SECTION 3.07 OPTIONAL REDEMPTION.
(a) At any time prior to May 31, 2011, the Company may redeem all or a
part of the Notes, upon not less than 30 nor more than 60 days' prior notice
mailed by first-class mail to each Holder's registered address, at a redemption
price equal to 100% of the principal amount of notes redeemed plus the
Applicable Premium as of, and accrued and unpaid interest to the date of
redemption (the "Redemption Date"), subject to the rights of Holders of Notes on
the relevant Record Date to receive
44
interest due on the relevant Interest Payment Date. The Company may acquire any
Notes by means other than redemption, whether pursuant to an issuer tender
offer, in open market transactions, or otherwise, assuming such acquisition does
not otherwise violate the terms of this Indenture.
(b) Notwithstanding anything herein to the contrary, at any time on or
prior to May 31, 2011, the Company may on any one or more occasions redeem the
Notes with the net cash proceeds of one or more Equity Offerings, at a
redemption price of 114% of the aggregate principal amount thereof, plus accrued
and unpaid interest thereon to the Redemption Date; PROVIDED that at least 65%
of the aggregate principal amount of the Notes originally issued remains
outstanding immediately following such redemption (excluding Notes held by the
Company or any of its Subsidiaries); and PROVIDED, FURTHER, that such redemption
shall occur within 90 days of the date of the closing of any such Equity
Offering.
(c) The Notes will be redeemable, in whole or in part on any one or
more occasions, at the option of the Company, on or after May 31, 2011, upon not
less than 30 nor more than 60 days' notice, at the redemption prices (expressed
as percentages of the principal amount thereof) set forth below plus accrued and
unpaid interest thereon to the applicable redemption date, if redeemed during
the twelve-month period beginning on May 31 of the years indicated below:
YEAR PERCENTAGE
---- ----------
2011.............................................................. 107.000%
2012 and thereafter .............................................. 100.000%
(d) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of SECTIONS 3.01 through 3.06 hereof.
SECTION 3.08 MANDATORY REDEMPTION.
The Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
SECTION 3.09 OFFERS TO REPURCHASE BY APPLICATION OF EXCESS PROCEEDS OR
EXCESS CASH FLOW.
(a) In the event that, pursuant to SECTION 4.10 or SECTION 4.11
hereof, the Company shall be required to commence an Asset Sale Offer or an
Excess Cash Flow Offer, respectively (each, a "Repurchase Offer"), it shall
follow the procedures specified below.
(b) The Asset Sale Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "Offer Period"). No
later than five Business Days after the termination of the Offer Period (the
"Purchase Date"), the Company shall apply all Excess Proceeds or Excess Cash
Flow Offer Amount, as applicable (in either case, the "Offer Amount"), to the
purchase of Notes and, if required, PARI PASSU Indebtedness (on a pro rata
basis, if applicable), or, if less than the Offer Amount has been tendered, all
Notes and PARI PASSU Indebtedness tendered in response to the Repurchase Offer.
Payment for any Notes so purchased shall be made in the same manner as interest
payments are made.
(c) If the Purchase Date is on or after a Record Date and on or
before the related Interest Payment Date, any accrued and unpaid interest, up to
but excluding the Purchase Date, shall be paid to the Person in whose name a
Note is registered at the close of business on such Record Date, and no
additional interest shall be payable to Holders who tender Notes pursuant to the
Repurchase Offer.
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(d) Upon the commencement of a Repurchase Offer, the Company
shall send, by first-class mail, a notice to each of the 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 Repurchase Offer. The
Asset Sale Offer shall be made to all Holders and holders of PARI PASSU
Indebtedness. The notice, which shall govern the terms of the Repurchase Offer,
shall state:
(i) that the Repurchase Offer is being made pursuant to
this SECTION 3.09 and SECTION 4.10 or SECTION 4.11, as applicable,
hereof and the length of time the Repurchase Offer shall remain open;
(ii) the Offer Amount, the purchase price and the Purchase
Date;
(iii) that any Note not tendered or accepted for payment
shall continue to accrue interest;
(iv) that, unless the Company defaults in making such
payment, any Note accepted for payment pursuant to the Repurchase
Offer shall cease to accrue interest after the Purchase Date;
(v) that Holders electing to have a Note purchased pursuant
to a Repurchase Offer may elect to have Notes purchased in minimum
amounts of $2,000 and integral multiples of $1,000 only;
(vi) that Holders electing to have a Note purchased pursuant
to any Repurchase Offer shall be required to surrender such Note, with
the form entitled "Option of Holder to Elect Purchase" attached to the
Note completed, or transfer by book-entry transfer, to the Company,
the Depositary, if appointed by the Company, or a Paying Agent at the
address specified in the notice at least three Business Days before
the Purchase Date;
(vii) that Holders shall be entitled to withdraw their
election if the Company, the Depositary or the Paying Agent, as the
case may be, receives, not later than the expiration of the Offer
Period, a facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Note the Holder delivered for
purchase and a statement that such Holder is withdrawing his election
to have such Note purchased;
(viii) that, if the aggregate principal amount of Notes and
PARI PASSU Indebtedness surrendered by the holders thereof exceeds the
Offer Amount, the Trustee shall select the Notes and the applicable
Person (but not the Trustee) shall select such PARI PASSU Indebtedness
to be purchased on a pro rata basis based on the accreted value or
principal amount of the Notes or, for purposes of such applicable
Person's selection (but not the Trustee), such PARI PASSU Indebtedness
tendered (with such adjustments as may be deemed appropriate by the
Trustee, in the case of the Notes, and by the applicable Person (but
not the Trustee), in the case of PARI PASSU Indebtedness, so that only
Notes in denominations of $1,000, or integral multiples thereof, shall
be purchased); and
(ix) that Holders whose Notes were purchased only in part
shall be issued new Notes equal in principal amount to the unpurchased
(to the extent that such unpurchased portion equals to $1,000 in
principal amount or an integral multiples thereof) portion of the
Notes surrendered (or transferred by book-entry transfer) representing
the same indebtedness to the extent not repurchased.
46
(e) On or before the Purchase Date, the Company shall, to the extent
lawful, (1) accept for payment, on a pro rata basis to the extent
necessary, the Offer Amount of Notes or portions thereof validly
tendered and not withdrawn pursuant to the Repurchase Offer, or if
less than the Offer Amount has been tendered, all Notes promptly
tendered and not withdrawn and (2) deliver or cause to be delivered
to the Trustee the Notes properly accepted together with an
Officer's Certificate stating the aggregate principal amount of
Notes or portions thereof so tendered.
(f) The Company, the Depositary or the Paying Agent, as the case may be,
shall promptly mail or deliver to each tendering Holder an amount
equal to the purchase price of the Notes properly tendered and not
withdrawn by such Holder and accepted by the Company for purchase,
and the Company shall promptly issue a new Note, and the Trustee,
upon receipt of an Authentication Order, shall authenticate and mail
or deliver (or cause to be transferred by book-entry) such new Note
to such Holder in a principal amount equal to any unpurchased
portion of the Note surrendered representing the same indebtedness
to the extent not repurchased; PROVIDED that each such new Note
shall be in a principal amount of $1,000 or an integral multiple
thereof. Any Note not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company shall
publicly announce the results of the Repurchase Offer on or as soon
as practicable after the Purchase Date.
Other than as specifically provided in this SECTION 3.09, SECTION 4.10
or SECTION 4.11 hereof, any purchase pursuant to this SECTION 3.09 shall be made
pursuant to the applicable provisions of SECTIONS 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
SECTION 4.01 PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest on the Notes on the dates and in the manner provided in the
Notes. Principal, premium, if any, and interest shall be considered paid on the
date due if the Paying Agent, if other than the Company or a Subsidiary, holds
as of 12:00 p.m. Eastern Time on the due date money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due. Such Paying Agent shall
return to the Company promptly, and in any event, no later than two Business
Days following the date of payment, any money (including accrued interest) that
exceeds such amount of principal, premium, if any, and interest paid on the
Notes. If a payment date is a Legal Holiday at a place of payment, payment may
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue on such payment for the intervening period.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
the then applicable interest rate on the Notes to the extent lawful; it shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful.
Interest shall 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 the office required under SECTION 2.03
(which may be an office of the Trustee or an affiliate of the Trustee, Registrar
or co-registrar) where the Notes may be presented or
47
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at The Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations. The
Company shall give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
The Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with SECTION 2.03
hereof.
SECTION 4.03 REPORTS.
(a) Whether or not required by the rules and regulations of the
SEC so long as any Notes are outstanding, the Company will furnish to the
Trustee on behalf of the Holders (i) all quarterly and annual financial
information that would be required to be contained in a filing with the SEC on
Forms 10-Q and 10-K if the Company were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" that describes the financial condition and results of operations of
the Company and its consolidated Subsidiaries (showing in reasonable detail,
either on the face of the financial statements or in the footnotes thereto and
in Management's Discussion and Analysis of Financial Condition and Results of
Operations, the financial condition and results of operations of the Company and
its Restricted Subsidiaries separate from the financial condition and results of
operations of the Unrestricted Subsidiaries of the Company) and, with respect to
the annual information only, a report thereon by the Company's certified
independent accountants, and (ii) all information that would be required to be
filed with the SEC on Form 8-K if the Company were required to file such
reports, under the following items of Form 8-K: Item 1.01 (Entry into a Material
Definitive Agreement); Item 1.02 (Termination of a Material Definitive
Agreement); Item 1.03 (Bankruptcy or Receivership); Item 2.01 (Completion of
Acquisition or Disposition of Assets); Item 2.03 (Creation of a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet Arrangement of a
Registrant); Item 2.04 (Triggering Events that Accelerate or Increase a Direct
Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement);
Item 2.05 (Costs Associated with Exit or Disposal Activities); Item 2.06
(Material Impairments); Item 3.03 (Material Modification to Rights of Security
Holders); Item 4.01 (Changes in Certifying Registrant's Accountant); Item 4.02
(Non-Reliance on Previously Issued Financial Statements or a Related Audit
Report or Completed Interim Review); Item 5.01 (Changes in Control of
Registrant); Item 5.02 (Departure of Directors or Principal Officers; Election
of Directors; Appointment of Principal Officers) and Item 7.01 (Regulation FD
Disclosure), in each case within the time periods specified in the SEC's rules
and regulations (together with any extensions granted by the SEC); PROVIDED,
HOWEVER, that if the SEC will accept the filings of the Company, the Company, at
its option, need not furnish such reports to the Trustee or the Holders to the
extent it elects to file such reports with the SEC. In addition, for so long as
any Notes remain outstanding, the Company will furnish to the Holders, upon
their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act.
(b) NOTWITHSTANDING THE FOREGOING,
(i) XXXXXXXX-XXXXX. No certifications or attestations
concerning the financial statements or disclosure controls and
procedures or internal controls that would
48
otherwise be required pursuant to the Xxxxxxxx-Xxxxx Act of 2002 will
be required (PROVIDED FURTHER, HOWEVER, that nothing contained in the
Indenture shall otherwise require the Company to comply with the terms
of the Xxxxxxxx-Xxxxx Act of 2002 at any time when it would not
otherwise be subject to such statute);
(ii) FINANCIAL STATEMENTS OF UNCONSOLIDATED ENTITIES. No
financial statements of unconsolidated entities will be required;
(iii) SEGMENT REPORTING. The Company will not be required to
prepare its financial statements in accordance with SFAS No. 131;
PROVIDED, HOWEVER, that the Company shall include in such reports (in
the results of operations discussion in the "Management's Discussion
and Analysis of Financial Condition and Results of Operations" section
of such report or, if no such section is required, in such other
similarly prominent section of such report) information regarding the
net sales and the material reasons for changes with respect to such
financial measure with respect to each portion of its business that
would constitute a separate operating segment under SFAS No. 131;
(iv) MEZZANINE SECURITIES. The Company will not be required
to comply with SFAS No. 150 in respect of any period prior to the
Issue Date;
(v) SUPPLEMENTAL SCHEDULES. The schedules identified in
Section 5-04 of Regulation S-X will not be required;
(vi) ITEM 402 OF REGULATION S-K. The Company may limit the
information disclosed in such reports in respect of Item 402 of
Regulation S-K under the Securities Act to the information identified
in Item 402 that is included in the Offering Circular (which
disclosure regarding such types of information shall be presented in a
manner consistent in all material respects with the disclosure
contained in the Offering Circular);
(vii) ITEM 403 OF REGULATION S-K. The Company may limit the
information disclosed in such reports in respect of Item 403 of
Regulation S-K under the Securities Act to identifying, in each case
utilizing a reference date permitted under Item 403, (A) the aggregate
voting and economic ownership interests in the Company of each person
(including any "group" as that term is used in Section 13(d)(3) under
the Exchange Act) who is known to the Company to be the beneficial
owner of more than 5% of any class of the Company's Capital Stock, (B)
the aggregate voting and economic ownership interests in the Company
beneficially owned by directors and officers of the Company as a group
and (C) the information required to be disclosed under Item 403(c);
and
(viii) EXHIBITS. No exhibits pursuant to Item 601 of
Regulation S-K under the Securities Act (other than in respect of
material agreements governing Indebtedness) will be required.
Unless the Company then files periodic reports on XXXXX (or a similar
system), the Company will post the reports specified in the first paragraph of
this covenant on a website no later than the date the Company is required to
provide those reports to the Trustee and the Holders of the Notes and maintain
such posting so long as any Notes remain outstanding; PROVIDED, HOWEVER, that
such website may be password protected so long as the Company makes reasonable
efforts to notify the Trustee and the Holders of postings to the website
(including through the information dissemination procedures of the depository
for the Notes) and to provide the Trustee, Holders, BONA FIDE prospective
investors, securities analysts and market makers at recognized banking firms
with access to such website; PROVIDED, FURTHER
49
that no conditions may be imposed on access to such information other than a
representation by the Person accessing such information that it is the Trustee,
a Holder, a BONA FIDE prospective investor, a securities analyst or a market
maker.
The Company will use reasonable efforts to participate in quarterly
conference calls to discuss its results of operations with Holders. Within 5
Business Days prior to such conference calls, the Company will use reasonable
efforts to inform Holders of such calls. Access to such conference calls may be
password-protected so long as the Company takes reasonable steps to provide the
Holders, prospective investors, securities analysts and market makers with
access to such calls.
(c) In the event that (1) the rules and regulations of the SEC permit the
Company and any direct or indirect parent entity (including Parent) to report at
such parent entity's level on a consolidated basis, (2) such parent entity is
not engaged in any business other than a Permitted Business and (3) such parent
entity's consolidated capitalization (including cash and cash equivalents) does
not differ materially from that of the Company and its Subsidiaries on a
consolidated basis, the information and reports required by this SECTION 4.03
may be those of such parent entity on a consolidated basis; PROVIDED that such
information and reports distinguish in all material respects between the Company
and its Subsidiaries and such parent entity and its other subsidiaries, if any.
(d) Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates). Upon request by the
Company, the Trustee shall forward such reports to the Holders.
SECTION 4.04 COMPLIANCE CERTIFICATE.
(a) The Company and each Guarantor (to the extent that such Guarantor
is so required under the Trust Indenture Act) shall deliver to the Trustee,
within 90 days after the end of each fiscal year of the Company ending after the
Issue Date, a certificate from the principal executive officer, principal
financial officer or principal accounting officer stating that a review of the
activities of the Company and its Restricted Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing Officer with a
view to determining whether the Company has performed its obligations under this
Indenture, and further stating, as to such Officer signing such certificate,
that to the best of his or her knowledge the Company has performed each and
every condition and covenant contained in this Indenture that is applicable to
it in all material respects and is not in default in the performance or
observance of any of the terms, provisions, covenants and conditions of this
Indenture (or, if a Default shall have occurred, describing all such Defaults of
which he or she may have knowledge and what action the Company is taking or
proposes to take with respect thereto).
(b) When any Default has occurred and is continuing under this
Indenture, or if the Trustee or the holder of any other evidence of Indebtedness
of the Company or any Subsidiary gives any notice or takes any other action with
respect to a claimed Default, the Company shall promptly (which shall be no more
than ten (10) Business Days) deliver to the Trustee by registered or certified
mail or by facsimile transmission an Officer's Certificate specifying such event
and what action the Company proposes to take with respect thereto.
50
SECTION 4.05 TAXES.
The Company shall pay, and shall cause each of its Restricted
Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate negotiations or proceedings or where the failure to effect such
payment is not adverse in any material respect to the Holders of the Notes.
SECTION 4.06 STAY, EXTENSION AND USURY LAWS.
The Company and each of the Guarantors covenant (to the extent that
they may lawfully do so) that they shall not at any time insist upon, plead, or
in any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Indenture; and the
Company and each of the Guarantors (to the extent that they may lawfully do so)
hereby expressly waive all benefit or advantage of any such law, and covenant
that they shall not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been enacted.
SECTION 4.07 LIMITATION ON RESTRICTED PAYMENTS.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any other payment or
distribution on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests (including, without limitation, any
payment in connection with any merger or consolidation involving the
Company or any of its Restricted Subsidiaries) or to the direct or
indirect holders of the Company's or any Restricted Subsidiary's
Equity Interest in their capacity as such (other than dividends or
distributions payable (x) in Equity Interests (other than Disqualified
Interests) of the Company or (y) to the Company or a Restricted
Subsidiary of the Company);
(ii) purchase, redeem or otherwise acquire or retire for
value (including, without limitation, in connection with any merger or
consolidation involving the Company) any Equity Interests of the
Company or any direct or indirect parent of the Company (other than
any such Equity Interests owned by the Company or any Restricted
Subsidiary of the Company);
(iii) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value any
Indebtedness that is subordinated to the Notes except a payment of
interest, principal or sinking fund obligation at Stated Maturity; or
(iv) make any Restricted Investment
(all such payments and other actions set forth in clauses (i) through (iv) above
being collectively referred to as "Restricted Payments"), unless, at the time of
and after giving effect to such Restricted Payment:
(1) no Default or Event of Default shall have occurred and
be continuing or would occur as a consequence thereof;
(2) the Company would, at the time of such Restricted
Payment and after giving PRO FORMA effect thereto as if such
Restricted Payment had been made at the beginning of
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the applicable four quarter period, have been permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in SECTION 4.09(A) hereof; and
(3) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Company and its
Restricted Subsidiaries after the Issue Date (excluding Restricted
Payments permitted by clauses (ii)(1), (vi) and (ix) of clause (b)
below), is less than the sum, without duplication, of:
(A) 25% of the Consolidated Net Income of the Company for
the period (taken as one accounting period) from the beginning of the
first full fiscal quarter commencing after the date of this Indenture
(the "Measurement Date") to the end of the Company's most recently
ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if such
Consolidated Net Income for such period is a deficit, less 100% of
such deficit); plus
(B) 50% of the aggregate net proceeds, including the fair
market value of any property, received by the Company since the
Measurement Date as a contribution to its equity capital or from the
issue or sale of Equity Interests of the Company (other than
Disqualified Interests) or from the issue or sale of Disqualified
Interests or debt securities of the Company that have been converted
into such Equity Interests (other than Equity Interests (or
Disqualified Interests or convertible debt securities) sold to a
Subsidiary of the Company), together with the aggregate cash and Cash
Equivalents received by the Company or any of its Restricted
Subsidiaries at the time of such conversion or exchange plus the
amount by which Indebtedness of the Company and its Restricted
Subsidiaries is reduced upon the conversion or exchange subsequent to
the Issue Date of any Indebtedness which is convertible into or
exchangeable for Qualified Capital Interests of the Company or any of
its Restricted Subsidiaries; plus
(C) to the extent that any Restricted Investment that was
made after the Issue Date is sold for cash or otherwise liquidated or
repaid for cash, the lesser of (x) the cash return of capital
including for the release of any guarantee with respect to such
Restricted Investment (less the cost of disposition, if any) and (y)
the aggregate amount of such Restricted Investment that was treated as
a Restricted Payment when made.
(b) The foregoing provisions will not prohibit
(i) the payment of any dividend or other distribution or
redemption within 60 days after the date of declaration or call for
redemption thereof, if at said date of declaration or call for
redemption such payment would have complied with the provisions of
this Indenture;
(ii) the making of any Restricted Payment (1) in exchange
for other Equity Interests of the Company (other than any Disqualified
Interests) or (2) out of the net cash proceeds of the substantially
concurrent (and in any event not later than 60 days) sale for cash
(other than to a Subsidiary of the Company) of other Equity Interests
of the Company (other than any Disqualified Interests); PROVIDED that
the amount of any such net cash proceeds that are utilized for any
such redemption, repurchase, retirement, defeasance or other
acquisition pursuant to clause (1) hereof shall be excluded from
clause (3)(ii) of clause (a) above;
52
(iii) the defeasance, redemption, repurchase or other
acquisition of subordinated Indebtedness or Disqualified Interests of
the Company or a Guarantor with the net cash proceeds from a
substantially concurrent (and in any event not later than 60 days)
incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration or payment of any dividend or other
distribution by a Subsidiary of the Company to the holders of its
common Equity Interests on a pro rata basis;
(v) the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company or any
Subsidiary of the Company and any distribution, loan or advance to
Parent or any direct or indirect parent of Parent for the repurchase,
redemption or other acquisition or retirement for value of any Equity
Interests of Parent or any direct or indirect parent of Parent, in
each case, held by any current or former officer, director, consultant
or employee of the Company or any of its Restricted Subsidiaries (or
Heirs or other permitted transferees thereof); PROVIDED that the
aggregate price paid for all such repurchased, redeemed, acquired or
retired Equity Interests may not exceed (A) for the fiscal year ending
on or about December 31, 2008, (x) in the case of Xxxxx Xxxxxxx,
$296,000, (y) in the case of Xxxxxxx Xxxxxx, $175,000 and (B) $250,000
in any calendar year thereafter; PROVIDED, FURTHER, that in the case
of clause (B) only, the Company may carry over and make in subsequent
calendar years, in addition to the amounts permitted for such calendar
year, the amount of such purchases, redemptions or other acquisitions
or retirements for value (or distributions, loans or advances to
Parent or a direct or indirect Parent) permitted to have been made but
not made in any preceding calendar year up to a maximum of $250,000 in
any calendar year; PROVIDED, FURTHER, that such amount in any calendar
year may be increased by an amount not to exceed the cash proceeds of
key man life insurance policies received by the Company and its
Restricted Subsidiaries after the Issue Date less any amounts
previously applied to the payment of Restricted Payments pursuant to
this clause (v); PROVIDED, FURTHER, that cancellation of Indebtedness
owing to the Company from employees, officers, directors and
consultants of the Company or any of its Restricted Subsidiaries in
connection with the repurchase of Equity Interests from such Persons
will not be deemed to constitute a Restricted Payment for purposes of
this SECTION 4.07 or any other provisions of this
Indenture;
(vi) the repurchase of Equity Interests deemed to occur upon
the exercise of options, warrants or other convertible securities to
the extent such Equity Interests represent a portion of the exercise
price of those options, warrants or other convertible securities and
cash payments in lieu of the issuance of fractional shares in
connection with the exercise of options, warrants, or other
convertible securities;
(vii) upon the occurrence of a Change of Control and within
60 days after completion of the offer to repurchase Notes pursuant to
SECTION 4.15 hereof (including the purchase of all Notes tendered),
any purchase or redemption of Indebtedness of the Company subordinated
to the Notes that is required to be repurchased or redeemed pursuant
to the terms thereof as a result of such Change of Control, at a
purchase price not greater than 101% of the outstanding principal
amount thereof (plus accrued and unpaid interest);
(viii) Permitted Payments to Parent;
(ix) the payment of intercompany Indebtedness that is
expressly subordinated to the Notes or any Guarantee, the incurrence
of which is permitted under SECTION 4.09(C)(VI); PROVIDED, HOWEVER,
that no Default has occurred and is continuing or would otherwise
result therefrom; and
53
(x) the purchase, redemption, acquisition, cancellation or
other retirement for value of Equity Interests of the Company or any
Restricted Subsidiary to the extent necessary, in good faith judgment
of the Board of Directors of the Company, to prevent the loss or
secure the renewal or reinstatement of any license, permit or
eligibility held by the Company or any of its Restricted Subsidiaries
under any applicable law or governmental regulation or the policies of
any governmental authority or other regulatory body in an aggregate
amount, together with amounts permitted under clause (l) of the
definition of "Permitted Investments", not to exceed $3.0 million.
The amount of all Restricted Payments (other than cash) shall 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
Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair
market value of any non-cash Restricted Payment shall be determined by the Board
of Directors whose resolution with respect thereto shall be delivered to the
Trustee, such determination to be based upon an opinion or appraisal issued by
an accounting, appraisal or investment banking firm of national standing if such
fair market value exceeds $5.0 million.
SECTION 4.08 DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
RESTRICTED SUBSIDIARIES.
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(i) (x) pay dividends or make any other distributions to the
Company or any of its Restricted Subsidiaries on its Capital Interests
or (y) pay any Indebtedness owed to the Company or any of its
Restricted Subsidiaries;
(ii) make loans or advances to the Company or any of its
Subsidiaries; or
(iii) transfer any of its properties or assets to the
Company or any of its Restricted Subsidiaries.
(b) However, the foregoing restrictions will not apply to encumbrances
or restrictions existing under or by reason of:
(i) this Indenture, the Notes, any Guarantees and the
Collateral Agreements;
(ii) applicable law, rule or regulation or order;
(iii) any instrument governing Indebtedness or Capital
Interests of a Person acquired by the Company or any of its Restricted
Subsidiaries as in effect at the time of such acquisition (except to
the extent such Indebtedness or Capital Interest was incurred or
issued in connection with or in contemplation of such acquisition),
which encumbrance or restriction is not applicable to any Person, or
the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired; PROVIDED that, in the
case of Indebtedness, such Indebtedness was permitted by the terms of
this Indenture to be incurred;
(iv) customary non-assignment provisions in leases,
contracts, licenses and other agreements entered into in the ordinary
course of business and consistent with past practices;
54
(v) purchase money obligations and Capital Lease Obligations
not incurred in violation of this Indenture that impose restrictions
of the nature described in clause (a)(iii) above on the property
financed with such Indebtedness;
(vi) Permitted Refinancing Indebtedness; PROVIDED that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more materially restrictive, taken as
a whole, than those contained in the agreements governing the
Indebtedness being refinanced;
(vii) provisions limiting the disposition or distribution of
assets or property in joint venture agreements, partnership
agreements, limited liability company operating agreements, asset sale
agreements, sale-leaseback agreements, stock sale agreements and other
similar agreements entered into with the approval of the Board of
Directors of the Company, which limitation is applicable only to the
assets that are the subject of such agreements;
(viii) secured Indebtedness otherwise permitted to be
incurred pursuant to SECTION 4.13 hereof that limits the right of the
debtor to dispose of the assets securing such Indebtedness;
(ix) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the ordinary
course of business;
(x) in the case of clause (a)(iii) of this SECTION 4.08,
provisions arising or agreed to in the ordinary course of business,
not relating to any Indebtedness, and that do not, individually or in
the aggregate, detract from the value of property or assets of the
Company or any of its Restricted Subsidiaries in any manner material
to the Company or any of its Restricted Subsidiaries;
(xi) provisions in agreements or instruments that prohibit
the payment of dividends or the making of other distributions with
respect to any Capital Interests of a Person other than on a pro rata
basis;
(xii) restrictions in other Indebtedness incurred in
compliance with SECTION 4.09 hereof; PROVIDED that such restrictions,
taken as a whole, are, in the good faith judgment of the Company's
Board of Directors, no more materially restrictive with respect to
such encumbrances and restrictions than those contained in the
Revolver and this Indenture; and
(xiii) agreements governing existing Indebtedness and the
Credit Facilities as in effect on the Issue Date and any amendments,
restatements, modifications, renewals, increases, supplements,
refundings, replacements or refinancings of those agreements; PROVIDED
that the amendments, restatements, modifications, renewals, increases,
supplements, refundings, replacements or refinancings are not
materially more restrictive, taken as a whole, with respect to such
encumbrances and restrictions than those contained in those agreements
on the Issue Date.
SECTION 4.09 LIMITATION ON INCURRENCE OF INDEBTEDNESS.
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including
55
Acquired Debt); PROVIDED, HOWEVER, that the Company may incur Indebtedness
(including Acquired Debt) and any Restricted Subsidiary of the Company that is a
Guarantor or, upon such incurrence becomes a Guarantor, may incur Indebtedness
if, in each case, the Fixed Charge Coverage Ratio for the Company's most
recently ended four full fiscal quarters for which internal financial statements
are available immediately preceding the date on which such additional
Indebtedness is incurred would have been at least 2.5 to 1.0, determined on a
PRO FORMA basis (including a PRO FORMA application of the net proceeds
therefrom), as if the additional Indebtedness had been incurred, as the case may
be, at the beginning of such four quarter period.
(b) The Company will not, directly or indirectly, incur any
Indebtedness (nor will the Company permit any Subsidiary Guarantor to guarantee
such Indebtedness) that is contractually subordinated in right of payment to any
other Indebtedness of the Company unless such Indebtedness is also contractually
subordinated in right of payment to the Notes on substantially identical terms;
PROVIDED, HOWEVER, that no such Indebtedness of the Company shall be deemed to
be contractually subordinated in right of payment to any other Indebtedness of
the Company solely by virtue of being unsecured.
(c) The provisions of SECTION 4.09(A) hereof shall not apply to the
following items of Indebtedness (collectively, "Permitted Debt"):
(i) the incurrence by the Company (and the guarantee thereof
by the Guarantors) of Indebtedness and letters of credit (with letters
of credit being deemed to have a principal amount equal to the maximum
potential liability of the Company and its Subsidiaries thereunder)
under Credit Facilities; PROVIDED that the aggregate principal amount
of all revolving credit Indebtedness and letters of credit outstanding
under Credit Facilities after giving effect to such incurrence does
not exceed $26.0 million;
(ii) Indebtedness outstanding on the Issue Date and disclosed
in the Offering Circular;
(iii) the incurrence by the Company (and the Guarantee
thereof by the Guarantors) of Indebtedness represented by the Notes
and the Guarantees issued on the Issue Date in an aggregate principal
amount not to exceed $132.0 million;
(iv) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness (x) represented by Capital Lease
Obligations, mortgage financings or purchase money obligations, in
each case incurred for the purpose of financing all or any of the
purchase price or cost of construction, installation, design, or
improvement of real or personal property, plant or equipment used in
the business of the Company or such Restricted Subsidiary (whether
through the direct acquisition of such assets) or the acquisition of
Equity Interests of any Person owning such assets, and (y) represented
solely by mortgage financings incurred for any other purpose permitted
under this Indenture in an aggregate principal amount under clauses
(x) and (y) not to exceed $3.0 million at any time outstanding;
PROVIDED, that payments in respect of any such Capital Lease
Obligation shall be included in the amounts set forth under SECTION
4.19;
(v) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or
the net proceeds of which are used to renew, refund, refinance,
defease, discharge or replace Indebtedness permitted to be incurred by
this Indenture (other than Indebtedness permitted under clause (i));
56
(vi) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company
and any of its Restricted Subsidiaries; PROVIDED, HOWEVER, that (i)
such Indebtedness is expressly subordinated to the prior payment in
full in cash of all Obligations with respect to the Notes, in the case
of the Company, or, the Guarantee, in the case of the Guarantor, and
(ii)(A) any subsequent issuance or transfer of Equity Interests that
results in any such Indebtedness being held by a Person other than the
Company or a Subsidiary thereof and (B) any sale or other transfer of
any such Indebtedness to a Person, or the sale or other transfer of a
Lien in respect of such Indebtedness (other than Permitted Liens of
the type described in clause (i) or (xiv) of the definition thereof
that secure First Priority Claims that are permitted under this
Indenture or Permitted Liens, of the type described in clause (vii) of
the definition thereof, that is not either the Company or a Restricted
Subsidiary thereof shall 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
(vi);
(vii) the guarantee by the Company or any of the Guarantors
of Indebtedness of the Company or a Restricted Subsidiary of the
Company that was permitted to be incurred by another provision of this
SECTION 4.09;
(viii) Indebtedness of the Company or any of its Restricted
Subsidiaries in respect of bankers' acceptances or payment obligations
in connection with self-insurance or similar requirements (including
Indebtedness represented by letters of credit for the account of the
Company or such Restricted Subsidiary, as the case may be, opened to
provide security for any of the foregoing) incurred in the ordinary
course of business;
(ix) Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn
against insufficient funds in the ordinary course of business;
PROVIDED, HOWEVER, that such Indebtedness is extinguished within five
Business Days of incurrence;
(x) Indebtedness of the Company or any of its Restricted
Subsidiaries to the extent the net proceeds thereof are promptly used
to redeem the Notes in full or deposited to defease or discharge the
Notes, in each case, in accordance with this Indenture;
(xi) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate principal
amount (or accreted value, as applicable) at any time outstanding,
including all outstanding Permitted Refinancing Indebtedness incurred
to refund, refinance or replace any Indebtedness incurred pursuant to
this clause (xi), not to exceed $2.0 million.
For purposes of determining compliance with this SECTION 4.09, in the
event that an item of Indebtedness (of any portion thereof) meets the criteria
of more than one of the categories of Permitted Debt described in clauses (i)
through (xi) of this SECTION 4.09(C) or is entitled to be incurred pursuant to
SECTION 4.09(A) hereof, the Company, in its sole discretion, will be permitted
to divide and classify such item of Indebtedness (or any portion thereof) on the
date of occurrence, and at any time and from time to time may reclassify in any
manner that complies with this SECTION 4.09. Notwithstanding the foregoing,
Indebtedness under Credit Facilities outstanding on the Issue Date will
initially be deemed to have been incurred on such date in reliance on the
exception provided by clause (i) of the definition of Permitted Debt. Accrual of
interest, accretion or amortization of original issue discount, the payment of
interest on any Indebtedness in the form of additional Indebtedness with the
same terms, and the payment of dividends on Disqualified Stock in the form of
additional shares of the same class of Disqualified Stock
57
for purposes of this SECTION 4.09 shall not be deemed an incurrence of
Indebtedness; PROVIDED, in each such case, that the amount thereof is included
in Fixed Charges of the Company as accrued.
SECTION 4.10 ASSET SALES.
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(i) the Company (or the Restricted Subsidiary, as the case may
be) receives consideration at the time of such Asset Sale at least
equal to the fair market value (as determined in good faith by the
Board of Directors set forth in an Officer's Certificate delivered to
the Trustee) of the assets or Equity Interests issued or sold or
otherwise disposed of; and
(ii) at least 90% of the consideration therefor (which
consideration will not include any contingent payment obligations
related to such asset sale, including, without limitation, earnout
payments, purchase price adjustments, deferred purchase price payments
and bonuses and other forms of compensation to employees or
consultants) received by the Company or such Restricted Subsidiary is
in the form of cash, Cash Equivalents or a combination thereof;
PROVIDED that the amount of (x) any liabilities (as shown on the
Company's or such Restricted Subsidiary's most recent balance sheet)
of the Company or any Restricted Subsidiary (other than contingent
liabilities and liabilities that are by their terms subordinated to
the Notes or any Guarantee thereof) that are assumed by the transferee
of any such assets pursuant to a customary assumption agreement that
releases the Company or such Restricted Subsidiary from further
liability and (y) any securities, notes or other obligations received
by the Company or any such Restricted Subsidiary from such transferee
that are within 30 days of the receipt thereof converted by the
Company or such Restricted Subsidiary into cash (to the extent of the
cash received), shall be deemed to be cash for purposes of this
provision.
The following shall also be deemed to be cash for purposes of this
SECTION 4.10:
(1) cash held in escrow as security for any purchase price
settlement, for damages in respect of a breach of representations and
warranties or covenants or for payment of other contingent obligations
in connection with the Asset Sale; and
(2) any Marketable Securities valued based on the Average
Market Price of such Marketable Securities at the time of the
consummation of such Asset Sale.
(b) Within 179 days after the receipt of any Net Proceeds from an
Asset Sale, the Company or any of its Restricted Subsidiaries may apply such Net
Proceeds:
(i) to permanently reduce Indebtedness under the Credit
Facilities (and to correspondingly reduce commitments with respect
thereto) and repay any other Permitted Debt secured by a Lien on the
property or assets that is the subject of such Asset Sale, or
(ii) the making of a Capital Expenditure or the acquisition of
other tangible long-term assets, in each case, that are used or useful
in the then existing business of the Company and its Subsidiaries;
PROVIDED, that any such Capital Expenditure shall be included in the
amounts set forth in SECTION 4.19; PROVIDED, FURTHER, that,
notwithstanding the foregoing, if the Company or a Restricted
Subsidiary sells, transfers or otherwise
58
disposes of real property restaurant assets that the Company or such
Restricted Subsidiary previously acquired from a franchisee, only the
cash portion of the purchase price paid in connection with the initial
acquisition of such assets from such franchisee shall be included in
the amounts set forth under SECTION 4.19, and any reinvestment of the
Net Proceeds received by the Company or any of its Restricted
Subsidiaries in connection with the disposition of such assets shall
be excluded from the amounts set forth in SECTION 4.19.
Pending the final application of any such Net Proceeds, the Company may
temporarily reduce revolving credit borrowings or otherwise invest such Net
Proceeds in Cash Equivalents. Any Net Proceeds from Asset Sales that are not
applied or invested as provided in the first sentence of this SECTION 4.10(B)
will be deemed to constitute "Excess Proceeds." When the aggregate amount of
Excess Proceeds exceeds $1.0 million (the "Asset Sale Offer Trigger Date"), the
Company will be required to make an offer to all Holders of Notes and all
holders of other Indebtedness that is pari passu with the Notes containing
provisions similar to those set forth in this Indenture with respect to offers
to purchase or redeem with all such Excess Proceeds (an "Asset Sale Offer") to
purchase the maximum principal amount of Notes and such other Indebtedness that
may be purchased out of such Excess Proceeds, at an offer price in cash in an
amount equal to 100% of the principal amount thereof plus accrued and unpaid
interest thereon, to the date of purchase not less than 30 days nor more than 45
days following the Asset Sale Offer Trigger Date, in accordance with the
procedures set forth in this Indenture and such other Indebtedness. To the
extent that any Excess Proceeds remain after consummation of an Asset Sale
Offer, the Company may use such Excess Proceeds for any purpose not otherwise
prohibited by this Indenture. If the aggregate principal amount of Notes
surrendered by Holders thereof and other PARI PASSU Indebtedness described above
tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the
respective aggregate amount of the Notes and such other Indebtedness to be
purchased shall be determined on a pro rata basis (it being understood that the
Trustee shall not be making a determination as to any Indebtedness other than
the Notes) and the Trustee shall select the Notes to be purchased in such
aggregate amount on a pro rata basis. Upon completion of such offer to purchase,
the amount of Excess Proceeds shall be reset at zero.
(c) The Company shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with this SECTION
4.10, the Company will comply with the applicable securities laws and
regulations and will not be deemed to have breached its obligations of this
SECTION 4.10 by virtue thereof.
SECTION 4.11 EXCESS CASH FLOW OFFER.
(a) If the Company and its Subsidiaries have Excess Cash Flow (i) for
the period from the Issue Date to December 31, 2008 (the "Initial Period") and
(ii) subsequent to the Initial Period, for any fiscal year commencing with the
fiscal year ending on or about December 31, 2009, each Holder will have the
right to require the Company to repurchase all or any part of that Holder's
Notes (in minimum amounts of $2,000 and integral multiples of $1,000) at a
purchase price in cash equal to 102% of the principal amount of the Notes
repurchased, plus any accrued and unpaid interest, to the date of purchase
(subject to the rights of Holders of Notes on the relevant record date to
receive interest due on the relevant interest payment date that is on or prior
to the date of repurchase), with 75% of Excess Cash Flow of the Company and its
Subsidiaries on a consolidated basis for such period (less the amount of any
open market purchases and any redemptions of Notes pursuant to this Indenture
made during such period).
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(b) Within 90 days after the end of any such fiscal year, the Company
will send a notice to each Holder and the Trustee describing the offer to
repurchase Notes with Excess Cash Flow (the "Excess Cash Flow Offer") and
offering to purchase Notes on the date specified in the notice, which date will
be no earlier than 30 days and no later than 60 days from the date such notice
is sent. The Company will be required to purchase Notes validly tendered in
response to an Excess Cash Flow Offer in accordance with the procedures set
forth in this Indenture and such notice. The Company will not be required to
make an Excess Cash Flow Offer if the Excess Cash Flow for such relevant fiscal
year is less than $1.0 million. With respect to each Excess Cash Flow Offer, the
Company shall be entitled to reduce the applicable amount of the Excess Cash
Flow Offer (the "Excess Cash Flow Offer Amount") by the aggregate repurchase
price of any Notes repurchased by the Company in the relevant fiscal year in the
open market or redeemed by the Company pursuant to this Indenture (to the extent
such amount has not previously reduced any Excess Cash Flow Offer Amount). If
the aggregate principal amount of Notes plus (i) the two percent premium
thereon, and (ii) accrued and unpaid interest thereon, tendered pursuant to an
Excess Cash Flow Offer exceeds the Excess Cash Flow Offer Amount, the Trustee
will select the Notes to be accepted for purchase on a pro rata basis. If the
aggregate repurchase price of Notes tendered plus (i) the two percent premium
thereon, and (ii) accrued and unpaid interest thereon, pursuant to an Excess
Cash Flow Offer is less than the applicable Excess Cash Flow Offer Amount, the
Company may, subject to the other provisions of this Indenture, use any such
Excess Cash Flow for any purpose not otherwise prohibited by this Indenture.
(c) The Company will comply with the requirements of Rule 14a-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent those laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Excess Cash Flow Offer. To the extent that
the provisions of any securities laws or regulations conflict with these
provisions of this Indenture, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached their
obligations under these provisions of this Indenture by virtue of such
compliance.
SECTION 4.12 TRANSACTIONS WITH AFFILIATES.
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an "Affiliate Transaction"), unless:
(i) such Affiliate Transaction is on terms that are no less
favorable to the Company or the relevant Restricted Subsidiary than
those that would have been obtained in a comparable transaction by the
Company or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company delivers to the Trustee (a) with respect to any
Affiliate Transaction or series of related Affiliate Transactions, a
resolution of the Board of Directors set forth in an Officer's
Certificate certifying that such Affiliate Transaction complies with
clause (i) above and that such Affiliate Transaction has either been
approved by a majority of the disinterested members of the Board of
Directors or has been approved in an opinion issued by an accounting,
appraisal or investment banking firm of national standing as being
fair to the Holders from a financial point of view and (b) with
respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $2.5
million, an opinion as to the fairness to the Holders of such
Affiliate Transaction from a
60
financial point of view issued by an accounting, appraisal or
investment banking firm of national standing.
(b) Notwithstanding the foregoing, the following items shall not be
deemed to be Affiliate Transactions:
(i) any employment agreement or arrangements incentive
compensation plan, benefit arrangements or plan, severance or expense
reimbursement arrangement entered into by the Company or any of its
Restricted Subsidiaries in the ordinary course of business of the
Company or such Restricted Subsidiary;
(ii) transactions between or among the Company and/or its
Restricted Subsidiaries;
(iii) payment of reasonable directors fees to directors of the
Company or any Restricted Subsidiary of the Company and other
reasonable fees, compensation, benefits and indemnities paid or
entered into with directors, officers and employees of the Company or
any Restricted Subsidiary of the Company;
(iv) any issuance of Equity Interests and the granting or
performance of registration rights in respect of any Equity Interests,
which rights have been approved by the Board of Directors of the
Company;
(v) any agreement (other than the Management Agreement) in effect
on the date of this Indenture or any amendment thereto or transaction
contemplated thereby (and any replacement or amendment of any such
agreement so long as any such amendment or replacement thereof is not
materially less favorable to the Holders than the original agreement
in effect on the date of this Indenture);
(vi) Restricted Payments that are permitted by the provisions of
this Indenture described under SECTION 4.07;
(vii) the payment of all or any portion of the management fees
and reimbursement of out-of-pocket expenses to the extent provided for
in the Management Agreement so long as, in the case of management
fees, (A) no Default or Event of Default shall have occurred and be
continuing or would exist after giving effect thereto, and (B) the
Consolidated Leverage Ratio would be, as of the date of such payment,
less than 4.5 to 1.0, such Consolidated Leverage Ratio to be computed
on a PRO FORMA basis after giving effect to all such payments of
management fees made or proposed to be made since the end of the most
recent fiscal quarter with respect to which internal financial
statements are available, as well as any Indebtedness incurred in
connection therewith, it being understood that payments made in
compliance with this clause (B) may include partial payments and
payment of past due amounts; PROVIDED HOWEVER, that only $2.0 million
of accrued management fees not paid in prior periods may be paid in
cash over a trailing four quarter period in addition to management
fees permitted under the Consolidated Leverage Ratio test and that all
management fees, accrued and current, shall be subject to a
subordination agreement under which payment thereof is expressly
subordinated to the Notes; and
(viii) repurchases of Notes if repurchased on the same terms as
offered to non-affiliates.
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SECTION 4.13 LIENS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien of any kind against or upon any property or asset now owned or
hereafter acquired, or any income or profits therefrom, except Permitted Liens.
SECTION 4.14 CORPORATE EXISTENCE.
Subject to ARTICLE 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Restricted Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or any
such Restricted Subsidiary and (ii) the material rights (charter and statutory),
licenses and franchises of the Company and its Restricted Subsidiaries; PROVIDED
that the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its
Restricted Subsidiaries, if the Company in good faith 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.
SECTION 4.15 OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, each Holder of Notes
will have the right to require the Company to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of such Holder's Notes pursuant to
the offer described below (the "Change of Control Offer") at an offer price in
cash equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest thereon to the date of purchase (the "Change of Control
Payment"). Within 30 days following any Change of Control, the Company will mail
a notice to each Holder stating:
(1) that a Change of Control Offer is being made pursuant to
this SECTION 4.15 and, to the extent lawful, that all Notes properly
tendered pursuant to such Change of Control Offer will be accepted for
payment by the Company;
(2) the purchase price and the purchase date, which will be
no earlier than 30 days nor later than 60 days from the date such
notice is mailed (the "Change of Control Payment Date");
(3) that any Note not properly tendered or accepted for
payment will remain outstanding and continue to accrue interest in
accordance with the terms hereof;
(4) that unless the Company defaults in the payment of the
Change of Control Payment, all Notes accepted for payment pursuant to
the Change of Control Offer will cease to accrue interest on the
Change of Control Payment Date;
(5) that Holders electing to have any Notes purchased
pursuant to a Change of Control Offer will be required to surrender
such Notes, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of such Notes completed, or transfer by book
entry transfer to the Company or to the paying agent specified in the
notice at the address specified in the notice prior to the close of
business at least three Business Days preceding the Change of Control
Payment Date;
(6) that Holders shall be entitled to withdraw their
tendered Notes and their election to require the Company to purchase
such Notes; PROVIDED that the paying agent receives,
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not later than the close of business on the 30th day following the
date of the Change of Control notice, a facsimile transmission or
letter setting forth the name of the Holder of the Notes, the
principal amount of Notes tendered for purchase, and a statement that
such Holder is withdrawing its tendered Notes and its election to have
such Notes purchased;
(7) that if the Company is redeeming less than all of the
Notes, the Holders of the remaining Notes will be issued new Notes and
such new Notes will be equal in principal amount to the unpurchased
portion of the Notes surrendered. The unpurchased portion of the Notes
shall be equal to $1,000 or an integral multiple thereof or
transferred by book-entry transfer; and
(8) the other instructions, as determined by the Company,
consistent with this SECTION 4.15, that a Holder must follow.
The notice, if mailed in a manner herein provided, shall be conclusively
presumed to have been given, whether or not the Holder receives such notice. If
(a) the notice is mailed in a manner herein provided and (b) any Holder fails to
receive such notice or a Holder receives such notice but it is defective, such
Holder's failure to receive such notice or such defect shall not affect the
validity of the proceedings for the purchase of the Notes as to all other
Holders that properly received such notice without defect.
(b) The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of the Notes as a result of a Change of Control. To the extent that
the provisions of any securities laws or regulations conflict with the Change of
Control provisions of the Indenture, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations under the Change of Control provisions of this Indenture by virtue
of such compliance.
(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 and not withdrawn pursuant to the Change of Control
Offer,
(2) deposit with the Paying Agent an amount equal to the
Change of Control Payment in respect of all Notes or portions thereof
so tendered, and
(3) deliver or cause to be delivered to the Trustee the
Notes so accepted and not withdrawn together with an Officer's
Certificate stating the aggregate principal amount of Notes or
portions thereof being purchased by the Company. The Paying Agent will
promptly mail to each Holder of Notes so tendered the Change of
Control Payment for such Notes, and the Trustee will promptly
authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any; PROVIDED that each such new
Note will be in a principal amount of $1,000 or an integral multiple
thereof. 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.
(d) The Company will not be required to make a Change of Control Offer
upon a Change of Control if (1) a third party makes the Change of Control Offer
in the manner, at the times and otherwise in compliance with the requirements
set forth in this Indenture applicable to a Change of Control Offer made by the
Company and purchases all Notes validly tendered and not withdrawn under
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such Change of Control Offer, (2) notice of redemption has been given pursuant
to this Indenture as described above under SECTION 3.03 unless and until there
is a default in payment of the applicable redemption price, or (3) if, in
connection with or in contemplation of any Change of Control, it or a third
party has made an offer to purchase (an "Alternate Offer") any and all Notes
validly tendered at a cash price equal to or higher than the Change of Control
Payment and has purchased all Notes properly tendered and not withdrawn in
accordance with the terms of such Alternate Offer. A Change of Control Offer may
be made in advance of a Change of Control, conditional upon such Change of
Control, if a definitive agreement is in place for the Change of Control at the
time of making the Change of Control Offer. Notes repurchased pursuant to a
Change of Control Offer will be retired and cancelled.
SECTION 4.16 SALE AND LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction; PROVIDED that
the Company may enter into a sale and leaseback transaction if:
(a) the Company could have (x) incurred Indebtedness in an amount
equal to the Attributable Debt relating to such sale and leaseback transaction
pursuant to the Fixed Charge Coverage Ratio test set forth in SECTION 4.09(A)
and (y) incurred a Lien to secure such Indebtedness pursuant to SECTION 4.13;
(b) the gross cash proceeds of such sale and leaseback transaction are
at least equal to the fair market value (as determined in good faith by the
Board of Directors and set forth in an Officer's Certificate delivered to the
Trustee) of the property that is the subject of such sale and leaseback
transaction; and
(c) the transfer of assets in such sale and leaseback transaction is
permitted by, and the Company applies the proceeds of such transaction in
compliance with SECTION 4.10;
SECTION 4.17 ISSUANCES AND SALES OF EQUITY INTERESTS IN SUBSIDIARIES.
(a) Parent shall at all times own 100% of the Equity Interests of the
Company. The Company will not, and will not permit any of its Restricted
Subsidiaries to, transfer, convey, sell, lease or otherwise dispose of any
Equity Interests in any Wholly Owned Restricted Subsidiary of the Company to any
Person (other than the Company or a Wholly Owned Subsidiary of the Company),
unless:
(b) (i) such transfer, conveyance, sale, lease or other disposition is
of all the Equity Interests in such Wholly Owned Restricted Subsidiary;
(ii) the net cash proceeds from such transfer, conveyance, sale,
lease or other disposition are applied in accordance with the covenant
described in SECTION 4.10;
(iii) immediately after giving effect to such issuance or sale,
such Subsidiary would no longer constitute a Subsidiary and any
Investment in such Person remaining after giving effect to such
issuance or sale would have been permitted to be made in SECTION 4.07;
and
(iv) the transfer, conveyance, sale, lease or other disposition,
is of shares of its Capital Interests constituting directors
qualifying shares or is necessary to obtain or maintain any
governmental license or other right that is necessary or useful to the
conduct of the then existing business of the Company and its
Subsidiaries.
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(c) The Company will not permit any Wholly Owned Restricted Subsidiary
of the Company to issue, transfer or otherwise dispose of any of its Equity
Interests (other than, if necessary, the issuance, transfer or other disposition
of shares of its Capital Interests constituting directors' qualifying shares or
to the extent required to obtain or maintain any governmental license or other
right that is necessary or useful to the conduct of such Subsidiaries' business)
to any Person other than to the Company or a Wholly Owned Restricted Subsidiary
of the Company.
SECTION 4.18 BUSINESS ACTIVITIES.
The Company shall not, and the Company shall not permit any of its
Restricted Subsidiaries to, engage in any business other than the businesses in
which the Company and its Restricted Subsidiaries are engaged on the Issue Date.
SECTION 4.19 LIMITATION ON CAPITAL EXPENDITURES.
The Company will not, and the Company will not permit any of its
Restricted Subsidiaries to, make Capital Expenditures (including Capital Lease
Obligations) in excess of:
(a) $19.0 million in the aggregate in the fiscal year ending on or
about December 31, 2008;
(b) $14.5 million plus the amount by which Consolidated Cash Flow for
the year ending on or about December 31, 2008 exceeds $50.0 million, in the
aggregate in the fiscal year ending on or about December 31, 2009;
(c) $16.0 million plus the amount by which Consolidated Cash Flow for
the year ending on or about December 31, 2009 exceeds $52.5 million, in the
aggregate in the fiscal year ending on or about December 31, 2010;
(d) $17.5 million plus the amount by which Consolidated Cash Flow for
the year ending on or about December 31, 2010 exceeds $55.0 million, in the
aggregate in any fiscal year ending on or about December 31, 2011; and
(e) $19.0 million plus the amount by which Consolidated Cash Flow for
the year ending on or about December 31, 2011 exceeds $57.5 million, in the
aggregate in any fiscal year ending on or about December 31, 2012;
PROVIDED, that, (x) $1.5 million of unused amounts may be carried over from the
preceding fiscal year for a period of one year, (y) any Net Proceeds received by
the Company and its Restricted Subsidiaries from the Generator Sale during any
period set forth in clauses (a) through (e) above shall be reinvested as Capital
Expenditures in the same period as such net proceeds are received, and (z) with
respect to any sale, transfer or other disposition of real property restaurant
assets that the Company or any Restricted Subsidiary previously acquired from a
franchisee, only the cash portion of the purchase price paid in connection with
the initial acquisition of such assets from such franchisee shall be included in
the amounts set forth in clauses (a) through (e) above during any period in
which such purchase price is paid, and any reinvestment of the Net Proceeds
received by the Company or any of its Restricted Subsidiaries in connection with
the disposition of such assets shall be excluded from the amounts set forth in
clauses (a) through (e) above.
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SECTION 4.20 PAYMENTS FOR CONSENT.
Neither the Company nor any of its Subsidiaries will, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Notes unless such consideration is offered to be paid or is
paid to all Holders of the Notes that consent, waive or agree to amend in the
time frame set forth in the solicitation documents relating to such consent,
waiver or amendment.
SECTION 4.21 SUBSIDIARY GUARANTEES.
If the Company or any of its Restricted Subsidiaries shall acquire or
create another Restricted Subsidiary after the Issue Date, other than a Foreign
Subsidiary, then the Company shall cause such newly acquired or created
Restricted Subsidiary to become a Guarantor and
(i) execute a supplemental indenture, in accordance with the
terms of this Indenture, pursuant to which such Restricted Subsidiary
shall unconditionally Guarantee, on a senior secured basis, all of the
Company's Obligations under the Notes and this Indenture on the terms
set forth in this Indenture;
(ii) execute and deliver to the Collateral Agent such amendments
or supplements to the Collateral Agreements as the Collateral Agent
deems necessary in order to grant to the Collateral Agent, for the
benefit of the Holders, a perfected second-priority security interest
in the Equity Interests of such Restricted Subsidiary, subject to (a)
nonconsensual Permitted Liens arising by operation of law and entitled
by operation of law to priority over the Liens securing the Notes and
the Note Guarantees and (b) any prior lien permitted to exist pursuant
to the terms of the Intercreditor Agreement and clause (i) of the
definition of Permitted Liens, which are owned by the Company or a
Restricted Subsidiary of the Company and are required to be pledged
pursuant to the Collateral Agreements;
(iii) take such actions as are necessary to grant to the
Collateral Agent for the benefit of the Holders a perfected
second-priority security interest in the assets, other than Excluded
Assets, of such Restricted Subsidiary, subject to Permitted Liens,
including the filing of Uniform Commercial Code financing statements
in such jurisdictions as may be required by the Collateral Agreements
or by law or as may be reasonably requested by the Collateral Agent;
(iv) take such further action and execute and deliver such other
documents specified in this Indenture or the Collateral Agreements or
otherwise reasonably requested by the Trustee or Collateral Agent to
give effect to the foregoing; and
(v) deliver to the Trustee an opinion of counsel and officer's
certificate that such supplemental indenture and any other documents
required to be delivered have been duly authorized, executed and
delivered by such Restricted Subsidiary and constitutes a legal,
valid, binding and enforceable obligation of such Restricted
Subsidiary and such other reasonable and customary opinions regarding
the perfection of such Liens in the Collateral of such Restricted
Subsidiary as provided for in this Indenture or the Collateral
Agreements.
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SECTION 4.22 IMPAIRMENT OF SECURITY INTEREST.
(a) Neither the Company nor any of its Restricted Subsidiaries will
take or knowingly omit to take any action which would materially impair the
Liens in favor of the Collateral Agent, on behalf of itself, the Trustee and the
Holders, with respect to any material portion of the Collateral. Neither the
Company nor any Guarantor shall grant to any Person (other than the Collateral
Agent), or permit any Person (other than the Collateral Agent) to retain, any
interest whatsoever in the Collateral other than Permitted Liens. Neither the
Company nor any of its Restricted Subsidiaries will enter into any agreement
that requires the proceeds received from any sale of Collateral to be applied to
repay, redeem, defease or otherwise acquire or retire any Indebtedness of any
Person, other than as permitted by the Indenture, the Notes and the Collateral
Agreements, subject to the terms of the Intercreditor Agreement.
(b) The Company shall, and shall cause each applicable Guarantor to,
at their sole cost and expense, (i) execute and deliver all such agreements and
instruments as the Collateral Agent shall reasonably request to more fully or
accurately describe the property intended to be Collateral or the obligations
intended to be secured by the Collateral Agreements and (ii) file any such
notice filings or other agreements or instruments as may be reasonably necessary
under applicable law to perfect (and maintain the perfection and priority) the
Liens created by the Collateral Agreements, subject to Permitted Liens, at such
times and at such places as the Collateral Agent may reasonably request, in each
case subject to the terms of the Collateral Agreements.
SECTION 4.23 REAL ESTATE MORTGAGES AND FILINGS.
With respect to any (a) Issue Date Real Property or (b) any fee
interest in any real property that is acquired by the Company or any Domestic
Restricted Subsidiary after the Issue Date which has (A) a purchase price or (B)
fair market value, greater than $500,000 (such real property referred to in
clauses (A) and (B), individually and collectively, the "PREMISES"), within 90
days of the Issue Date or the acquisition, as applicable, the Company shall
deliver to the Collateral Agent:
(a) as mortgagee, fully executed counterparts of Mortgages, duly
executed by the Company or the applicable any Domestic Restricted Subsidiary,
together with evidence of the completion (or satisfactory arrangements for the
completion), of all recordings and filings of such Mortgage as may be necessary
to create a valid, perfected Lien, subject to Permitted Liens, against the
Premises purported to be covered thereby;
(b) to the extent practicable, mortgagee's title insurance policies in
favor of the Collateral Agent in an amount equal to 100% of the fair market
value of the Premises purported to be covered by the related Mortgage, insuring
that the interests created by the Mortgage constitute valid Liens thereon free
and clear of all Liens, defects and encumbrances other than Permitted Liens and
a standard survey exception, and such policies shall also include, to the extent
available, other customary endorsements and shall be accompanied by evidence of
the payment in full of all premiums thereon;
(c) to the extent that a standard survey exception is not contained in
the mortgagee's title policy delivered in accordance with clause (b) above, with
respect to each of the covered Premises, the most recent survey of such
Premises, together with either (i) an updated survey certification in favor of
the Trustee and the Collateral Agent from the applicable surveyor stating that,
based on a visual inspection of the property and the knowledge of the surveyor,
there has been no change in the facts depicted in the survey or (ii) an
affidavit from the Company's or the applicable Domestic Restricted Subsidiary
stating that there has been no change, other than, in each case, changes that do
not materially adversely affect the use by the Company or the applicable
Domestic Restricted Subsidiary of such
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Premises for the Company's or the applicable Domestic Restricted Subsidiary's
business as so conducted, or intended to be conducted, at such Premises; and
(d) to the extent obtained by the First Priority Agent, an opinion
from local counsel in each jurisdiction where a Premises is located in form and
substance reasonably satisfactory to the Collateral Agent and covering such
matters as Collateral Agent may reasonably request, including without
limitation, the enforceability of the relevant Mortgages.
SECTION 4.24 LANDLORD WAIVERS.
Each of the Company and its Domestic Restricted Subsidiaries that is a
lessee of, or becomes a lessee of, real property material to the business, is,
and will be, required to use commercially reasonable efforts to deliver to the
Collateral Agent a landlord waiver to the extent a landlord waiver is obtained
for such real property by the First Priority Agent, substantially in the form of
any landlord waiver agreed by the First Priority Agent, executed by the lessor
of such real property; PROVIDED that in the case where such lease is a lease in
existence on the Issue Date, the Company or its Domestic Restricted Subsidiary
that is the lessee thereunder shall have 90 days from the Issue Date to use
commercially reasonable efforts to satisfy such requirement to the extent a
landlord waiver is obtained for such real property by the First Priority Agent.
ARTICLE 5
SUCCESSORS
SECTION 5.01 MERGER, CONSOLIDATION OR SALE OF ALL OR SUBSTANTIALLY ALL
ASSETS.
(a) The Company may not consolidate or merge with or into (whether or
not the Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions, to another corporation, Person or
entity unless such transaction constitutes a Change of Control and:
(i) (A) the Company is the surviving corporation or (B) the
Person formed by or surviving any such consolidation or merger (if
other than the Company) or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made is a
corporation, limited liability company or limited partnership
organized or existing under the laws of the United States, any state
thereof or the District of Columbia; provided that, in case of a
limited liability company or a partnership, a co-obligor of the Notes
is a corporation;
(ii) the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company) or the entity or
Person to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made assumes all the obligations of
the Company under the Collateral Agreements, the Notes and the
Indenture pursuant to a supplemental indenture in a form reasonably
satisfactory to the Trustee;
(iii) immediately after giving effect to such transaction no
Default or Event of Default exists; and
(iv) except in the case of a consolidation, amalgamation or
merger with or into or a sale, assignment, transfer, conveyance or
other disposition of all or substantially all of the property and
assets of the Company and any of its Subsidiaries to a Wholly Owned
Subsidiary of the Company, (A) the Company or the entity or Person
formed by or surviving
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any such consolidation or merger (if other than the Company), or to
which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made, will at the time of such transaction
and after giving pro forma effect thereto as if such transaction had
occurred at the beginning of the applicable four-quarter period, be
permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test set forth in SECTION 4.09(A)
and (B) the Consolidated Leverage Ratio of the Company or the entity
or Person formed by or surviving any such consolidation or merger (if
other than the Company), as the case may be, is at least 0.5 times
lower on a pro forma basis than the Consolidated Leverage Ratio of the
Company immediately preceding the transaction.
(b) No Guarantor may consolidate or merge with or into (whether or not
the Company or such Guarantor is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions, to another
corporation, Person or entity.
(c) This Section 5.01 will not apply to a merger of the Company or a
Guarantor with an Affiliate solely for the purpose, and with the effect, of
reincorporating the Company or such a Guarantor, as the case may be, in another
jurisdiction of the United States. In addition, nothing in this SECTION 5.01
will prohibit any Restricted Subsidiary from consolidating or amalgamating with,
merging with or into or conveying, transferring or leasing, in one transaction
or a series of transactions, all or substantially all of its assets to Parent,
the Company or another Restricted Subsidiary.
SECTION 5.02 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in accordance with SECTION 5.01 hereof, the successor corporation
formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the Company shall refer instead to the
successor corporation and not to the Company), and may exercise every right and
power of the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; PROVIDED that the
predecessor Company shall not be relieved from the obligation to pay the
principal of and interest on the Notes except in the case of a sale, assignment,
transfer, conveyance or other disposition of all of the Company's assets that
meets the requirements of SECTION 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT.
(a) Each of the following shall be an "Event of Default" for purposes
of this Indenture:
(i) default for 30 days in the payment when due of interest on
the Notes;
(ii) default in payment when due of the principal of or premium,
if any, on the Notes;
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(iii) a default by the Company or any Guarantor in the observance
or performance of any other covenant or agreement contained in this
Indenture which default continues for a period of 30 days after the
Company or such Guarantor receives written notice specifying the
default (and demanding that such default be remedied and stating that
such notice is a "Notice of 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 SECTION 5.01 which
will constitute an Event of Default with such notice requirement but
without such passage of time requirement);
(iv) the failure to pay at final maturity (giving effect to any
applicable grace periods and any extensions thereof) the principal
amount of any Indebtedness of the Company or any Restricted Subsidiary
of the Company or the acceleration of the final stated maturity of any
such Indebtedness, if the aggregate principal amount of such
Indebtedness, together with the principal amount of any other such
Indebtedness in default for failure to pay principal at final maturity
or which has been accelerated, aggregates $2.0 million or more at any
time and such failure shall not have been cured or waived within 20
days thereof;
(v) failure by the Company or any of its Subsidiaries to pay
final judgments (to the extent such judgments are not paid or covered
by an insurance carrier or pursuant to which the Company is not
indemnified by a third party who has agreed to honor such obligation)
aggregating in excess of $2.0 million, which judgments are not paid,
discharged or stayed for a period of 60 days after such judgments have
become final and non-appealable;
(vi) Parent, the Company or any Significant Subsidiary of the
Company, pursuant to or within the meaning of any Bankruptcy Law:
(1) commences a voluntary case,
(2) consents to the entry of an order for relief against it
in an involuntary case,
(3) consents to the appointment of a Custodian of it or for
all or substantially all of its property, makes a general assignment
for the benefit of its creditors, or
(4) generally is not paying its debts as they become due; or
(vii) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(1) is for relief against Parent, the Company or any
Restricted Subsidiary of the Company that is a Significant Subsidiary
in an involuntary case,
(2) appoints a Custodian of Parent, the Company or any
Restricted Subsidiary of the Company that is a Significant Subsidiary
or for all or substantially all of the property of Parent or the
Company or any Restricted Subsidiary of the Company that is a
Significant Subsidiary of the Company, or
(3) orders the liquidation of Parent, the Company or any
Restricted Subsidiary of the Company that is a Significant Subsidiary,
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and the order or decree remains unstayed and in effect for 60 days;
(viii) except as permitted by this Indenture, any Guarantee shall
be held in any judicial proceeding to be unenforceable or shall cease
for any reason to be in full force and effect or any Guarantor, or any
Person acting on behalf of any Guarantor, shall deny or disaffirm its
obligation under its Guarantee;
(ix) failure by the Company to comply with any material agreement
or material covenant in any of the Collateral Agreements, and such
failure shall continue for a period of 30 days after the Company
receives a Notice of Default from the Trustee, the Collateral Agent or
the Holders of at least 25% in principal amount of the then
outstanding Notes voting as a single class; and
(x) except by reason of the termination of the Indenture or the
applicable Collateral Agreement in accordance with its terms and
subject to the Intercreditor Agreement, any of the Collateral
Agreements at any time for any reason ceases to be in full force and
effect, or is declared null and void, or shall cease to be effective
to give the Collateral Agent, the Liens with the priority purported to
be created thereby subject to no other Liens, other than Permitted
Liens, in each case for a period of 30 days after the Company receives
a Notice of Default from the Trustee, the Collateral Agent or the
holders of at least 25% in principal amount of the then outstanding
Notes voting as a single class; PROVIDED that it shall not be an Event
of Default under this paragraph (ix) if the Collateral Agent shall not
have, or shall cease to have, a valid, enforceable and perfected
second priority security interest in or Lien on any Collateral
purported to be covered by the Collateral Agreements that is not
material to the operations or the businesses of the Company, taken as
a whole.
(b) The Company shall deliver to the Trustee annually a statement
regarding compliance with this Indenture, and the Company shall, upon becoming
aware of any Default or Event of Default, deliver to the Trustee a statement
specifying such Default or Event of Default.
SECTION 6.02 ACCELERATION.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes shall
notify the Company in writing, specifying the Event of Default, demanding that
the Default be remedied and stating that such notice is a "Notice of Default,"
following which such Holders may declare all the Notes to be due and payable
immediately. Upon such declaration of acceleration pursuant to a Notice of
Default, the aggregate principal of and accrued and unpaid interest on the
outstanding Notes shall become due and payable without further action or notice;
PROVIDED, HOWEVER, that in the event of a declaration of acceleration because an
Event of Default set forth in SECTION 6.01(A)(IV) has occurred and is
continuing, such declaration of acceleration shall be automatically rescinded
and annulled if the failure to pay or acceleration triggering such Event of
Default pursuant to SECTION 6.01(A)(IV) shall be remedied or cured or waived by
the holders of the relevant Indebtedness within 60 days after the declaration of
acceleration with respect thereto. Notwithstanding the foregoing, in the case of
an Event of Default arising under SECTION 6.01(A)(VI) or SECTION 6.01(A)(VII),
with respect to the Company, any Significant Subsidiary or any group of
Subsidiaries that, taken together, would constitute a Significant Subsidiary,
all outstanding Notes will become due and payable without further action or
notice. Holders of the Notes may not enforce this Indenture or the Notes except
as provided in this Indenture. Subject to certain limitations, Holders of a
majority in principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of the Notes notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of principal or
interest) if it determines that
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withholding notice is in their interest. Holders of the Notes may not enforce
this Indenture or the Notes except as provided in this Indenture and under the
Trust Indenture Act.
SECTION 6.03 OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium, if any, and
interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04 WAIVER OF PAST DEFAULTS.
The Holders of a majority in aggregate principal amount of the Notes
then outstanding by notice to the Trustee may on behalf of the Holders of all of
the Notes waive, rescind or cancel any declaration of an existing or past
Default or Event of Default and its consequences under this Indenture except a
continuing Default or Event of Default in the payment of interest on, or the
principal of, the Notes (other than nonpayment of principal or interest that has
become due solely because of acceleration). Upon any such waiver, such Default
shall cease to exist, and any Event of Default arising therefrom shall be deemed
to have been cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereon.
SECTION 6.05 CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then total outstanding
Notes may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or power conferred on
the Trustee. The Trustee, however, may refuse to follow any direction that
conflicts with law or this Indenture or that the Trustee determines is unduly
prejudicial to the rights of other Holders of a Note or that would involve the
Trustee in personal liability.
SECTION 6.06 LIMITATION ON SUITS.
Subject to SECTION 6.07 hereof, no Holder of a Note may pursue any
remedy with respect to this Indenture or the Notes unless:
(1) such Holder has previously given the Trustee notice that
an Event of Default is continuing;
(2) Holders of at least 30% in principal amount of the total
outstanding Notes have requested the Trustee to pursue the remedy;
(3) Holders of the Notes have offered the Trustee reasonable
security or indemnity against any loss, liability or expense;
(4) the Trustee has not complied with such request within 60
days after the receipt thereof and the offer of security or indemnity;
and
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(5) Holders of a majority in principal amount of the total
outstanding Notes have not given the Trustee a direction inconsistent
with such request within such 60-day period.
A Holder of a Note may not use this Indenture to prejudice the rights
of another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
SECTION 6.07 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, premium, if any, and interest
on the Note, on or after the respective due dates expressed in the Note, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in SECTION 6.01(A)(VI)(1) or (2)
hereof occurs and is continuing, the Trustee is authorized to recover judgment
in its own name and as trustee of an express trust against the Company for the
whole amount of principal of, premium, if any, and interest remaining unpaid on
the Notes and interest on overdue principal and, to the extent lawful, interest
and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
SECTION 6.09 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceedings, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding has been instituted.
SECTION 6.10 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Notes in SECTION 2.07 hereof, no right
or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 6.11 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
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SECTION 6.12 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes including the Guarantors), its creditors or
its property and shall be entitled and empowered to participate as a member in
any official committee of creditors appointed in such matter and to collect,
receive and distribute any money or other property payable or deliverable on any
such claims and any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under SECTION 7.07 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under SECTION 7.07 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.13 PRIORITIES.
If the Trustee collects any money pursuant to this ARTICLE 6, it shall
pay out the money in the following order:
(i) to the Trustee, its agents and attorneys for amounts due
under SECTION 7.07 hereof, including payment of all compensation,
expenses and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;
(ii) to Holders of Notes for amounts due and unpaid on the Notes
for principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, if any, and interest,
respectively; and
(iii) to the Company or to such party as a court of competent
jurisdiction shall direct including a Guarantor, if applicable.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this SECTION 6.13.
SECTION 6.14 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, 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
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litigant. This SECTION 6.14 does not apply to a suit by the Trustee, a suit by a
Holder of a Note pursuant to SECTION 6.07 hereof, or a suit by Holders of more
than 10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, each of the
Trustee and the Collateral Agent shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in its
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, 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 examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this SECTION 7.01;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved in a
court of competent jurisdiction that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to SECTION 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b) and (c) of this SECTION 7.01.
(e) Each of the Trustee and the Collateral Agent shall be under no
obligation to exercise any of its rights or powers under this Indenture or the
Collateral Agreements at the request or direction of any of the Holders of the
Notes unless the Holders have offered to the Trustee or the
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Collateral Agent, as the case may be, indemnity satisfactory to the Trustee or
Collateral Agent, as the case may be, or security against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds or assets except to
the extent required by law.
SECTION 7.02 RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney
at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation.
(b) Before the Trustee acts or refrains from acting, it may require an
Officer's Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officer's Certificate or Opinion of Counsel. The Trustee may consult with
counsel of its selection and the written advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection from
liability in respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent (other than an
agent who is an employee of the Trustee) or attorney appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) None of the provisions of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise to incur any liability, financial
or otherwise, 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 indemnity satisfactory to it against
such risk or liability is not assured to it.
(g) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
Default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Notes and this Indenture
(h) 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.
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(i) The rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and each agent, custodian and other Person employed to act hereunder.
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE.
Each of the Trustee and the Collateral Agent in its individual or any
other capacity may become the owner or pledgee of Notes and may otherwise deal
with the Company or any Affiliate of the Company with the same rights it would
have if it were not Trustee or the Collateral Agent, as the case may be.
However, in the event that the Trustee or the Collateral Agent acquires any
conflicting interest it shall eliminate such conflict within 90 days, apply to
the SEC for permission to continue as trustee or resign. Any Agent may do the
same with like rights and duties. Each of the Trustee and the Collateral Agent
is also subject to SECTIONS 7.10 and 7.11 hereof, and the Trustee is subject to
Sections 310(b) and 311 of the Trust Indenture Act.
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, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
SECTION 7.05 NOTICE OF DEFAULTS.
If a Default occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to Holders of Notes a notice of the Default
within 90 days after it occurs. Except in the case of a Default relating to the
payment of principal, premium, if any, or interest on any Note, the Trustee may
withhold from the Holders notice of any continuing Default if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders of the Notes.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each May 15, beginning with the May 15 following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with Trust Indenture Act Section 313(a) (but if no
event described in Trust Indenture Act Section 313(a) has occurred within the
twelve months preceding the reporting date, no report need be transmitted). The
Trustee also shall comply with Trust Indenture Act Section 313(b)(2). The
Trustee shall also transmit by mail all reports as required by Trust Indenture
Act Section 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with Trust Indenture Act
Section 313(d). The Company shall promptly notify the Trustee when the Notes are
listed on any stock exchange.
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SECTION 7.07 COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee and Collateral Agent from time to
time such compensation for its acceptance of this Indenture and services
hereunder as the parties shall agree in writing from time to time. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee promptly upon request for
all reasonable disbursements, advances and expenses incurred or made by it in
connection with the performance of its duties under this Indenture or the
Collateral Agreements, as the case may be, in addition to the compensation for
its services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company and the Guarantors, jointly and severally, shall indemnify
the Trustee for, and hold the Trustee harmless against, any and all loss,
damage, claims, liability or expense (including attorneys' fees) incurred by it
in connection with the acceptance or administration of this Indenture or the
Collateral Agreements, or the administration of the trust created hereby and the
performance of its duties hereunder (including the costs and expenses of
enforcing this Indenture against the Company or any of the Guarantors (including
this SECTION 7.07) or defending itself against any claim whether asserted by any
Holder, the Company or any Guarantor, or liability in connective with the
acceptance, exercise or performance of any of its powers or duties hereunder).
The Trustee shall notify the Company in writing promptly of any claim for which
it may seek indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. The Company shall defend the
claim and the Trustee may have separate counsel and the Company shall pay the
fees and expenses of such counsel. The Company need not (x) pay for any
settlement made without its written consent, which shall not be unreasonably
withheld, or (y) reimburse any expense or indemnify against any of the foregoing
loss, liability, damage, claim or expense incurred by the Trustee through the
Trustee's own willful misconduct, negligence or bad faith.
The obligations of the Company under this SECTION 7.07 shall survive
the satisfaction and discharge of this Indenture or the earlier resignation or
removal of the Trustee.
To secure the payment obligations of the Company and the Guarantors in
this SECTION 7.07, the Trustee shall have a Lien prior to the Notes on all
money, property or Collateral held or collected by the Trustee in its capacity
or the Collateral Agent in its capacity as Collateral Agent, except in the case
of the Trustee, assets or money held in trust to pay principal and interest on
particular Notes. Such Lien shall survive the satisfaction and discharge of this
Indenture.
When the Trustee or Collateral Agent incurs expenses or renders
services after an Event of Default specified in SECTION 6.01(A)(VI) or SECTION
6.01(A)(VII) hereof occurs, the expenses and the compensation for the services
(including the reasonable fees and expenses of its agents and counsel) are
intended to constitute expenses of administration under any Bankruptcy Law.
The Trustee shall comply with the provisions of Trust Indenture Act
Section 313(b)(2) to the extent applicable.
SECTION 7.08 REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this SECTION 7.08. The Trustee may resign in writing
at any time and be discharged from the trust hereby created by so notifying the
Company. The Holders of a majority in principal amount of the then outstanding
Notes may
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remove the Trustee by so notifying the Trustee and the Company in writing.
The Company may remove the Trustee if:
(a) the Trustee fails to comply with SECTION 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting as Trustee hereunder or
with respect to the Notes.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee (at the Company's
expense), the Company or the Holders of at least 10% in principal amount of the
then outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has been a
Holder for at least six months, fails to comply with SECTION 7.10 hereof, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee and execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee; PROVIDED all sums owing to the Trustee hereunder
have been paid and subject to the Lien provided for in SECTION 7.07 hereof.
Notwithstanding replacement of the Trustee pursuant to this SECTION 7.08, the
Company's obligations under SECTION 7.07 hereof shall continue for the benefit
of the retiring Trustee.
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee; PROVIDED, HOWEVER, that such Person shall be otherwise qualified and
eligible under Article Seven hereof.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
79
authorities and that has a combined capital and surplus of at least $150,000,000
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of Trust Indenture Act Sections 310(a)(1), (2) and (5). The Trustee
is subject to Trust Indenture Act Section 310(b).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to Trust Indenture Act Section 311(a),
excluding any creditor relationship listed in Trust Indenture Act Section
311(b). A Trustee who has resigned or been removed shall be subject to Trust
Indenture Act Section 311(a) to the extent indicated therein.
SECTION 7.12 TRUSTEE IN OTHER CAPACITIES; COLLATERAL AGENT.
References to the Trustee in SECTIONS 7.01(B)(F), 7.02, 7.03, 7.04,
7.07 and 7.08 shall include the Trustee in its role as Collateral Agent and
Paying Agent.
SECTION 7.13 CO-TRUSTEES, CO-COLLATERAL AGENT AND SEPARATE TRUSTEES,
COLLATERAL AGENT
At any time or times, for the purpose of meeting the legal
requirements of any jurisdiction in which any of the Collateral may at the time
be located, the Company shall have the power to appoint, and, upon the written
request of the Holders of at least 25% in principal amount of the Notes
outstanding, the Company shall appoint, one or more Persons approved by the
Trustee either to act as co-trustee, jointly with the Trustee, of all or any
part of the Collateral, to act as co-collateral agent, jointly with the
Collateral Agent, or to act as separate trustees or collateral agents of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power reasonably necessary, subject to
the other provisions of this SECTION 7.13. As of the Issue Date, the Company
hereby appoints The Bank of New York Mellon as the initial Collateral Agent and
The Bank of New York Mellon hereby accepts such appointment and agrees to act
and serve in such capacity. If the Company does not make any such subsequent
appointment within thirty (30) days after the receipt by it of a request so to
do, or in case an Event of Default has occurred and is continuing, the Trustee
shall have the power to make such subsequent appointment.
Should any written instrument from the Company reasonably be required
by any co-trustee, co-collateral agent or separate trustee or separate
collateral agent so appointed for more fully confirming to such co-trustee,
co-collateral agent, separate trustee or separate collateral agent such
property, title, right or power, any and all such instruments shall, on request,
be executed, acknowledged and delivered by the Company.
Every co-trustee, co-collateral agent or separate trustee or separate
collateral agent shall, to the extent permitted by law, but to such extent only,
be appointed subject to the following terms, namely:
The Notes shall be authenticated and delivered, and all rights,
powers, duties and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustee hereunder, shall be exercised solely, by
the Trustee.
The rights, powers, duties and obligations hereby conferred or imposed
upon the Trustee shall be conferred or imposed upon and exercised or performed
by the Trustee or by the Trustee and such co-trustee or separate trustee, or by
the Collateral Agent and such co-collateral agent or separate collateral agent,
jointly as shall be provided in the instrument appointing such co-trustee or
separate trustee or co-
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collateral agent or separate collateral agent, except to the extent that under
any law of any jurisdiction in which any particular act is to be performed, the
Trustee shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and performed by
such co-trustee or separate trustee, Collateral Agent or co-collateral agent or
separate collateral agent.
The Company at any time, by a Board Resolution, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this
SECTION 7.13; PROVIDED that, in case an Event of Default has occurred and is
continuing, the Trustee, by an instrument in writing executed by it, shall have
power to accept the resignation of, or remove, any such co-trustee,
co-collateral agent, separate trustee or separate collateral agent. Upon the
written request of the Company, the Trustee shall join with the Company in the
execution, delivery and performance of all instruments and agreements reasonably
necessary or proper to effectuate such resignation or removal. A successor to
any co-trustee, co-collateral agent, separate trustee or separate collateral
agent so resigned or removed may be appointed in the manner provided in this
SECTION 7.13.
No co-trustee, co-collateral agent, separate trustee or separate
collateral agent hereunder shall be personally liable by reason of any act or
omission of the Trustee or the Collateral Agent, or any other such trustee or
collateral agent hereunder, other than any act or omission resulting from such
co-trustee's, co-collateral agent's, separate trustee or separate collateral
agent's negligence or willful misconduct.
Any act of Holders delivered to the Trustee shall be deemed to have
been delivered to each such co-trustee or separate trustee and any act of
Holders delivered to the Collateral Agent shall be deemed to have been delivered
to each such co-collateral agent or separate collateral agent.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at its option and at any time, elect to have either
SECTION 8.02 or 8.03 hereof applied to all outstanding Notes and all obligations
of the Guarantors upon compliance with the conditions set forth below in this
ARTICLE 8.
SECTION 8.02 LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under SECTION 8.01 hereof of the option
applicable to this SECTION 8.02, the Company and the Guarantors shall, subject
to the satisfaction of the conditions set forth in SECTION 8.04 hereof, be
deemed to have been discharged from their obligations with respect to all
outstanding Notes and Guarantees and the Collateral Agreements on the date the
conditions set forth below are satisfied ("Legal Defeasance"). For this purpose,
Legal Defeasance means that the Company and the Guarantors shall be deemed to
have paid and discharged the entire Indebtedness represented by the outstanding
Notes (including, the Guarantees), which shall thereafter be deemed to be
"outstanding" only for the purposes of SECTION 8.05 hereof and the other
Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all their other obligations under such Notes, the Guarantees, the
Collateral Agreements and this Indenture (and the Trustee, on demand of and at
the expense of the Company, shall execute proper instruments acknowledging the
same), except for the following provisions which shall survive until otherwise
terminated or discharged hereunder:
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(a) the rights of 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 solely out of the trust created pursuant to this Indenture
referred to in SECTION 8.04 hereof;
(b) the Company's obligations with respect to Notes concerning issuing
temporary Notes, registration of such Notes, mutilated, destroyed, lost or
stolen Notes and the maintenance of an office or agency for payment and money
for security payments held in trust;
(c) the rights, powers, trusts, duties and immunities of the Trustee,
and the Company's obligations in connection therewith; and
(d) this SECTION 8.02.
If the Company exercises the Legal Defeasance option, payment of the
Notes may not be accelerated because of an Event of Default with respect to the
Notes (other than an Event of Default specified in SECTION 6.01(A)(I), SECTION
6.01(A)(II), SECTION 6.01(A)(VI) or SECTION 6.01(A)(VII)). Subject to compliance
with this ARTICLE 8, the Company may exercise its option under this SECTION 8.02
notwithstanding the prior exercise of its option under SECTION 8.03 hereof.
SECTION 8.03 COVENANT DEFEASANCE.
Upon the Company's exercise under SECTION 8.01 hereof of the option
applicable to this SECTION 8.03, the Company and the Guarantors shall, subject
to the satisfaction of the conditions set forth in SECTION 8.04 hereof, be
released from their obligations under the covenants contained in SECTIONS 4.03
through 4.19 hereof and SECTION 5.01(A)(IV) and (B) hereof with respect to the
outstanding Notes on and after the date the conditions set forth in SECTION 8.04
hereof are satisfied ("Covenant Defeasance"), and the Notes shall thereafter be
deemed not "outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes and the Guarantees,
the Company and the 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
hereof, but, except as specified above, the remainder of this Indenture and such
Notes and Guarantees shall be unaffected thereby. In addition, upon the
Company's exercise under SECTION 8.01 hereof of the option applicable to this
SECTION 8.03 hereof, subject to the satisfaction of the conditions set forth in
SECTION 8.04 hereof, SECTIONS 6.01(A)(III), 6.01(A)(IV), 6.01(A)(V), 6.01(A)(VI)
(solely with respect to Restricted Subsidiaries that are Significant
Subsidiaries), 6.01(A)(VII) (solely with respect to Restricted Subsidiaries that
are Significant Subsidiaries), 6.01(A)(VIII), 6.01(A)(IX) and 6.01(A)(X) shall
not constitute Events of Default.
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SECTION 8.04 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
SECTION 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance
with respect to the Notes:
(i) the Company shall irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Notes, cash in U.S.
dollars, noncallable Government Securities, or a combination thereof,
in such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent investment bank, appraisal firms or
public accountants, to pay the principal of, premium, if any, and
interest on the outstanding Notes on the stated maturity or on the
applicable redemption date, as the case may be, and the Company shall
specify whether the Notes are being defeased to maturity or to a
particular redemption date;
(ii) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an opinion of counsel in the United States
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 date of this Indenture,
there has been a change in the applicable federal income tax law, in
either case to the effect that, and based thereon such opinion of
counsel shall confirm that, the Holders of the outstanding Notes will
not recognize income, gain or loss for federal income tax purposes as
a result of such Legal Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance had not
occurred;
(iii) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an opinion of counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of
the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Covenant Defeasance
and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(iv) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event
of Default resulting from the borrowing of funds to be applied to such
deposit);
(v) such Legal Defeasance or Covenant Defeasance will not result
in a breach or violation of, or constitute a default under any
material agreement or instrument (other than this Indenture) to which
the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;
(vi) the Company shall have delivered to the Trustee an Officer's
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of Notes over the other creditors
of the Company with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others; and
(vii) the Company shall have delivered to the Trustee an
Officer's Certificate and an opinion of counsel, each stating that all
conditions precedent provided for relating to the Legal Defeasance or
the Covenant Defeasance have been complied with.
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SECTION 8.05 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to SECTION 8.06 hereof, all money and Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this SECTION 8.05, the "Trustee") pursuant
to SECTION 8.04 hereof in respect of the outstanding Notes shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company or a Guarantor acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium and interest, but such money
need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or Government Securities
deposited pursuant to SECTION 8.04 hereof or the principal and interest received
in respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the outstanding Notes.
Anything in this ARTICLE 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or Government Securities held by it as provided in
SECTION 8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under SECTION
8.04(A) hereof), are in excess of the amount thereof that would then be required
to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.06 REPAYMENT TO COMPANY.
The Trustee shall promptly, and in any event, no later than three
Business Days, pay to the Company after request therefor, any excess money or
Government Securities held with respect to the Notes at such time in excess of
amounts required to pay any of the Company's Obligations then owing with respect
to the Notes. Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of, premium or
interest on any Note and remaining unclaimed for two years after such principal,
and premium or interest has become due and payable shall be paid to the Company
on its request or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Note shall thereafter look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease.
SECTION 8.07 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
dollars or Government Securities in accordance with SECTION 8.02 or 8.03 hereof,
as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
SECTION 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with SECTION 8.02 or 8.03
hereof, as the case may be; PROVIDED that, if the Company makes any payment of
principal of, premium or interest on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
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ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01 WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding SECTION 9.02 hereof, the Company, any Guarantor (with
respect to the Guarantee or this Indenture) and the Trustee or Collateral Agent,
as applicable, may amend or supplement the Indenture Documents without the
consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(3) to provide for the assumption of the Company's
obligations to Holders of Notes in the case of a merger or
consolidation or sale of all or substantially all of the Company's
assets;
(4) to make any change that would provide any additional
rights or benefits to the Holders of Notes or that does not adversely
affect the legal rights under the Indenture Documents of any such
Holder;
(5) to comply with requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act;
(6) to conform the text of the Indenture Documents to any
provision of the "Description of Notes" to the extent that such
provision in the "Description of Notes" was intended to be a verbatim
recitation of a provision of the Indenture Documents;
(7) to allow any Guarantor to execute a supplemental
indenture and/or a Guarantee with respect to the Notes;
(8) to comply with the rules of any applicable securities
depository;
(9) to add a co-issuer or co-obligor of the Notes; or
(10) if necessary in connection with any addition or release
of Collateral permitted under the terms of the Indenture Documents.
Upon the request of the Company accompanied by a resolution of its
board of directors authorizing the execution of any such amended or supplemental
indenture, and upon receipt by the Trustee of the documents described in SECTION
9.06 hereof, the Trustee and the Collateral Agent, if applicable, shall join
with the Company and the Guarantors in the execution of any amended or
supplemental indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee 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.
Except as provided below in this SECTION 9.02, subject to the terms of
the Intercreditor Agreement, the Company and the Trustee or Collateral Agent, as
applicable, may amend or supplement
85
the Indenture Documents with the consent of the Holders of at least a majority
in principal amount of the Notes then outstanding (including, without
limitation, consents obtained in connection with a tender offer or exchange
offer for, or purchase of, the Notes), and, subject to SECTIONS 6.04 and 6.07
hereof, any existing Default or Event of Default or compliance with any
provision of the Indenture Documents may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Notes
(including, without limitation, consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Notes). SECTION 2.08 hereof and
SECTION 2.09 hereof shall determine which Notes are considered to be
"outstanding" for the purposes of this SECTION 9.02.
Upon the request of the Company accompanied by a resolution of its
board of directors authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in SECTION 9.06 hereof, the Trustee shall
join with the Company and the Guarantors 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.
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, consent, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof.
After an amendment, supplement or waiver under this SECTION 9.02
becomes effective, the Company shall (or cause the Trustee, at the expense of
and at the request of the Company, to) 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.
Without the consent of each affected Holder of Notes, an amendment,
consent, supplement or waiver under this SECTION 9.02 may not (with respect to
any Notes held by a non-consenting Holder):
(i) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(ii) reduce the principal of or change the fixed maturity of any
Note or alter the provisions with respect to the redemption of the
Notes (other than provisions relating to the redemption of the Notes
described in SECTIONS 4.10, 4.11 and 4.15);
(iii) reduce the rate of or change the time for payment of
interest on any Note;
(iv) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Notes (except a
rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the Notes and a waiver of
the payment default that resulted from such acceleration);
(v) make any Note payable in money other than that stated in the
Notes;
(vi) make any change in the provisions of this Indenture relating
to waivers of past Defaults or the rights of Holders of Notes to
receive payments of principal of or premium, if any, or interest on
the Notes;
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(vii) after the Company's obligation to purchase Notes arises
under this Indenture, amend, change or modify in any material respect
the obligation of the Company to make and consummate a Change of
Control Offer in the event of a Change of Control, make and consummate
an Asset Sale Offer with respect to any Asset Sale that has been
consummated or make and consummate an Excess Cash Flow Offer with
respect to Excess Cash Flow, or modify any of the provisions or
definitions with respect thereto;
(viii) modify or change any provision of this Indenture in any
manner which subordinates the Notes in right of payment to any other
Indebtedness of the Company or which subordinates any Guarantee in
right of payment to any other Indebtedness of the Guarantor, in each
case in a manner that adversely affects the Holders in any material
respect; PROVIDED that subordination shall not be affected by the
existence or lack thereof of a security interest or by priority with
respect to a security interest
(ix) release Parent or any Subsidiary Guarantor that is a
Significant Subsidiary from any of its obligations under its Guarantee
or this Indenture otherwise than in accordance with the terms of this
Indenture; or
(x) make any change in the foregoing amendment and waiver
provisions.
No such amendment may release all or substantially all of the
Collateral securing the Company's and Guarantors' Obligations under the
Indenture, the Notes and any Guarantees other than in accordance with the terms
of the Collateral Agreement without the consent of Holders holding at least 75%
of the aggregate principal amount of the Notes then outstanding.
It shall not be necessary for the consent of the Holders under this
SECTION 9.02 to approve the particular form of any proposed amendment,
supplement, waiver or consent, but it shall be sufficient if such consent
approves the substance of the proposed amendment, supplement, waiver or consent.
After an amendment, supplement or waiver under this SECTION 9.02
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement, waiver or consent. 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 amendment,
supplement, waiver or consent.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes shall be
set forth in an amended or supplemental indenture that complies with the Trust
Indenture Act as then in effect.
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee or Collateral Agent,
as applicable, receives written notice of revocation before the date the waiver,
supplement or amendment becomes effective. An amendment, supplement or waiver
becomes effective in accordance with its terms and thereafter binds every
Holder.
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The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement, or waiver. If a record date is fixed, then, notwithstanding the
preceding paragraph, those Persons who were Holders at such record date (or
their duly designated proxies), and only such Persons, shall be entitled to
consent to such amendment, supplement, or waiver or to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 120 days
after such record date unless the consent of the requisite number of Holders has
been obtained.
SECTION 9.05 NOTATION ON OR EXCHANGE OF NOTES.
The Trustee or Collateral Agent, as applicable, may place an
appropriate notation about an amendment, supplement or waiver on any Note
thereafter authenticated. The Company in exchange for all Notes may issue and
the Trustee shall, upon receipt of an Authentication Order, authenticate new
Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this ARTICLE 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amendment, supplement or waiver until the board of directors
approves it. In executing any amendment, supplement or waiver, the Trustee shall
be entitled to receive and (subject to SECTION 7.01 hereof) shall be fully
protected in relying upon, in addition to the documents required by SECTION
12.04 hereof, an Officer's 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 amendment, supplement or waiver is the
legal, valid and binding obligation of the Company and any Guarantors party
thereto, enforceable against them in accordance with its terms, subject to
customary exceptions, and complies with the provisions hereof (including SECTION
9.04).
ARTICLE 10
GUARANTEES
SECTION 10.01 GUARANTEE.
Subject to this ARTICLE 10, each of the Guarantors hereby, jointly and
severally, unconditionally guarantees to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the Notes,
the Collateral Agreements, the other Indenture Documents, or the obligations of
the Company hereunder or thereunder, that: (a) the principal of, interest and
premium on the Notes shall be promptly paid in full when due, whether at
maturity, by acceleration, redemption or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, if lawful, and all other
obligations of the Company to the Holders or the Trustee or Collateral Agent
hereunder or thereunder shall be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and (b) in case of any extension
of time of payment or renewal of any Notes or any of such other obligations,
that same shall be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. Failing payment when due of any amount so guaranteed
or any performance so guaranteed for whatever reason, the Guarantors shall be
jointly and severally obligated to
88
pay the same immediately. Each Guarantor agrees that this is a guarantee of
payment and not a guarantee of collection.
The Guarantors hereby agree that their obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Notes, the Collateral Agreements, the other Indenture Documents, or this
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever and covenants
that this Guarantee shall not be discharged except by complete performance of
the obligations contained in the Notes, the Collateral Agreements and this
Indenture.
Each Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees) incurred by the Trustee or any Holder in
enforcing any rights under this SECTION 10.01.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Guarantors or any custodian, trustee, liquidator or
other similar official acting in relation to either the Company or the
Guarantors, any amount paid either to the Trustee, the Collateral Agent or such
Holder, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.
Each Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in ARTICLE 6 hereof
for the purposes of this Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such obligations as provided in ARTICLE 6 hereof, such obligations (whether or
not due and payable) shall forthwith become due and payable by the Guarantors
for the purpose of this Guarantee. The Guarantors shall have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Guarantees.
Each Guarantee shall remain in full force and effect and continue to
be effective should any petition be filed by or against the Company for
liquidation, reorganization, should the Company become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Company's assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Notes are,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee on the Notes or Guarantees, whether as a
"voidable preference," "fraudulent transfer" or otherwise, all as though such
payment or performance had not been made. In the event that any payment or any
part thereof, is rescinded, reduced, restored or returned, the Notes shall, to
the fullest extent permitted by law, be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
In case any provision of any Guarantee 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.
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The Guarantee issued by any Guarantor shall be (i) a senior secured
obligation of such Guarantor, (ii) senior in right of payment with all existing
and future subordinated Indebtedness of such Guarantor, and (iii) PARI PASSU in
right of payment with all existing and future senior Indebtedness of such
Guarantor, if any.
Each payment to be made by a Guarantor in respect of its Guarantee
shall be made without set-off, counterclaim, reduction or diminution of any kind
or nature.
SECTION 10.02 LIMITATION ON GUARANTOR LIABILITY.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Guarantee of such
Guarantor not constitute a fraudulent transfer or conveyance for purposes of
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law to the extent applicable to any
Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and
the Guarantors hereby irrevocably agree that the obligations of each Guarantor
shall be limited to the maximum amount as will, after giving effect to such
maximum amount and all other contingent and fixed liabilities of such Guarantor
that are relevant under such laws and after giving effect to any collections
from, rights to receive contribution from or payments made by or on behalf of
any other Guarantor in respect of the obligations of such other Guarantor under
this ARTICLE 10, result in the obligations of such Guarantor under its Guarantee
not constituting a fraudulent conveyance or fraudulent transfer under applicable
law. Each Guarantor that makes a payment under its Guarantee shall be entitled
upon payment in full of all guaranteed obligations under this Indenture to a
contribution from each other Guarantor in an amount equal to such other
Guarantor's pro rata portion of such payment based on the respective net assets
of all the Guarantors at the time of such payment determined in accordance with
GAAP.
SECTION 10.03 EXECUTION AND DELIVERY.
To evidence its Subsidiary Guarantee set forth in SECTION 10.01, each
Guarantor hereby agrees that a notation of such Subsidiary Guarantee
substantially in the form included in Exhibit D shall be endorsed by an Officer
of such Guarantor on each Note authenticated and delivered by the Trustee and
that this Indenture shall be executed on behalf of such Guarantor by its
President or one of its Vice Presidents.
Each Guarantor hereby agrees that its Guarantee set forth in SECTION
10.01 hereof shall remain in full force and effect notwithstanding the absence
of the endorsement of any notation of such Guarantee on the Notes.
If an Officer whose signature is on this Indenture no longer holds
that office at the time the Trustee authenticates the Note, the Guarantee shall
be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee set forth in
this Indenture on behalf of the Guarantors.
If required by SECTION 4.16 hereof, the Company shall cause any newly
created or acquired Restricted Subsidiary to comply with the provisions of
SECTION 4.16 hereof and this ARTICLE 10, to the extent applicable.
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SECTION 10.04 SUBROGATION.
Each Guarantor shall be subrogated to all rights of Holders of Notes
against the Company in respect of any amounts paid by any Guarantor pursuant to
the provisions of SECTION 10.01 hereof; PROVIDED that, if an Event of Default
has occurred and is continuing, no Guarantor shall be entitled to enforce or
receive any payments arising out of, or based upon, such right of subrogation
until all amounts then due and payable by the Company under this Indenture or
the Notes shall have been paid in full.
SECTION 10.05 BENEFITS ACKNOWLEDGED.
Each Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this Indenture and that
the guarantee and waivers made by it pursuant to its Guarantee are knowingly
made in contemplation of such benefits.
SECTION 10.06 RELEASE OF GUARANTEES.
(a) A Guarantee by a Subsidiary Guarantor shall be automatically and
unconditionally released and discharged, and no further action by such
Guarantor, the Company or the Trustee is required for the release of such
Guarantor's Guarantee:
(1) if (a) all of the Capital Interests issued by such
Subsidiary Guarantor or all or substantially all of the assets of such
Guarantor are sold or otherwise disposed of (including by way of
merger or consolidation) to a Person other than the Company or any of
its Restricted Subsidiaries or (b) such Subsidiary Guarantor ceases to
be a Restricted Subsidiary, and in each case of (a) and (b) the
Company otherwise complies, to the extent applicable, with SECTION
4.10, SECTION 4.17 and SECTION 5.01, as applicable; or
(2) upon (i) payment in full in cash of the principal of,
premium, if any, and accrued and unpaid interest, on the Notes and all
other Obligations hereunder and under the other Indenture Documents
that are then due and payable, (ii) a satisfaction and discharge of
this Indenture pursuant to SECTION 11.01 and (iii) the occurrence of a
Legal Defeasance or Covenant Defeasance pursuant to SECTION 8.02 or
SECTION 8.03.
(b) The Guarantee of the Parent will be released without further
action required on the part of the Trustee or any Holder (1) in connection with
any sale or other disposition of all or substantially all of the assets of the
Company, (2) at such time as the Parent ceases to Guarantee any obligations
securing First Priority Claims; PROVIDED, that so long as any Notes remain
outstanding, the Guarantee of the Parent shall be reinstated upon the subsequent
Guarantee by the Parent of any obligations securing First Priority Claims, or
(3) upon (i) payment in full in cash of the principal of, premium, if any, and,
accrued and unpaid interest, on the Notes and all other Obligations hereunder
and under the other Indenture Documents that are then due and payable, (ii) a
satisfaction and discharge of this Indenture pursuant to SECTION 11.01 and (iii)
the occurrence of a Legal Defeasance or Covenant Defeasance pursuant to SECTION
8.02 or SECTION 8.03.
(c) In the case of a release of a Guarantee pursuant to paragraph (a)
or (b) above, the Company shall deliver to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent provided
for in this Indenture relating to such transaction have been complied with in
all material respects. At the request and at the expense of the Company, the
Trustee shall execute and deliver any instrument evidencing such release.
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ARTICLE 11
SATISFACTION AND DISCHARGE
SECTION 11.01 SATISFACTION AND DISCHARGE.
This Indenture (and all Liens on Collateral granted in connection with
the issuance of Notes) shall be discharged and shall cease to be of further
effect (except as to surviving rights of registration of transfer or exchange of
the Notes, as expressly provided for herein) as to all outstanding Notes, when:
(a) either
(i) all the Notes theretofore authenticated and delivered (except
lost, stolen or destroyed Notes which have been replaced or paid and
Notes for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and thereafter repaid
to the Company or discharged from such trust) have been delivered to
the Trustee for cancellation; or
(ii) all Notes not theretofore delivered to the Trustee for
cancellation (1) have become due and payable or (2) will become due
and payable within one year, or are to be called for redemption within
one year, under arrangements reasonable satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company, 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;
(b) the Company has paid all other sums payable under this Indenture
by the Company; and
(c) the Company has delivered to the Trustee an Officer's Certificate
and an opinion of counsel stating that all conditions precedent under this
Indenture relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, if
money shall have been deposited with the Trustee pursuant to subclause (ii) of
clause (a) of this SECTION 11.01, the provisions of SECTION 11.02 and SECTION
8.06 hereof shall survive.
SECTION 11.02 APPLICATION OF TRUST MONEY.
Subject to the provisions of SECTION 8.06 hereof, all money deposited
with the Trustee pursuant to SECTION 11.01 hereof shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium) and
interest for whose payment such money has been deposited with the Trustee; but
such money need not be segregated from other funds except to the extent required
by law.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with SECTION 11.01 hereof by reason of any
legal proceeding or by reason of any order or
92
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's and any Guarantor's
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to SECTION 11.01 hereof; PROVIDED
that if the Company has made any payment of principal of, premium or interest on
any Notes because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or Government Securities held by the Trustee or Paying Agent.
SECTION 11.03 ACKNOWLEDGMENT OF DISCHARGE BY TRUSTEE.Subject to SECTION 8.07,
after the conditions of SECTION 8.01, SECTION 8.02 or SECTION 11.01 have been
satisfied, the Trustee upon written request shall acknowledge in writing the
discharge of the Company's Obligations under this Indenture and the Collateral
Agreements except for those surviving obligations specified in SECTION 7.07,
SECTION 8.02 and SECTION 11.02 and the Trustee shall execute and deliver to the
Company any document reasonably requested by the Company to effect or evidence
any release and discharge of Lien or Collateral Agreement contemplated by
SECTION 13.06.
ARTICLE 12
MISCELLANEOUS
SECTION 12.01 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by Trust Indenture Act Section 318(c), the imposed duties
shall control.
SECTION 12.02 NOTICES.
Any notice or communication by the Company, any Guarantor or the
Trustee to the others is duly given if in writing and delivered in person or
mailed by first-class mail (registered or certified, return receipt requested),
fax or overnight air courier guaranteeing next day delivery, to the others'
address:
If to the Company and/or any Guarantor:
Xxxxxxx & Xxxxx Xxxxxxxxx'x Inc.
0000 Xxxxxx Xxxxxx Xxxxx 000
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
with a copy to:
Xxxxxx Xxxxxx, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxxx
with a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx, Esq.
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If to the Trustee or Collateral Agent:
The Bank of New York Mellon
000 Xxxxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Corporate Trust Administration
The Company, any Guarantor or the Trustee, by notice to the others,
may designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five calendar days after being deposited in the mail,
postage prepaid, if mailed by first-class mail; when receipt acknowledged, if
faxed; and the next Business Day after timely delivery to the courier, if sent
by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first-class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in Trust Indenture Act Section 313(c), to the extent required
by the Trust Indenture Act. Failure to mail a notice or communication to a
Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
Where this Indenture 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 Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance on such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 12.03 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to Trust Indenture Act Section 312(b)
with other Holders with respect to their rights under this Indenture, the
Collateral Agreements or the Notes. The Company, the Trustee, the Registrar and
anyone else shall have the protection of Trust Indenture Act Section 312(c).
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SECTION 12.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or any of the
Guarantors to the Trustee to take any action under this Indenture, the Company
or such Guarantor, as the case may be, shall furnish to the Trustee:
(a) An Officer's Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
SECTION 12.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture or
any Collateral Agreement relating to the proposed action have been satisfied;
and
(b) An Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
SECTION 12.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
Notwithstanding the foregoing, no such Opinion shall be given with
respect to the delivery of the initial Notes.
SECTION 12.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to SECTION 4.04 hereof or Trust Indenture Act Section
314(a)(4)) and the Collateral Agreements shall comply with the provisions of
Trust Indenture Act Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with (and, in the case of an Opinion of Counsel, may be limited to
reliance on an Officer's Certificate as to matters of fact); and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
SECTION 12.06 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar, Paying Agent or Calculation Agent may make reasonable
rules and set reasonable requirements for its functions.
SECTION 12.07 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, future or present director, officer, employee, partner,
manager, agent, member (or Person forming any limited liability company),
incorporator or stockholder of the Company or any Guarantor, as such, shall have
any liability for any obligations of the Company or any Guarantor under the
Notes, the Indenture Documents, the Guarantees or for any claim based on, in
respect of, or by reason of, such
95
obligations or their creation. Each Holder of Notes by accepting a Note and
Guarantee waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Notes and Guarantee.
SECTION 12.08 GOVERNING LAW.
THIS INDENTURE, THE NOTES AND ANY GUARANTEE WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 12.09 WAIVER OF JURY TRIAL.
EACH OF THE COMPANY, THE 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 NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 12.10 FORCE MAJEURE.
In no event shall the Trustee be responsible or liable for any failure
or delay in the performance of its obligations under this Indenture arising out
of or caused by, directly or indirectly, forces beyond its reasonable control,
including without limitation strikes, work stoppages, accidents, acts of war or
terrorism, civil or military disturbances, nuclear or natural catastrophes or
acts of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software or hardware) services.
SECTION 12.11 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Restricted Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
SECTION 12.12 SUCCESSORS.
All agreements of the Company in this Indenture and the Notes shall
bind its successors. All agreements of the Trustee and Collateral Agent in this
Indenture shall bind its successors. All agreements of each Guarantor in this
Indenture shall bind its successors, except as otherwise provided in SECTION
10.05 hereof.
SECTION 12.13 SEVERABILITY.
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 12.14 COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
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SECTION 12.15 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
ARTICLE 13
AGREEMENT TO SUBORDINATE SECURITY INTERESTS; SECURITY
SECTION 13.01 GRANT OF SECURITY INTEREST.
(a) To secure the due and punctual payment of the principal of,
premium, if any, and interest on the Notes and amounts due hereunder and under
the Guarantees when and as the same shall be due and payable, whether on an
Interest Payment Date, by acceleration, purchase, repurchase, redemption or
otherwise, and interest on the overdue principal of, premium, if any, and
interest (to the extent permitted by law), if any, on the Notes and the
performance of all other Obligations of the Company and the Guarantors to the
Holders, the Collateral Agent or the Trustee under the Indenture Documents, the
Company and the Guarantors hereby covenant to cause the Collateral Agreements to
be executed and delivered concurrently with this Indenture (other than any
Mortgage, landlord waiver or other Collateral Agreements required to be executed
and delivered after the date hereof pursuant to Section 4.23 or Section 4.24 or
any other provision of the Indenture Documents). Subject to the Intercreditor
Agreement, the Collateral Agreements shall provide for the grant by the Company
and the Guarantors party thereto to the Collateral Agent of security interests
in the Collateral.
(b) Each Holder, by its acceptance of a Note, consents and agrees to
the terms of each Collateral Agreement, as the same may be in effect or may be
amended, restated, replaced, supplemented or otherwise modified from time to
time in accordance with their respective terms, and authorizes and directs the
Collateral Agent to enter into this Indenture and the Collateral Agreements and
to perform its obligations and exercise its rights hereunder and thereunder in
accordance herewith and therewith. The Parent and Company shall, and shall cause
each of the Subsidiary Guarantors to, do or cause to be done, at their sole cost
and expense, all such actions and things as may be required by the provisions of
the Collateral Agreements, to assure and confirm to the Collateral Agent the
security interests in the Collateral contemplated hereby and by the Collateral
Agreements, as from time to time constituted, so as to render the same available
for the security and benefit of this Indenture and of the Notes and Guarantees
secured hereby, according to the intent and purpose herein and therein expressed
and, subject to the Intercreditor Agreement, including taking all commercially
reasonable actions required to cause the Collateral Agreements to create and
maintain, as security for the Obligations contained in the Indenture Documents,
valid and enforceable, perfected (to the extent required therein) security
interests in and on all the Collateral, in favor of the Collateral Agent,
superior to and prior to the rights of all third Persons other than as set forth
in the Intercreditor Agreement, and subject to no other Liens, in each case,
except as expressly provided herein or therein. If required for the purpose of
meeting the legal requirements of any jurisdiction in which any of the
Collateral may at the time be located, the Company and the Trustee and the
Collateral Agent acting at the direction of the Company shall have the power to
appoint, and shall take all reasonable action to appoint, one or more Persons to
act as co-collateral agent with respect to any such Collateral, with such rights
and powers limited to those deemed necessary for the Company, the Trustee or the
Collateral Agent to comply with any such legal requirements with respect to such
Collateral, and which rights and powers shall not be inconsistent with the
provisions of this Indenture or any other Indenture Document.
97
SECTION 13.02 INTERCREDITOR AGREEMENT.
This ARTICLE 13, the Security Agreement and the other Collateral
Agreements are subject to the terms, limitations and conditions set forth in the
Intercreditor Agreement.
REFERENCE IS MADE TO THE INTERCREDITOR AGREEMENT DATED AS OF SEPTEMBER
24, 2008 (AS AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO
TIME, THE "INTERCREDITOR AGREEMENT"), BETWEEN XXXXX FARGO FOOTHILL, LLC, AS
FIRST PRIORITY AGENT (AS DEFINED THEREIN), AND THE BANK OF NEW YORK MELLON, AS
SECOND PRIORITY AGENT (AS DEFINED THEREIN). NOTWITHSTANDING ANYTHING HEREIN TO
THE CONTRARY, THE LIEN AND SECURITY INTEREST GRANTED TO THE COLLATERAL AGENT,
FOR THE BENEFIT OF THE SECURED PARTIES, PURSUANT TO THIS AGREEMENT AND THE
EXERCISE OF ANY RIGHT OR REMEDY BY THE COLLATERAL AGENT AND THE OTHER SECURED
PARTIES HEREUNDER ARE SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT.
IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF THE
INTERCREDITOR AGREEMENT AND THE PROVISIONS OF THIS AGREEMENT OR THE OTHER
INDENTURE DOCUMENTS, THE PROVISIONS OF THE INTERCREDITOR AGREEMENT SHALL
CONTROL.
THE TRUSTEE AND EACH HOLDER, BY ITS ACCEPTANCE OF A NOTE, (A)
ACKNOWLEDGES THAT IT HAS RECEIVED A COPY OF THE INTERCREDITOR AGREEMENT, (B)
CONSENTS TO THE SUBORDINATION OF LIENS PROVIDED FOR IN THE INTERCREDITOR
AGREEMENT, (C) AGREES THAT IT WILL BE BOUND BY AND WILL TAKE NO ACTIONS CONTRARY
TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND (D) AUTHORIZES AND
INSTRUCTS THE COLLATERAL AGENT TO ENTER INTO THE INTERCREDITOR AGREEMENT AS
COLLATERAL AGENT AND ON BEHALF OF SUCH PARTY. THE FOREGOING PROVISIONS ARE
INTENDED AS AN INDUCEMENT TO THE FIRST PRIORITY SECURED PARTIES (AS DEFINED IN
THE INTERCREDITOR AGREEMENT) UNDER THE FIRST PRIORITY DEBT DOCUMENTS (AS DEFINED
IN THE INTERCREDITOR AGREEMENT) TO PERMIT THE INCURRENCE OF INDEBTEDNESS UNDER
THIS AGREEMENT AND TO EXTEND CREDIT TO THE COMPANY AND CERTAIN OF ITS
SUBSIDIARIES AND SUCH FIRST PRIORITY SECURED PARTIES ARE INTENDED THIRD PARTY
BENEFICIARIES OF SUCH PROVISIONS. IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY
BETWEEN THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND THE PROVISIONS OF THIS
AGREEMENT OR THE OTHER INDENTURE DOCUMENTS, THE PROVISIONS OF THE INTERCREDITOR
AGREEMENT SHALL CONTROL.
SECTION 13.03 RECORDING AND OPINIONS.
The Company shall from time to time promptly pay all reasonable
financing and continuation statement recording and/or filing fees, charges and
taxes relating to this Indenture, the Collateral Agreements and any amendments
hereto or thereto and any other instruments of further assurance required
pursuant hereto or thereto.
The Company shall furnish to the Trustee and the Collateral Agent (if
other than the Trustee), on or within one month of September 24 of each year,
commencing September 24, 2009, an Opinion of Counsel either (1) stating that, in
the opinion of such counsel, all action necessary to perfect or continue the
perfection of the security interests created by the Collateral Agreements and
reciting the details of such action or referring to prior Opinions of Counsel in
which such details are given have been taken or
98
(2) stating that, in the Opinion of such Counsel, no such action is necessary to
perfect or continue the perfection of any security interest created under any of
the Collateral Agreements.
SECTION 13.04 RELEASE OF COLLATERAL.
(a) Subject to the Intercreditor Agreement, the Collateral Agent shall
not at any time release Collateral from the security interests created by the
Collateral Agreements unless such release is in accordance with the provisions
of this Indenture and the applicable Collateral Agreements.
(b) Notwithstanding any provision to the contrary herein, Collateral
comprised of accounts receivable, inventory or (prior to the occurrence and
during the continuance of an Event of Default) the proceeds of the foregoing
shall be subject to automatic release upon sales of such inventory and
collection of the proceeds of such accounts receivable in the ordinary course of
business. If requested in writing by the Company, the Trustee shall instruct the
Collateral Agent to execute and deliver such documents, instruments or
statements and to take such other action as the Company may request to evidence
or confirm that the Collateral falling under this Section 13.04 has been
released from the Liens of each of the Collateral Agreements. The Collateral
Agent shall execute and deliver such documents, instruments and statements and
shall take all such actions promptly upon receipt of such instructions from the
Trustee.
SECTION 13.05 SPECIFIED RELEASES OF COLLATERAL.
(a) Collateral may be released from the Lien and security interest
created by the Collateral Agreements at any time or from time to time in
accordance with the provisions of the Collateral Agreements, including the
Intercreditor Agreement, or as provided hereby.
(i) Upon the request of the Company pursuant to an Officers'
Certificate certifying that all conditions precedent hereunder have
been met and without the consent of any Holder, whether prior to or
after the First Priority claims have been paid in full, the Company
and each Guarantor will be entitled to releases of assets included in
the Collateral from the Liens securing the Obligations under the Notes
and the Guarantees under any one or more of the following
circumstances:
(A) to enable the Company or a Guarantor to consummate asset
sales and dispositions permitted or not prohibited under SECTION 4.10;
(B) if Parent or any Subsidiary that is a Guarantor is
released from its Guarantee in accordance with the terms of this
Indenture, such Subsidiary's assets will also be released from the
Liens securing such Subsidiary's Guarantee and the other Indenture
Documents; or
(C) if required in accordance with the terms of the
Intercreditor Agreement.
(ii) The Company and each Guarantor will be entitled to releases
of assets included in the Collateral from the Liens securing the
obligations under the Notes and the Guarantees with the consent of
Holders in compliance with the amendment and waiver provisions of this
Indenture as described under SECTION 9.02.
99
Upon receipt of such Officers' Certificate and Opinion of Counsel and
any necessary or proper instruments of termination, satisfaction or release
prepared by the Company or the Guarantors, as the case may be, the Collateral
Agent shall execute, deliver or acknowledge such instruments or releases to
evidence the release of any Collateral permitted to be released pursuant to this
Indenture or the Collateral Agreements, including the Intercreditor Agreement.
The Trustee and each of the Holders acknowledge that a release of Collateral or
a Lien strictly in accordance with the terms of the Collateral Agreements and of
this ARTICLE 13 will not be deemed for any purpose to be in contravention of the
terms of this Indenture.
SECTION 13.06 RELEASE UPON SATISFACTION OR DEFEASANCE OF ALL OUTSTANDING
OBLIGATIONS.
The Liens on, and pledges of, all Collateral will also be terminated
and released upon (i) payment in full in cash of the principal of, premium, if
any, and, accrued and unpaid interest on the Notes and all other Obligations
hereunder and under the other Indenture Documents that are due and payable at or
prior to the time such principal, premium, if any, accrued and unpaid interest,
if any, are paid, (ii) a satisfaction and discharge of this Indenture pursuant
to SECTION 11.01 and (iii) the occurrence of a Legal Defeasance or Covenant
Defeasance pursuant to SECTIONS 8.02 or 8.03.
SECTION 13.07 FORM AND SUFFICIENCY OF RELEASE.
In the event that the Company or any Guarantor has sold, exchanged, or
otherwise disposed of or proposes to sell, exchange or otherwise dispose of any
portion of the Collateral that may be sold, exchanged or otherwise disposed of
by the Company or such Guarantor, and the Company or such Guarantor requests the
Trustee or the Collateral Agent to furnish a written disclaimer, release or
quit-claim of any interest in such property under this Indenture and the
Collateral Agreements, the Collateral Agent and the Trustee, as applicable,
shall execute, acknowledge and deliver to the Company or such Guarantor (in
proper form) such an instrument (prepared by the Company or such Guarantor)
promptly after satisfaction of the conditions set forth herein for delivery of
any such release. Notwithstanding the preceding sentence, all purchasers and
grantees of any property or rights purporting to be released herefrom shall be
entitled to rely upon any release executed by the Collateral Agent hereunder as
sufficient for the purpose of this Indenture and as constituting a good and
valid release of the property therein described from the Lien of this Indenture
or of the Collateral Agreements.
SECTION 13.08 PURCHASER PROTECTED.
No purchaser or grantee of any property or rights purporting to be
released herefrom shall be bound to ascertain the authority of the Trustee or
the Collateral Agent to execute the release or to inquire as to the existence of
any conditions herein prescribed for the exercise of such authority; nor shall
any purchaser or grantee of any property or rights permitted by this Indenture
to be sold or otherwise disposed of by the Company be under any obligation to
ascertain or inquire into the authority of the Company to make such sale or
other disposition.
SECTION 13.09 AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE COLLATERAL AGENT
UNDER THE COLLATERAL AGREEMENTS.
Subject to the provisions of the applicable Collateral Agreements, (a)
the Collateral Agent shall execute and deliver the Collateral Agreements and act
in accordance with the terms thereof, (b) the Collateral Agent may, in its sole
discretion and without the consent of the Trustee or the Holders, take all
actions it deems necessary or appropriate in order to (i) enforce any of the
terms of the Collateral Agreements and (ii) collect and receive any and all
amounts payable in respect of the Obligations of the Company and the Guarantors
hereunder and under the Notes, the Guarantees and the Collateral
100
Agreements and (c) the Collateral Agent shall have power to institute and to
maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Collateral by any act that may be unlawful or in violation of
the Collateral Agreements or this Indenture, and suits and proceedings as the
Collateral Agent may deem expedient to preserve or protect its interests and the
interests of the Trustee and the Holders in the Collateral (including the power
to institute and maintain suits or proceedings to restrain the enforcement of or
compliance with any legislative or other governmental enactment, rule or order
that may be unconstitutional or otherwise invalid if the enforcement of, or
compliance with, such enactment, rule or order would impair the security
interest thereunder or be prejudicial to the interests of the Collateral Agent,
the Holders or the Trustee). Notwithstanding the foregoing, the Collateral Agent
may, at the expense of the Company, request the direction of the Holders with
respect to any such actions and upon receipt of the written consent and
indemnity of the Holders of at least a majority in aggregate principal amount of
the then outstanding Notes, shall take such actions; PROVIDED that all actions
so taken shall, at all times, be in conformity with the requirements of the
Intercreditor Agreement.
SECTION 13.10 AUTHORIZATION OF RECEIPT OF FUNDS BY THE COLLATERAL AGENT
UNDER THE COLLATERAL AGREEMENTS.
The Collateral Agent is authorized to receive any funds for the
benefit of itself, the Trustee and the Holders distributed under the Collateral
Agreements to the extent permitted under the Intercreditor Agreement, for
turnover to the Trustee to make further distributions of such funds to itself,
the Collateral Agent and the Holders in accordance with the provisions of
SECTION 6.10 and the other provisions of this Indenture.
[Signatures on following pages]
101
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
XXXXXXX & XXXXX XXXXXXXXX'X INC.
By: /s/ Xxxx X. Xxxxx, Xx.
-------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Executive Vice President and
Chief Financial Officer
FIV CORP.
By: /s/ Xxxx X. Xxxxx, Xx.
-------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President, Secretary
MACAL INVESTORS, INC.
By: /s/ Xxxx X. Xxxxx, Xx.
-------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
XXXXX XXXXXXXXX PIE SHOPS, INC.
By: /s/ Xxxx X. Xxxxx, Xx.
-------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
XXXXX XXXXXXXXX WHOLESALERS, INC.
By: /s/ Xxxx X. Xxxxx, Xx.
-------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
MCID, INC.
By: /s/ Xxxx X. Xxxxx, Xx.
-------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
[Signature Page to Indenture]
XXXXXXX & XXXXX XXXXXXXXX'X HOLDING INC.
By: /s/ Xxxx X. Xxxxx, Xx.
-------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
XXXXXXX & XXXXX XXXXXXXXX'X REALTY LLC
By: /s/ Xxxx X. Xxxxx, Xx.
-------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
XXXXXXX FINANCE CORP.
By: /s/ Xxxx X. Xxxxx, Xx.
-------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
WILSHIRE BEVERAGE, INC.
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: President, Vice President,
Treasurer, Secretary
WILSHIRE RESTAURANT GROUP LLC
By: /s/ Xxxx X. Xxxxx, Xx.
-------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
[Signature Page to Indenture]
THE BANK OF NEW YORK MELLON,
as Trustee
By: /s/ Xxxxxxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxxxxxx Xxxxxx
Title: Vice President
THE BANK OF NEW YORK MELLON,
as Collateral Agent
By: /s/ Xxxxxxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxxxxxx Xxxxxx
Title: Vice President
[Signature Page to Indenture]
EXHIBIT A
[Face of Note]
[Insert the Global Note Legend, if applicable pursuant to the
provisions of the Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the
provisions of the Indenture]
[Insert the Regulation S Temporary Global Note Legend, if applicable
pursuant to the provisions of the Indenture]
S-1
CUSIP [__________]
ISIN [__________]
[RULE 144A][REGULATION S][IAI] GLOBAL NOTE
representing up to
$132,000,000
14% Senior Secured Notes due 2013
No. ___ [$_________]
XXXXXXX & XXXXX XXXXXXXXX'X INC.
promises to pay to CEDE & CO. or registered assigns, the principal sum [set
forth on the Schedule of Exchanges of Interests in the Global Note attached
hereto] [of _________________ United States Dollars] on May 31, 2013.
Interest Payment Dates: May 31 and November 30.
Record Dates: May 15 and November 15.
2
IN WITNESS HEREOF, the Company has caused this instrument to be duly
executed.
Dated: September [__], 2008
XXXXXXX & XXXXX XXXXXXXXX'X INC.
By:
----------------------------------
Name:
Title:
3
This is one of the Notes referred to in the within-mentioned Indenture:
THE BANK OF NEW YORK MELLON,
as Trustee
By:
-----------------------------------
Authorized Signatory
4
[Back of Note]
14% Senior Secured Notes due 2013
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
2. INTEREST. Xxxxxxx & Xxxxx Xxxxxxxxx'x Inc., a Delaware corporation,
promises to pay interest on the principal amount of this Note at 14% per annum
from September [__], 2008 until maturity. The Company will pay interest
semi-annually in arrears on May 31 and November 30 of each year, or if any such
day is not a Business Day, on the next succeeding Business Day (each, an
"Interest Payment Date"). Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the
date of issuance; PROVIDED that if there is no existing Default in the payment
of interest, and if this Note is authenticated between a record date referred to
on the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; PROVIDED, FURTHER, that,
the first Interest Payment Date shall be May 31, 2009. The Company will pay
interest (including post-petition interest in any proceeding under Bankruptcy
Law) on overdue principal and premium, if any, from time to time on demand at
the interest rate on the Notes; it shall pay interest (including post-petition
interest in any proceeding under Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace periods), from time to time on
demand at the interest rate on the Notes to the extent lawful. Interest on the
Notes will be computed on the basis of a 360-day year comprised of twelve 30-day
months.
3. METHOD OF PAYMENT. The Company will pay interest on the Notes to
the Persons who are registered Holders of Notes at the close of business on the
May 15 or November 15 (whether or not a Business Day), as the case may be, next
preceding the Interest Payment Date, even if such Notes are canceled after such
record date and on or before such Interest Payment Date, except as provided in
SECTION 2.12 of the Indenture with respect to defaulted interest. Payment of
interest may be made by check mailed to the Holders at their addresses set forth
in the register of Holders; PROVIDED that payment by wire transfer of
immediately available funds will be required with respect to principal of and
interest and premium, if any, on, all Global Notes and all other Notes the
Holders of which shall have provided wire transfer instructions to the Company
or the Paying Agent. Such payment shall be in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts.
4. PAYING AGENT AND REGISTRAR. Initially, The Bank of New York Mellon,
the Trustee under the Indenture, will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to the Holders.
The Company or any of its Subsidiaries may act in any such capacity.
5. INDENTURE. The Company issued the Notes under an Indenture, dated
as of September 24, 2008 (the "Indenture"), among Xxxxxxx & Xxxxx Xxxxxxxxx'x
Inc., the Guarantors named therein and the Trustee. This Note is one of a duly
authorized issue of notes of the Company designated as its 14% Senior Secured
Notes due 2013. The Notes issued under the Indenture (collectively referred to
herein as the "Notes") are separate series of Notes, but shall be treated as a
single class of securities under the Indenture, unless otherwise specified in
the Indenture. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"). The Notes are subject to all such
terms, and Holders are referred to the Indenture and such Act for a statement of
such terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling. The Notes are senior secured obligations of the Company. Interest
on the Notes will accrue
from the most recent date to which interest has been paid or, if no interest has
been paid, from the date of original issuance.
6. OPTIONAL REDEMPTION.
(a) At any time prior to May 31, 2011, the Company may redeem all
or a part of the Notes, upon not less than 30 nor more than 60 days' prior
notice mailed by first-class mail to each Holder's registered address, at a
redemption price equal to 100% of the principal amount of notes redeemed plus
the Applicable Premium as of, and accrued and unpaid interest to the date of
redemption, subject to the rights of the Holders of Notes on the relevant record
date to receive interest due on the relevant interest payment date. The Company
may acquire the Notes by means other than redemption, whether pursuant to a
Company tender offer, in open market transactions, or otherwise, assuming such
acquisition does not otherwise violate the terms of the Indenture.
(b) At any time on or prior to May 31, 2011, the Company may on
any one or more occasions redeem the Notes with the net cash proceeds of one or
more Equity Offerings, at a redemption price of 114% of the principal amount
thereof, plus accrued and unpaid interest thereon to the redemption date;
PROVIDED that at least 65% of the principal amount of the Notes originally
issued remains outstanding immediately following such redemption (excluding
Notes held by the Company or any of its Subsidiaries); and PROVIDED, FURTHER,
that such redemption shall occur within 90 days of the date of the closing of
any such Equity Offering.
(c) The Notes will be redeemable, in whole or in part on any one
or more occasions, at the option of the Company, on or after May 31, 2011, upon
not less than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and
unpaid interest and thereon to the applicable redemption date, if redeemed
during the twelve-month period beginning on May 31 of the years indicated below:
YEAR PERCENTAGE
---- ----------
2011.........................................................107.000%
2012 and thereafter..........................................100.000%
(d) Any redemption pursuant to this paragraph 5 shall be made
pursuant to the provisions of SECTIONS 3.01 through 3.06 of the Indenture.
7. MANDATORY REDEMPTION. The Company shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.
8. NOTICE OF REDEMPTION. Subject to SECTION 3.03 of the Indenture,
notice of redemption will be mailed by first-class mail at least 30 days but not
more than 60 days before the redemption date to each Holder whose Notes are to
be redeemed at its registered address. Notes in denominations larger than $1,000
may be redeemed in part but only in whole multiples of $1,000, unless all of the
Notes held by a Holder are to be redeemed. On and after the redemption date
interest ceases to accrue on Notes or portions thereof called for redemption.
9. OFFER TO REPURCHASE.
(a) Upon the occurrence of a Change of Control, ARTICLE 3
and SECTION 4.15 of the Indenture shall apply to the extent applicable.
6
(b) If the Company or any of its Restricted Subsidiaries
consummates an Asset Sale, ARTICLE 3 and SECTION 4.10 of the Indenture shall
apply to the extent applicable.
(c) If the Company makes an Excess Cash Flow Offer, ARTICLE 3 and
SECTION 4.11 of the Indenture shall apply to the extent applicable.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and the Company may require a Holder to pay any taxes and fees required by law
or permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed.
11. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture, the Guarantees or
the Notes may be amended or supplemented as provided in the Indenture.
13. DEFAULTS AND REMEDIES. The Events of Default relating to the
Notes are defined in SECTION 6.01 of the Indenture. If any Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare the principal,
premium, if any, interest and any other monetary obligations on all the then
outstanding Notes to be due and payable immediately. Notwithstanding the
foregoing, in the case of an Event of Default arising from certain events of
bankruptcy or insolvency, all outstanding Notes will become due and payable
immediately without further action or notice. Holders may not enforce the
Indenture, the Notes or the Guarantees except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in aggregate principal
amount of the then outstanding Notes may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of the Notes notice of
any continuing Default (except a Default or Event of Default relating to the
payment of principal, premium, if any, or interest) if it determines that
withholding notice is in their interest. The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Notes waive any existing or past Default or
Event of Default and its consequences under the Indenture except a continuing
Default or Event of Default in payment of the principal of, premium, if any, or
interest on, any of the Notes held by a non-consenting Holder. The Company and
each Guarantor (to the extent that such Guarantor is so required under the Trust
Indenture Act) is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is required after
becoming aware of any Default or Event of Default, to deliver to the Trustee a
statement specifying such Default or Event of Default and what action the
Company proposes to take with respect thereto.
14. GUARANTEES. Payment of principal, premium, if any, and interest on
the Notes, is unconditionally guaranteed, jointly and severally, by Parent and
each of the Company's existing and future Domestic Restricted Subsidiaries.
15. SECURITY. The obligations of the Company and the Guarantors under
the Notes and the Guarantees are secured by liens on the Collateral pursuant to
the terms of the Collateral Agreements. The actions of the Trustee, the
Collateral Agent and the Holders secured by such liens and the application
7
of proceeds from the enforcement of any remedies with respect to such Collateral
are limited pursuant to the terms of the Collateral Agreements.
16. AUTHENTICATION. This Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose until
authenticated by the manual signature of the Trustee.
17. GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND
BE USED TO CONSTRUE THE INDENTURE, THE NOTES AND THE GUARANTEES.
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Collateral Agreements. Requests may be
made to the Company at the following address:
Xxxxxxx & Xxxxx Xxxxxxxxx'x Inc.
0000 Xxxxxx Xxxxxx Xxxxx 000
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
8
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: __________________________________
(Insert assignee' legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: _______________
Your Signature:
---------------------------
(Sign exactly as your name
appears on the face of this
Note)
Signature Guarantee*:
------------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to SECTION 4.10 or 4.15 of the Indenture, check the appropriate box
below:
[_] SECTION 4.10 [_] SECTION 4.11 [_] SECTION 4.15
If you want to elect to have only part of this Note purchased by the
Company pursuant to SECTION 4.10, SECTION 4.11 or SECTION 4.15 of the Indenture,
state the amount you elect to have purchased:
$___________________________
Date: _______________
Your Signature:
---------------------------
(Sign exactly as your name
appears on the face of this
Note)
Tax Identification No.:
--------------------
Signature Guarantee*:
------------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
10
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The initial outstanding principal amount of this Global Note is
$______. The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global or Definitive Note for an interest in this Global Note, have been
made:
Principal Amount of Signature of
Amount of Increase in this Global Note Authorized Officer
Amount of Decrease Principal Amount of Following Such of Trustee or Note
Date of Exchange in Principal Amount this Global Note Decrease or Increase Custodian
--------------- ------------------ --------------------- -------------------- -------------------
* This schedule should be included only if the Note is issued in global form.
11
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Xxxxxxx & Xxxxx Xxxxxxxxx'x Inc.
0000 Xxxxxx Xxxxxx Xxxxx 000
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
The Bank of New York Mellon ("Trustee")
000 Xxxxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Corporate Trust Administration
Re: 14% Senior Secured Notes due 2013
Reference is hereby made to the Indenture, dated as of September [__],
2008 (the "Indenture"), among Xxxxxxx & Xxxxx Xxxxxxxxx'x Inc., the Guarantors
named therein and the Trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
___________________ (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $_________ in such Note[s] or interests (the "Transfer"), to
_________________ (the "Transferee"), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [_] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the Securities Act of 1933, as amended (the "Securities Act"), and, accordingly,
the Transferor hereby further certifies that the beneficial interest or
Definitive Note is being transferred to a Person that the Transferor reasonably
believes is purchasing the beneficial interest or Definitive Note for its own
account, or for one or more accounts with respect to which such Person exercises
sole investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A and such Transfer is in compliance with
any applicable blue sky securities laws of any state of the United States.
2. [_] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO
REGULATION S. The Transfer is being effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor
hereby further certifies that (i) the Transfer is not being made to a Person in
the United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the
12
Transferee was outside the United States or (y) the transaction was executed in,
on or through the facilities of a designated offshore securities market and
neither such Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States, (ii) no directed
selling efforts have been made in contravention of the requirements of Rule
903(b) or Rule 904(b) of Regulation S under the Securities Act (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Restricted Period, the transfer is not being
made to a U.S. Person or for the account or benefit of a U.S. Person (other than
an Initial Purchaser). Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will be subject to the restrictions on Transfer enumerated in
the Indenture and the Securities Act.
3. [_] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE
PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR
REGULATION S. The Transfer is being effected in compliance with the transfer
restrictions applicable to beneficial interests in Restricted Global Notes and
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) [_] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) [_] such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) [_] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) [_] such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144, Rule 903 or
Rule 904, and the Transferor hereby further certifies that it has not engaged in
any general solicitation within the meaning of Regulation D under the Securities
Act and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Note or Restricted Definitive Notes
and the requirements of the exemption claimed, which certification is supported
by (1) a certificate executed by the Transferee in the form of Exhibit D to the
Indenture and (2) if such Transfer is in respect of a principal amount of Notes
at the time of transfer of less than $250,000, an Opinion of Counsel provided by
the Transferor or the Transferee (a copy of which the Transferor has attached to
this certification), to the effect that such Transfer is in compliance with the
Securities Act. Upon consummation of the proposed transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will be subject to the restrictions on transfer enumerated in the Private
13
Placement Legend printed on the IAI Global Note and/or the Restricted Definitive
Notes and in the Indenture and the Securities Act.
4. [_] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [_] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) [_] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) [_] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
14
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
[INSERT NAME OF TRANSFEROR]
By:
-------------------------------------
Name:
Title:
Dated: _________________
15
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Note (CUSIP), or
(ii) [_] Regulation S Global Note (CUSIP), or
(iii) [_] IAI Global Note (CUSIP), or
(b) [_] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Note (CUSIP), or
(ii) [_] Regulation S Global Note (CUSIP), or
(iii) [_] IAI Global Note (CUSIP), or
(iv) [_] Unrestricted Global Note (CUSIP); or
(b) [_] a Restricted Definitive Note; or
(c) [_] an Unrestricted Definitive Note, in accordance with the terms
of the Indenture.
16
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Xxxxxxx & Xxxxx Xxxxxxxxx'x Inc.
0000 Xxxxxx Xxxxxx Xxxxx 000
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
The Bank of New York Mellon ("Trustee")
000 Xxxxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Corporate Trust Administration
Re: 14% Senior Secured Notes due 2013
Reference is hereby made to the Indenture, dated as of September [__],
2008 (the "Indenture"), among Xxxxxxx & Xxxxx Xxxxxxxxx'x Inc., the Guarantors
named therein and the Trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
________________ (the "Owner") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount of
$_________ in such Note[s] or interests (the "Exchange"). In connection with the
Exchange, the Owner hereby certifies that:
1) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
a) [_] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED
GLOBAL NOTE. In connection with the Exchange of the Owner's beneficial
interest in a Restricted Global Note for a beneficial interest in an
Unrestricted Global Note in an equal principal amount, the Owner
hereby certifies (i) the beneficial interest is being acquired for the
Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to
the Global Notes and pursuant to and in accordance with the Securities
Act of 1933, as amended (the "Securities Act"), (iii) the restrictions
on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest in an Unrestricted
Global Note is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.
b) [_] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection
with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Definitive Note is being acquired for the Owner's
17
own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted
Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and
the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is
being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
c) [_] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with
the Owner's Exchange of a Restricted Definitive Note for a beneficial
interest in an Unrestricted Global Note, the Owner hereby certifies
(i) the beneficial interest is being acquired for the Owner's own
account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and
the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is
being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
d) [_] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange
of a Restricted Definitive Note for an Unrestricted Definitive Note,
the Owner hereby certifies (i) the Unrestricted Definitive Note is
being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Definitive Notes and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend
are not required in order to maintain compliance with the Securities
Act and (iv) the Unrestricted Definitive Note is being acquired in
compliance with any applicable blue sky securities laws of any state
of the United States.
2) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES
a) [_] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection
with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a Restricted Definitive Note with an equal principal
amount, the Owner hereby certifies that the Restricted Definitive Note
is being acquired for the Owner's own account without transfer. Upon
consummation of the proposed Exchange in accordance with the terms of
the Indenture, the Restricted Definitive Note issued will continue to
be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the
Indenture and the Securities Act.
b) [_] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with
the Exchange of the Owner's Restricted Definitive Note for a
beneficial interest in the [CHECK ONE] [_] 144A Global Note [_]
Regulation S Global Note [_] IAI Global Note, with an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer and (ii)
18
such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities Act, and in compliance with any
applicable blue sky securities laws of any state of the United States.
Upon consummation of the proposed Exchange in accordance with the
terms of the Indenture, the beneficial interest issued will be subject
to the restrictions on transfer enumerated in the Private Placement
Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and are dated ______________________.
[INSERT NAME OF TRANSFEROR]
By:
-----------------------------------
Name:
Title:
Dated: _______________
19
EXHIBIT D
GUARANTEE
For value received, the undersigned hereby unconditionally guarantees,
as principal obligor and not only as a surety, to the Holders of Notes the cash
payments in United States dollars of principal of, premium, if any, and interest
on such Notes in the amounts and at the times when due and interest on the
overdue principal, premium, if any, and interest, if any, of such Notes, if
lawful, and the payment or performance of all other Obligations of the Company
under the Indenture (as defined below) or the Notes, to the Holders of Notes and
the Trustee, all in accordance with and subject to the terms and limitations of
the Notes, Article Ten of the Indenture and this Guarantee. This Guarantee will
become effective in accordance with Article Ten of the Indenture and its terms
shall be evidenced therein. The validity and enforceability of this 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 September 24, 2008, among Xxxxxxx & Xxxxx
Xxxxxxxxx'x Inc., a Delaware corporation (the "Company"), the Guarantors party
thereto and The Bank of New York Mellon, as trustee and as collateral agent (as
amended or supplemented, the "Indenture").
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAW OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. Each Guarantor hereby agrees to
submit to the jurisdiction of the courts of the State of New York in any action
or proceeding arising out of or relating to this Guarantee.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
[INSERT NAME OF GUARANTORS]
By:
-----------------------------------
Name:
Title:
