Exhibit 4.2
EXECUTION VERSION
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INDENTURE
Dated as of March 6, 2009
Among
TRINITY ACQUISITION LIMITED,
XXXXXX GROUP HOLDINGS LIMITED,
THE OTHER GUARANTORS NAMED ON THE SIGNATURE PAGES HERETO
and
THE BANK OF NEW YORK MELLON,
as Trustee
12.875% SENIOR NOTES DUE 2016
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions..............................................1
Section 1.02 Other Definitions.......................................24
Section 1.03 Rules of Construction...................................24
Section 1.04 Acts of Holders.........................................25
Section 1.05 Legal Holiday...........................................26
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating; Terms..................................27
Section 2.02 Execution and Authentication............................27
Section 2.03 Registrar and Paying Agent..............................28
Section 2.04 Paying Agent to Hold Money in Trust.....................28
Section 2.05 Holder Lists............................................29
Section 2.06 Transfer and Exchange...................................29
Section 2.07 Replacement Notes.......................................38
Section 2.08 Outstanding Notes.......................................38
Section 2.09 Treasury Notes..........................................39
Section 2.10 Temporary Notes.........................................39
Section 2.11 Cancellation............................................39
Section 2.12 Defaulted Interest......................................39
Section 2.13 CUSIP Numbers...........................................40
Section 2.14 Tax.....................................................40
ARTICLE 3
REDEMPTION
Section 3.01 Notices to Trustee......................................43
Section 3.02 Selection of Notes to Be Redeemed or Purchased..........43
Section 3.03 Notice of Redemption....................................44
Section 3.04 Effect of Notice of Redemption..........................44
Section 3.05 Deposit of Redemption or Purchase Price.................45
Section 3.06 Notes Redeemed or Purchased in Part.....................45
Section 3.07 Optional Redemption.....................................45
Section 3.08 Early Redemption for Tax Reasons........................46
Section 3.09 Mandatory Redemption....................................47
Section 3.10 Offers to Repurchase by Application of Excess Proceeds..47
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ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes........................................49
Section 4.02 Reports and Other Information...........................49
Section 4.03 Corporate Existence; Conduct of Business................50
Section 4.04 Taxes...................................................50
Section 4.05 Maintenance of Properties; Insurance....................51
Section 4.06 Compliance with Laws....................................51
Section 4.07 Limitation on Incurrence of Indebtedness and Issuance
of Disqualified Stock and Preferred Stock...........51
Section 4.08 Liens...................................................53
Section 4.09 Offer to Repurchase Upon Change of Control..............53
Section 4.10 Asset Sales.............................................55
Section 4.11 Sale and Lease-Back Transactions........................56
Section 4.12 Limitation on Restricted Payments.......................57
Section 4.13 Maintenance of Office or Agency.........................59
Section 4.14 Stay, Extension and Usury Laws..........................59
Section 4.15 Dividend and Other Payment Restrictions Affecting
Subsidiaries........................................59
Section 4.16 Maintenance of Listing..................................61
Section 4.17 Ratings for Notes.......................................61
Section 4.18 Additional Guarantees...................................61
Section 4.19 Centre of Main Interests................................61
Section 4.20 Maintenance of Process Agent............................62
Section 4.21 Registration............................................62
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation or Sale of All or Substantially
All Assets..........................................62
Section 5.02 Successor Corporation Substituted.......................64
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.......................................64
Section 6.02 Acceleration............................................66
Section 6.03 Other Remedies..........................................66
Section 6.04 Waiver of Past Defaults.................................67
Section 6.05 Control by Majority.....................................67
Section 6.06 Limitation on Suits.....................................67
Section 6.07 Rights of Holders of Notes to Receive Payment...........67
Section 6.08 Collection Suit by Trustee..............................68
Section 6.09 Restoration of Rights and Remedies......................68
Section 6.10 Rights and Remedies Cumulative..........................68
Section 6.11 Delay or Omission Not Waiver............................68
Section 6.12 Trustee May File Proofs of Claim........................68
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Section 6.13 Priorities..............................................69
Section 6.14 Undertaking for Costs...................................69
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.......................................69
Section 7.02 Rights of Trustee.......................................70
Section 7.03 Individual Rights of Trustee............................71
Section 7.04 Trustee's Disclaimer....................................71
Section 7.05 Notice of Defaults......................................72
Section 7.06 Compensation and Indemnity..............................72
Section 7.07 Replacement of Trustee..................................73
Section 7.08 Successor Trustee by Merger, etc........................73
Section 7.09 Eligibility; Disqualification...........................73
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant
Defeasance..........................................74
Section 8.02 Legal Defeasance and Discharge..........................74
Section 8.03 Covenant Defeasance.....................................74
Section 8.04 Conditions to Legal or Covenant Defeasance..............75
Section 8.05 Deposited Money and Government Securities to Be Held
in Trust; Other Miscellaneous Provisions............76
Section 8.06 Repayment to Issuer.....................................77
Section 8.07 Reinstatement...........................................77
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.....................77
Section 9.02 With Consent of Holders of Notes........................78
Section 9.03 Revocation and Effect of Consents.......................79
Section 9.04 Notation on or Exchange of Notes........................80
Section 9.05 Trustee to Sign Amendments, etc.........................80
Section 9.06 Payment for Consent.....................................80
ARTICLE 10
GUARANTEES
Section 10.01 Guarantee...............................................81
Section 10.02 Limitation on Guarantor Liability.......................82
Section 10.03 Execution and Delivery..................................82
Section 10.04 Subrogation.............................................83
Section 10.05 Benefits Acknowledged...................................83
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Section 10.06 Release of Guarantees...................................83
Section 10.07 Rights of Holders.......................................83
Section 10.08 Certain Waivers.........................................84
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge..............................84
Section 11.02 Application of Trust Money..............................85
ARTICLE 12
MISCELLANEOUS
Section 12.01 Notices.................................................85
Section 12.02 Service of Process......................................87
Section 12.03 Certificate and Opinion as to Conditions Precedent......87
Section 12.04 Statements Required in Certificate or Opinion...........88
Section 12.05 Rules by Trustee and Agents.............................88
Section 12.06 No Personal Liability of Directors, Officers, Employees
and Stockholders....................................88
Section 12.07 Governing Law...........................................88
Section 12.08 Waiver of Jury Trial....................................88
Section 12.09 Force Majeure...........................................89
Section 12.10 No Adverse Interpretation of Other Agreements...........89
Section 12.11 Successors..............................................89
Section 12.12 Severability............................................89
Section 12.13 Counterpart Originals...................................89
Section 12.14 Table of Contents, Headings, etc........................89
EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Certificate of Transfer
Exhibit C Form of Certificate of Exchange
Exhibit D Form of Supplemental Indenture to Be Delivered by Subsequent
Guarantors
Exhibit E Form of Notation of Guarantee
Exhibit F Form of Subordination Agreement
SCHEDULES
Schedule A Guarantors
Schedule 1.01(A) Existing Investments
Schedule 1.01(B) Existing Liens
Schedule 4.02 Reports and Other Information
Schedule 4.11 Sale and Lease-Back Transactions
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INDENTURE, dated as of March 6, 2009, among TRINITY
ACQUISITION LIMITED, a company organized and operated under the laws of England
and Wales (the "Issuer"), XXXXXX GROUP HOLDINGS LIMITED, an exempted company
under the Companies Xxx 0000 of Bermuda ("Holdings"), the other GUARANTORS (as
defined herein) listed on the signature pages hereto and THE BANK OF NEW YORK
MELLON, as Trustee.
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Issuer has duly authorized the creation of an
issue of $500,000,000.00 aggregate principal amount of 12.875% Senior Notes due
2016 (the "Notes"); and
WHEREAS, the Obligors (as defined below) have duly authorized
the execution and delivery of this Indenture.
NOW, THEREFORE, each of the Obligors and the Trustee agree as
follows for the benefit of each other and for the equal and ratable benefit of
the Holders of the Notes.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
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"144A Global Note" means a 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 Depository 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 Guarantor Indebtedness" means Indebtedness of any
other Person existing at the time such other Person is merged with or became a
Guarantor, including, without limitation, Indebtedness incurred in connection
with, or in contemplation of, such other Person merging with or becoming a
Guarantor of such specified Person.
"Acquired Indebtedness" means Indebtedness of any other Person
existing at the time such other Person is merged with or became a Subsidiary,
including, without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or becoming a Subsidiary of
such specified Person.
"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.
"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 such Note; and
(2) the excess, if any, of (a) the present value at such Redemption
Date of (i) the redemption price of such Note at September 1, 2013 (such
redemption price being set forth in Section 3.07(c) hereof), plus (ii) all
required interest payments due on such Note through September 1, 2013
(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 then outstanding principal amount of
such Note.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depository, Euroclear and/or Clearstream that apply to such
transfer or exchange.
"Asset Sale" means:
(1) the sale, conveyance, transfer or other disposition, whether in a
single transaction or a series of related transactions, of property or
assets (including by way of a Sale and Lease-Back Transaction) of Holdings
or any of its Subsidiaries (each referred to in this definition as a
"disposition"); or
(2) the issuance, sale or disposition of Equity Interests of any
Subsidiary of Holdings, whether in a single transaction or a series of
related transactions;
in each case, other than:
(a) any disposition of Cash Equivalents;
(b) the disposition of obsolete, damaged or worn out property or
equipment in the ordinary course of business or any disposition of
inventory (or other assets) held for sale in the ordinary course of
business and dispositions of property no longer used or useful in the
conduct of the business of Holdings and its Subsidiaries (excluding
any such dispositions pursuant to or in contemplation of the
discontinuation of any operation or division);
(c) the disposition of all or substantially all of the assets of
any Obligor in a manner permitted pursuant to the provisions described
under Section 5.01 hereof;
(d) the making of any Restricted Payment or Permitted Investment
that is permitted to be made, and is made, under Section 4.12 hereof,
or the granting of a Permitted Lien pursuant to this Indenture;
(e) any disposition of property or assets or issuance of
securities by Holdings or any of its Wholly-Owned Subsidiaries to
Holdings or any of its other Wholly-Owned Subsidiaries;
(f) to the extent allowable under Section 1031 of the Code, any
exchange of like property (excluding any boot thereon) for use in a
Similar Business;
(g) the lease, assignment or sub-lease of any real or personal
property and the licensing of intellectual property in the ordinary
course of business;
(h) foreclosures on assets or transfers by reason of eminent
domain;
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(i) the disposition of an account receivable in connection with
the collection or compromise thereof;
(j) the disposition of assets or properties with an aggregate
fair market value of not more than $5,000,000.00 for any single
transaction or series of related transactions and not more than
$25,000,000.00 in any fiscal year for all such transactions;
(k) the disposition of any Investment made by WSI pursuant to
clause (9) of the definition of Permitted Investments in the
ordinary course of WSI's business; and
(l) the provision of services by Holdings and its Subsidiaries in
the ordinary course of business.
"Attributable Indebtedness" in respect of a Sale and Lease-Back
Transaction means, as of the time of determination, the present value
(discounted at the implicit interest rate for such Sale and Lease-Back
Transaction, compounded annually) of the total obligations of the lessee for
rental payments during the remaining term of the lease included in such Sale and
Lease-Back Transaction (including any period for which such lease has been
extended).
"Bankruptcy Law" means (1) the United States federal Bankruptcy Code,
Title 11 of the United States Code, as amended from time to time; (2) the UK
Insolvency Xxx 0000 as amended from time to time and any other bankruptcy,
insolvency, liquidation or similar laws of general application; (3) the Xxxxxxx
Xxxxxxxxxx Xxx 0000; and (4) any equivalent law of any other jurisdiction
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular "Person" or "group" (as such terms are
used in Section 13(d)(3) of the Exchange Act), such Person or group will be
deemed to have beneficial ownership of all shares of Capital Stock that such
Person or group has the right to acquire, whether such right is currently
exercisable or is exercisable only after the passage of time. The terms
"Beneficially Own" and "Beneficial Ownership" have a correlative meaning.
"Board of Directors" means:
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(1) with respect to a corporation or company, the board of directors
of the corporation or company or any committee thereof duly authorized to
act on behalf of such board,
(2) with respect to a partnership, the board of directors of the
general partner of the partnership,
(3) with respect to a limited liability company, the managing member
or members or any controlling committee of managing members thereof, and
(4) with respect to any other Person, the board or committee of such
Person serving a similar function as any of the foregoing.
"Business Day" means each day which is not a Legal Holiday.
"Capital Stock" means:
(1) in the case of a corporation or company, any and all shares, other
equivalents of, or interests in (howsoever designated), the equity of such
corporation or company;
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(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock:
(3) in the case of a partnership, unlimited liability company or
limited liability company, any and all partnership or membership interests
(whether general or limited); and
(4) 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.
"Capitalized 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 and reflected as a
liability on a balance sheet (excluding the footnotes thereto) in
accordance with GAAP.
"Cash Equivalents" means:
(1) United States dollars;
(2) (a) euro, or any national currency of any participating member
state of the EMU; or (b) such local currencies held by Holdings or any of
its Subsidiaries from time to time in the ordinary course of business;
(3) securities issued or directly and fully and unconditionally
guaranteed by the U.S. government or any agency or instrumentality thereof
the securities of which are unconditionally guaranteed as a full faith and
credit obligation of such government with maturities of 24 months or less
from the date of acquisition;
(4) certificates of deposit, time deposits and eurodollar time
deposits with maturities of one year or less from the date of acquisition,
bankers' acceptances with maturities not exceeding one year and overnight
bank deposits, in each case with any commercial bank having tangible equity
capital of not less than $500,000,000.00;
(5) repurchase obligations for underlying securities of the types
described in clauses (3) and (4) entered into with any financial
institution meeting the qualifications specified in clause (4) above;
(6) commercial paper, marketable short-term money market and similar
securities rated at least P-1 by Xxxxx'x or at least A-1 by S&P (or such
similar rating by at least one "nationally recognized statistical rating
organization" (as defined in Rule 436 under the Securities Act)) and in
each case maturing within 12 months after the date of creation thereof; and
(7) investment funds investing at least 95% of their assets in
securities of the types described in clauses (1) through (6) above.
Notwithstanding the foregoing, Cash Equivalents shall include amounts
denominated in currencies other than those set forth in clauses (1) and (2)
above; provided that such amounts are converted into any currency listed in
clauses (1) and (2) as promptly as practicable and in any event within 10
Business Days following the receipt of such amounts.
"Centre of Main Interests" has the meaning given to it in Article 3(1)
of the Council Regulation (EC) No 1346/2000 of May 29, 2000 on Insolvency
Proceedings.
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"Change of Control" means the occurrence of any of the following:
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(1) the sale, lease or transfer, in one or a series of related
transactions, of all or substantially all of the assets of the Issuer and
its Subsidiaries or Holdings and its Subsidiaries, in each case taken as a
whole, to any Person;
(2) (a) the acquisition by any "Person" or "group" (within the meaning
of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any
successor provision), including any group acting for the purpose of
acquiring, holding or disposing of securities (within the meaning of Rule
13d-5(b)(1) under the Exchange Act), in a single transaction or in a
related series of transactions, by way of merger, amalgamation,
consolidation or other business combination or purchase of any shares of
Capital Stock, after giving effect to which such Person or group is or
becomes the Beneficial Owner of Capital Stock of Holdings representing
during any Holding Period, 35% or more, and otherwise, 50% or more of the
total voting or economic power of the Voting Stock of Holdings or (b) such
Person or group has the right or ability, directly or indirectly, by
agreement, voting power or otherwise to designate and cause the election of
a majority of the Board of Directors of Holdings;
(3) Holdings shall cease to own, directly or indirectly, 100% of the
outstanding Equity Interests of any of the Issuer, WNA or Xxxxxx Xxxxx
Ltd., a company organized under the laws of England and Wales;
(4) Holdings is liquidated or dissolved or adopts a plan of
liquidation or dissolution that is not a Default or Event of Default
pursuant to Section 6.01(f) or (g);
(5) the occurrence of a "change of control" (however defined) under
any Material Indebtedness; or
(6) the first day on which a majority of the members of the Board of
Directors of Holdings are not Continuing Directors.
"Clearstream" means Clearstream Banking, Societe Anonyme.
"Code" means the Internal Revenue Code of 1986, as amended.
"Companies Xxx 0000" means the English Companies Xxx 0000, as amended
from time to time.
"Consolidated Depreciation and Amortization Expense" means with
respect to Holdings and its Subsidiaries for any period, the total amount
of depreciation and amortization expense, including the amortization of
deferred financing fees of Holdings and its Subsidiaries for such period on
a consolidated basis and otherwise determined in accordance with GAAP.
"Consolidated EBITDA" means, with respect to Holdings and its
Subsidiaries for any period, the Consolidated Net Income of Holdings and
its Subsidiaries for such period (in each case, without duplication):
(1) increased by:
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(a) provision for taxes based on income, including, without
limitation, state, franchise and similar taxes and foreign withholding
taxes of Holdings and its Subsidiaries paid or accrued during such
period deducted in computing Consolidated Net Income; plus
(b) Consolidated Interest Expense of Holdings and its
Subsidiaries for such period to the extent the same was deducted in
calculating such Consolidated Net Income; plus
(c) Consolidated Depreciation and Amortization Expense of
Holdings and its Subsidiaries for such period to the extent the same
were deducted in computing Consolidated Net Income; plus
(d) any expenses or charges (other than Consolidated Depreciation
and Amortization Expense) related to any Equity Offering, Permitted
Investment, acquisition, disposition, recapitalization or the
incurrence of Indebtedness permitted to be incurred by this Indenture
(including a refinancing thereof) (whether or not successful),
including (i) such fees, expenses or charges related to the offering
of the Notes and the Credit Facilities and (ii) any amendment or other
modification of the Notes, and, in each case, deducted in computing
Consolidated Net Income; plus
(e) any other non-cash charges, including any write offs or write
downs, reducing Consolidated Net Income for such period (other than
any such non-cash charges that represent an accrual or reserve for
potential cash items in any future period) to the extent deducted in
computing Consolidated Net Income; plus
(f) any costs incurred in connection with (i) acquisitions other
than the Merger in an aggregate amount with respect to any such
acquisition not to exceed 5% of the aggregate consideration for such
acquisition and (ii) the Merger in an aggregate not to exceed
$50,000,000.00, in each case, to the extent deducted in computing
Consolidated Net Income; plus
(g) any extraordinary losses for such period to the extent
deducted in computing Consolidated Net Income; plus
(h) any non-recurring or restructuring charges for such period to
the extent deducted in computing Consolidated Net Income (provided,
that amounts added pursuant to this clause (h) for any period shall
not exceed 10% of the amount of Consolidated EBITDA for such period
computed in accordance with this definition but before giving effect
to the amounts added pursuant to this clause (h) for such period);
(2) decreased by:
(a) non-cash gains increasing Consolidated Net Income of such Person
for such period, excluding any non-cash gains to the extent they represent
the reversal of an accrual or reserve for a potential cash item that
reduced Consolidated EBITDA in any prior period; and
(b) any extraordinary or non-recurring gains increasing Consolidated
Net Income of such Person for such period;
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provided that Consolidated EBITDA for such period shall be adjusted as follows
(without duplication) as applicable;
(A) any net gain or loss resulting in such period from Swap Contracts
that are not accounted for as fair value xxxxxx under the Statement of
Financial Accounting Standards No. 133 or International Accounting Standard
No. 39 shall be excluded;
(B) any net gain or loss resulting in such period from currency
translation gains or losses related to (i) currency remeasurements of
Indebtedness (including any net loss or gain resulting from hedge
agreements for currency exchange risk) and (ii) United Kingdom pension
plans, shall be excluded;
(C) the cumulative effect of a change in accounting principles during
such period shall be excluded;
(D) any after-tax effect of income (loss) from disposed or
discontinued operations and any net after-tax gains or losses on disposal
of disposed, abandoned or discontinued operations shall be excluded;
(E) any after-tax effect of gains or losses (less all fees and
expenses relating thereto) attributable to asset dispositions other than in
the ordinary course of business, as determined in good faith by Holdings or
the Issuer, shall be excluded;
(F) the Consolidated Net Income for such period of any Person that is
not a Subsidiary of Holdings, or that is accounted for by the equity method
of accounting, shall be excluded; provided that Consolidated Net Income of
Holdings shall be increased by the amount of dividends or distributions or
other payments that are actually paid in cash (or to the extent converted
into cash) to the referent Person or a Subsidiary thereof in respect of
such period;
(G) effects of adjustments in Holdings' financial statements pursuant
to GAAP resulting from the application of purchase accounting, net of
taxes, shall be excluded;
(H) any after-tax effect of income (loss) from the early
extinguishment of Indebtedness or Swap Contracts or other derivative
instruments shall be excluded; and
(I) any impairment charge or asset write-off, in each case, pursuant
to GAAP and the amortization of intangibles arising pursuant to GAAP shall
be excluded.
"Consolidated Funded Indebtedness" means, as of any date of determination,
the sum of (a) the aggregate principal amount of Indebtedness of Holdings and
its Subsidiaries outstanding as of such date, in the amount that would be
reflected on the balance sheet of Holdings and its Subsidiaries prepared as of
such date on a consolidated basis in accordance with GAAP, plus (b) the
aggregate principal amount of obligations for borrowed money that are
outstanding as of such date of Persons other than Holdings and its Subsidiaries,
to the extent guaranteed by Holdings or any of its Subsidiaries.
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"Consolidated Interest Expense" means, with respect to Holdings and its
Subsidiaries for any period, without duplication, the sum of:
(1) consolidated interest expense of Holdings and its Subsidiaries for
such period, to the extent such expense was deducted (and not added back)
in computing Consolidated Net Income (including (a) amortization of
original issue discount resulting from the issuance of Indebtedness at less
than par, (b) all commissions, discounts and other fees and charges owed
with respect to letters of credit or bankers acceptances, (c) non-cash
interest payments (but excluding any non-cash interest expense attributable
to the movement in the xxxx to market valuation of Swap Contracts or other
derivative instruments pursuant to GAAP), (d) the interest component of
Capitalized Lease Obligations, and (e) net payments, if any, pursuant to
interest rate Swap Contracts with respect to Indebtedness, and excluding
(i) amortization of deferred financing fees, debt issuance costs,
commissions, fees and expenses, and (ii) any expensing of bridge,
commitment and other financing fees; less
(2) interest income for such period.
For purposes of this definition, interest on a Capitalized Lease Obligation
shall be deemed to accrue at an interest rate reasonably determined by Holdings
and its Subsidiaries to be the rate of interest implicit in such Capitalized
Lease Obligation in accordance with GAAP.
"Consolidated Leverage Ratio" means at any time the ratio of
Consolidated Funded Indebtedness at such time to Consolidated EBITDA for the
most recently ended four fiscal quarters for which financial statements have
been (or are required to be) delivered to the Holders in accordance with
Section 4.02(a) or (b). In the event that Holdings or any of its
Subsidiaries incurs, assumes, guarantees or redeems any Indebtedness or
issues or redeems Disqualified Stock subsequent to the commencement of the
period for which the Consolidated Leverage Ratio is being calculated but on or
prior to or simultaneously with the event for which the calculation of the
Consolidated Leverage Ratio is made (the "Calculation Date"), then the
Consolidated Leverage Ratio shall be calculated giving pro forma effect to such
incurrence, assumption, guarantee or redemption of Indebtedness, or such
issuance or redemption of Disqualified Stock, as if the same had occurred
at the beginning of the applicable four-quarter period (the "reference
period").
For purposes of making the computation referred to above, distributions,
dividends, Investments, acquisitions, dispositions, mergers and consolidations
that have been made by Holdings or any of its Subsidiaries during the reference
period or subsequent to the reference period and on or prior to or
simultaneously with the Calculation Date shall be given pro forma effect as if
all such distributions, dividends, Investments, acquisitions, dispositions,
mergers and consolidations (and all related financing transactions) had occurred
on the first day of the reference period. Additionally, if since the beginning
of such reference period any Person that subsequently became a Subsidiary or was
merged with or into Holdings or any of its Subsidiaries since the beginning of
such reference period shall have made any distribution, dividend, Investment,
acquisition, disposition, merger or consolidation that would have required
adjustment pursuant to this definition, then the Consolidated Leverage Ratio
shall be calculated giving pro forma effect thereto for such reference period as
if such distribution, dividend, Investment, acquisition, disposition, merger or
consolidation (and all related financing transactions) had occurred at the
beginning of the reference period.
For purposes of this definition, whenever pro forma effect is to be given
to a transaction, the pro forma calculations shall be made in accordance with
Regulation S-X under the Securities Act. If any Indebtedness bears a floating
rate of interest and is being given pro forma effect, the interest on such
Indebtedness shall be calculated as if the rate in effect on the Calculation
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Date had been the applicable rate for the entire period (taking into account any
Swap Contracts applicable to such Indebtedness). "Consolidated Net Income"
means, with respect to Holdings and its Subsidiaries for any period, the
aggregate of the Net Income, of Holdings and its Subsidiaries for such period,
on a consolidated basis, and otherwise determined in accordance with GAAP.
"Continuing Directors" means, as of any date of determination,
individuals who
(1) were members of such Board of Directors on the Issue Date; or
(2) were 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.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 12.01 hereof or such other address as to which the
Trustee may give notice to the Holders and the Issuer.
"Credit Agreement" means that certain $1,000,000,000.00 Credit
Agreement, dated as of October 1, 2008, among WNA, Holdings, Bank of America,
N.A., as Administrative Agent, and each lender from time to time party thereto
and any amendments, supplements, modifications, extensions, renewals or
restatements thereof.
"Credit Facilities" means, with respect to any Obligor, the Credit
Agreement, one or more debt facilities or other financing arrangements
(including, without limitation, commercial paper facilities or indentures)
providing for revolving credit loans, term loans, letters of credit or other
long-term indebtedness, including any notes, mortgages, guarantees, collateral
documents, instruments and agreements executed in connection therewith, incurred
pursuant to Section 4.07(b)(i) and any amendments, supplements, modifications,
extensions, renewals, restatements or refundings thereof and any indentures or
credit facilities or commercial paper facilities that replace, refund or
refinance any part of the loans, notes, other credit facilities or commitments
thereunder in each case permitted under Section 4.07(b)(i) hereof whether by the
same or any other agent, lender or group of lenders.
"Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"Debt Rating" means, as of any date of determination, the rating as
determined by any Rating Agency (if by more than one Rating Agency,
collectively, the "Debt Ratings"), as applicable, of the Issuer's non credit
enhanced, senior unsecured long term debt.
"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.
"Default Interest Rate" means a rate equal to 2% per annum.
"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, 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.
9
"Depository" 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 Depository with respect to the Notes, and any and all successors thereto
appointed as Depository hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Designated Change of Control" means any event constituting a Change
of Control pursuant to paragraph 2(a) of the definition thereof so long as
after giving effect thereto the Person or group referred to therein does not
become the Beneficial Owner of Capital Stock of Holdings representing 50% or
more of the total voting or economic power of the Voting Stock of Holdings.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock of such Person which, by its terms, or by the terms of any security into
which it is convertible or for which it is putable or exchangeable, or upon
the happening of any event, matures or is mandatorily redeemable pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof (other than solely as a result of a change of control or asset
sale), in whole or in part, in each case prior to the date that is 91 days
after the earlier of the maturity date of the Notes or the date the Notes are
no longer outstanding; provided, however, that if such Capital Stock is issued
to any plan for the benefit of employees of Holdings or its Subsidiaries or by
any such plan to such employees, such Capital Stock shall not constitute
Disqualified Stock solely because it may be required to be repurchased by
Holdings or its Subsidiaries in order to satisfy applicable statutory or
regulatory obligations.
"EMU" means economic and monetary union as contemplated in the
Treaty on European Union.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock, but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock.
"Equity Offering" means any public or private sale of common stock or
Preferred Stock of Holdings (excluding Disqualified Stock), other than:
(1) public offerings with respect to Holdings common stock registered
on Form S-8; and
(2) issuances to any Subsidiary of Holdings.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with Holdings, is treated as a single employer
under Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code
for purposes of provisions relating to Section 412 of the Code), as amended from
time to time, and the regulations promulgated thereunder.
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by Holdings or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by Holdings or any ERISA Affiliate
from a Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the treatment
of a Pension Plan amendment as a termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
10
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon Holdings or
any ERISA Affiliate.
"Euroclear" means Euroclear S.A./N.V., as operator of the Euroclear
system.
"Exchange Act" means the U.S. Securities Exchange Act of 1934,
as amended, and the rules and regulations of the SEC promulgated thereunder.
"Existing Bridge Loan" means that certain 364-Day Credit Agreement
dated as of October 1, 2008 between Holdings, WNA, the lenders party thereto,
Bank of America, N.A., as administrative agent, Banc of America Securities LLC,
X.X. Xxxxxx Securities Inc., Suntrust Xxxxxxxx Xxxxxxxx, Inc., and the Royal
Bank of Scotland, PLC as Book Managers, and Bank of America Securities LLC as
Sole Lead Arranger.
"Existing Notes" means the 5.125% Senior Notes due 2010, the 5.625%
Senior Notes due 2015 and the 6.20% Senior Notes due 2017 issued by WNA.
"euro" means the single currency of participating member states of
the EMU.
"Financial Officer" means, with respect to any Obligor, the chief
executive officer, chief financial officer, principal accounting officer,
treasurer or controller thereof, as applicable.
"Financing Documents" means collectively, the Indenture, the Note
Purchase Agreement, the Notes, the Registration Rights Agreement, any
supplemental indenture and all certificates, instruments, and other documents
made or delivered in connection herewith and therewith.
"GAAP" means generally accepted accounting principles in the United
States which are in effect on the Issue Date.
"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, substantially in the form of Exhibit A hereto, issued
in accordance with Article 2 hereof.
"Governmental Authority" means the government of the United States,
United Kingdom or any other nation, or of any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government where appropriate (including any supra-national bodies
such as the European Union or the European Central Bank).
"Government Securities" means securities that are:
(1) direct obligations of the United States of America for the timely
payment of which its full faith and credit is pledged; or
11
(2) obligations of a 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, and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act), as custodian with respect
to any such Government Securities or a specific payment of principal of or
interest on any such Government Securities held by such custodian for the
account of the holder of such depository receipt; provided that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the Government Securities or the specific payment
of principal of or interest on the Government Securities evidenced by such
depository receipt.
"GSMP Group" means, collectively, (i) GSMP V Onshore International,
Ltd., GSMP V Offshore International, Ltd. and GSMP V Institutional
International, Ltd., (ii) any other Affiliate of GS Mezzanine Partners V
Institutional, L.P. or The Xxxxxxx Xxxxx Group, Inc., and (iii) any
Subsidiaries of the foregoing.
"GSMP Purchasers" has the meaning set forth in the Note Purchase
Agreement.
"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 letters of credit and reimbursement
agreements in respect thereof), of all or any part of any Indebtedness or other
obligations, as applicable, or the act of making a guarantee in accordance with
the foregoing.
"Guarantee" means the guarantee by the Guarantors of the Issuer's
Obligations under this Indenture.
"Guarantor" means each Person that guarantees the Notes in accordance
with the terms of this Indenture and any other Person that becomes a party as a
Guarantor to this Indenture pursuant to a supplemental indenture in the form of
Exhibit D hereto.
"Holder" means the Person in whose name a Note is registered on the
Registrar's books.
"Holding Company" means each of Holdings, WNA and each other
Subsidiary of Holdings (other than the Issuer) that is a direct or indirect
parent of either the Issuer or WNA.
"Holding Period" means any period during which the GSMP Group
constitutes the Required Holders; provided, however, on the Issue Date a Holding
Period shall be in effect; and provided, further, that in no event shall the
Trustee be charged with knowledge of such Holding Period unless it has received
an Officer's Certificate, on which the Trustee shall be fully protected in
relying, from the Issuer that certifies such Holding Period has ended or
commenced; provided, further, that Trustee shall be fully protected in relying
upon such Officer's Certificate until it is otherwise notified by the Issuer in
the form of a subsequent Officer's Certificate.
12
"Holdings" means Xxxxxx Holdings Group Limited, an exempted
company under the Companies Xxx 0000 of Bermuda.
"ILS" means reinsurance related debt securities that are
underwritten and/or initially purchased for the purpose of placement with or
distribution to third parties.
"Indebtedness" of any Person means, without duplication,
------------
(1) all obligations of such Person for borrowed money or with respect
to deposits or advances of any kind,
(2) all obligations of such Person evidenced by bonds, debentures,
notes or similar instruments,
(3) all obligations of such Person upon which interest charges are
customarily paid,
(4) all obligations of such Person under conditional sale or other
title retention agreements relating to property acquired by such Person,
(5) all obligations of such Person in respect of the deferred purchase
price of property or services (excluding current accounts payable incurred
in the ordinary course of business),
(6) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on property owned or acquired by such Person, whether
or not the Indebtedness secured thereby has been assumed (the amount of
such Indebtedness shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof,
in respect of which such Lien is granted or, if not stated or determinable,
the maximum reasonably anticipated liability in respect thereof as
determined by the Person who granted such Lien in good faith),
(7) all guarantees by such Person of Indebtedness of others,
(8) all Capital Lease Obligations of such Person,
(9) all obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit and letters of guaranty, and
(10) all obligations, contingent or otherwise, of such Person in
respect of bankers' acceptances.
For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture (other than a joint
venture that is itself a corporation or limited liability company) in which
such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. The amount of
any net obligation under any Swap Contract, to the extent otherwise
constituting Indebtedness, on any date shall be deemed to be the Swap
Termination Value thereof as of such date.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
13
"Interest Payment Date" means March 31, June 30, September 30 and
December 31 of each year to stated maturity.
"Investment" means, with respect to any Person, any investment by such
Person in other Persons (including Affiliates) in the form of loans
(including guarantees), advances or capital contributions (excluding
accounts receivable, trade credit, advances to customers, in each case made
in the ordinary course of business), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities issued
by any other Person and investment that is required by GAAP to be
classified on the balance sheet (excluding the footnotes) of such Person in
the same manner as the other investments included in this definition to the
extent such transactions involve the transfer of cash or other property.
"Issue Date" means March 6, 2009.
"Issuer" means Trinity Acquisition Limited, a company
organized and operated under the laws of England and Wales.
"Issuer Order" means a written request or order signed on
behalf of the Issuer by an Officer of the Issuer.
"Laws" means, collectively, all international, foreign,
Federal, state and local statutes, treaties, rules, guidelines, regulations,
ordinances, codes and administrative or judicial precedents or authorities,
including the interpretation or administration thereof by any Governmental
Authority charged with the enforcement, interpretation or administration
thereof, and all applicable administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any Governmental
Authority, in each case whether or not having the force of law.
"Legal Holiday" means a Saturday, a Sunday or a day on which
commercial banking institutions are not required to be open in the State of New
York, London, England, or the city in which the Corporate Trust Office of the
Trustee or Paying Agent is located.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge, or
preference, priority or other security interest or preferential arrangement in
the nature of a security interest of any kind or nature whatsoever (including
any conditional sale or other title retention agreement, any easement, right of
way or other encumbrance on title to real property, and any financing lease
having substantially the same economic effect as any of the foregoing).
"Material Adverse Effect" means (a) a material adverse change
in, or a material adverse effect upon, the business, financial position,
property or results of operations of Holdings and its Subsidiaries taken as a
whole; (b) a material impairment of the ability of any Obligor to perform its
obligations under any Financing Document to which it is a party; or (c) a
material adverse effect upon the legality, validity, binding effect or
enforceability against any Obligor of any Financing Document to which it is a
party.
"Material Indebtedness" means Indebtedness (other than the
Notes) of any one or more of Holdings and its Subsidiaries in an aggregate
principal amount exceeding $30,000,000.00.
"Material Subsidiary" means any Subsidiary of Holdings whose
gross assets or Consolidated EBITDA are equal to or exceed 5% of the total gross
assets or Consolidated EBITDA, as applicable, of Holdings, in each case
determined on the basis of the most recently ended four fiscal quarters for
14
which financial statements have been (or are required to be) delivered to the
Holders in accordance with Section 4.02(a) or (b).
"Material Swap Obligations" means obligations in respect of
one or more Swap Contracts with an aggregate Swap Termination Value exceeding
$30,000,000.00.
"Merger" means the merger that occurred on October 1, 2008 of
Hilb Rogal & Xxxxx Company, a Virginia corporation (the "Acquired Company") with
and into Hermes Acquisition Corp., a Virginia corporation (the "Acquisition
Subsidiary"), with the Acquisition Subsidiary being the surviving corporation,
pursuant to the Merger Agreement dated as of June 7, 2008 (the "Merger
Agreement") among Holdings, Acquisition Subsidiary, and Acquired Company.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor to
its rating agency business.
"Multiemployer Plan" means any employee benefit plan as
defined in Section 4001(a)(3) of ERISA, to which Holdings or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions (excluding any foreign
plans of Holdings or any of its ERISA Affiliates).
"Net Income" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of Preferred Stock dividends.
"Net Proceeds" means the aggregate cash proceeds received by
Holdings or any of its Subsidiaries in respect of any Asset Sale, including any
cash received upon any Asset Sale, net of the direct costs relating to such
Asset Sale, including legal, accounting and investment banking fees, and
brokerage and sales commissions, any relocation expenses incurred as a result
thereof, taxes paid or payable as a result thereof (after taking into account
any available tax credits or deductions and any tax sharing arrangements),
amounts required to be applied to the repayment of principal, premium, if any,
and interest on the Credit Facilities (or other Indebtedness that is secured by
any Permitted Liens if and to the extent the proceeds of an Asset Sale in
respect of the assets that are subject to such Permitted Liens are required to
be utilized to repay such Indebtedness) required (other than required by clause
(i) of Section 4.10(b) hereof) to be paid as a result of such transaction and
any deduction of appropriate amounts to be provided by Holdings or any of its
Subsidiaries as a reserve in accordance with GAAP against any liabilities
associated with the asset disposed of in such transaction and retained by
Holdings or any of its Subsidiaries after such sale or other disposition
thereof, including pension and other post-employment benefit liabilities and
liabilities related to environmental matters or against any indemnification
obligations associated with such transaction.
"Net Worth" means, as of any date, (1) the amount of total
assets of Holdings and its Subsidiaries minus (2) the amount of total
liabilities of Holdings and its Subsidiaries, in each case, that would be
reflected on a balance sheet prepared as of such date on a consolidated basis in
accordance with GAAP.
"Non-Obligor" means any Subsidiary of Holdings that is not an
Obligor.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Purchase Agreement" means the Note Purchase Agreement,
dated as of February 10, 2009, by and among the Issuer, the Guarantors, GSMP V
15
Onshore International, Ltd., GSMP V Offshore International, Ltd., GSMP V
Institutional International, Ltd. and GS Mezzanine Partners V Institutional L.P.
"Notes" is defined in the Recitals.
"Obligations" means any principal, interest (including any
interest accruing subsequent to the filing of a petition in bankruptcy,
reorganization or similar proceeding at the rate provided for in the
documentation with respect thereto, whether or not such interest is an allowed
claim under applicable state, federal or foreign law), penalties, fees,
indemnifications, reimbursements (including reimbursement obligations with
respect to letters of credit and banker's acceptances), damages and other
liabilities, and guarantees of payment of such principal, interest, penalties,
fees, indemnifications, reimbursements, damages and other liabilities, payable
under the documentation governing any Indebtedness.
"Obligors" means the Issuer and the Guarantors.
"Officer" means the chairman of the board, the chief executive
officer, the chief financial officer, the chief responsible officer, the chief
operating officer, the president, any executive vice president, senior vice
president or vice president, the treasurer, the secretary or (in respect of any
Person organized under the laws of England and Wales) a director.
"Officer's Certificate" means a certificate signed on behalf
of the Issuer by an Officer of the Issuer.
"Opco Guarantor" means each Guarantor that is a Subsidiary of
Holdings that is not a Holding Company.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an employee of or
counsel to any Obligor.
"Participant" means, with respect to the Depository, Euroclear
or Clearstream, a Person who has an account with the Depository, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(1) Liens imposed by law for taxes that are not yet due or
are being contested in compliance with Section 4.04;
(2) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business;
(3) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(4) deposits and other Liens (limited solely to Liens on
consideration owing under the contracts and other like
obligations the performance of which is secured thereby) to
secure the performance of bids, trade contracts, leases,
16
statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the
ordinary course of business;
(5) judgment liens in respect of judgments that do not
constitute an Event of Default under Section 6.01(e); and
(6) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property imposed by law or arising
in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value
of the affected property or interfere with the ordinary conduct
of business of Holdings or any of its Subsidiaries;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(1) any Investment by Holdings or any of its Wholly-Owned
Subsidiaries in Holdings or any of the other Wholly-Owned
Subsidiaries of Holdings;
(2) any Investment in cash and Cash Equivalents;
(3) any Investment by Holdings or any of its Wholly-Owned
Subsidiaries in a Person that is engaged in a Similar Business so
long as:
(a) no Default or Event of Default shall have occurred
or be continuing or will result therefrom;
(b) after giving effect to such Investment, the Issuer
could incur at least $1.00 of additional Indebtedness
pursuant to the Consolidated Leverage Ratio test described
in Section 4.07(a) hereof;
(c) such Person is or becomes a Subsidiary of Holdings
on or prior to the consummation of such Investment, and at
least 90% of the outstanding Equity Interests of which
(other than directors' qualifying shares) shall at all times
be owned by Holdings or a Wholly-Owned Subsidiary of
Holdings;
(4) any Investment in securities or other assets not
constituting cash or Cash Equivalents and received in connection
with an Asset Sale made pursuant to the provisions of Section
4.10 hereof or any other disposition of assets not constituting
an Asset Sale;
(5) any Investment (a) existing on the Issue Date set forth
on Schedule 1.01(A) and (b) in Gras Savoye & Cie, France,
pursuant to "put" agreements and "call" agreements in place on
the Issue Date (without any amendment or modification of any such
agreement that would increase the required amount or price of
such Investment or would otherwise be materially adverse to the
interests of the Holders);
(6) any Investment acquired by Holdings or any of its
Subsidiaries:
(a) in exchange for any other Investment or accounts
receivable held by Holdings or any such Subsidiary in
connection with or as a result of a bankruptcy, workout,
reorganization or recapitalization of the issuer of such
other Investment or accounts receivable; or
17
(b) as a result of a foreclosure by Holdings or any of
its Subsidiaries with respect to any secured Investment or
other transfer of title with respect to any secured
Investment in default;
(7) guarantees permitted by this Indenture;
(8) subject to compliance with applicable Law, loans and
advances to officers, directors and employees for reasonable and
customary business related travel expenses, moving expenses and
other similar expenses, in each case incurred in the ordinary
course of business consistent with past practices;
(9) Investments by WSI in any ILS in the ordinary course of
WSI's business in an aggregate amount not to exceed
$250,000,000.00 at any one time outstanding;
(10) any Investments by Holdings or any of its Subsidiaries
acquired in exchange for Capital Stock (other than Disqualified
Capital Stock) of Holdings; and
(11) other Investments not exceeding (i) $50,000,000.00 in
the aggregate for any fiscal year plus (ii) up to $25,000,000.00
of the amount available pursuant to clause (i) above for the
preceding fiscal year, but unused in such preceding fiscal year
(the amounts in clause (i) above being deemed to be utilized
first in any fiscal year prior to the utilization of any
carryover amount provided in this clause (ii)).
"Permitted Liens" means, with respect to any Person:
(1) Permitted Encumbrances;
(2) any Lien on any property or asset of Holdings or any of
its Subsidiaries existing on the date hereof and set forth in
Schedule 1.01(B) hereto; provided that (a) such Lien shall not
apply to any other property or asset of Holdings or any
Subsidiary and (b) such Lien shall secure only those obligations
which it secures on the date hereof and extensions, renewals and
replacements thereof that do not increase the outstanding
principal amount thereof;
(3) any Lien existing on any property or asset prior to the
acquisition thereof by Holdings or any Subsidiary of Holdings
after the date hereof or existing on any property or asset of any
Person that becomes a Subsidiary of Holdings after the date
hereof prior to the time such Person becomes a Subsidiary of
Holdings; provided that (a) such Lien is not created in
contemplation of or in connection with such acquisition or such
Person becoming a Subsidiary of Holdings, as the case may be, (b)
such Lien shall not apply to any other property or assets of
Holdings or any Subsidiary of Holdings, (c) such Lien shall
secure only those obligations which it secures on the date of
such acquisition or the date such Person becomes a Subsidiary of
Holdings, as the case may be, and extensions, renewals and
replacements thereof that do not increase the outstanding
principal amount thereof, and (d) such Liens secure only
Indebtedness permitted to be incurred pursuant to Section
4.07(b)(iii);
(4) Liens on fixed or capital assets acquired, constructed
or improved by Holdings or any of its Subsidiaries; provided that
(a) such security interests secure only Indebtedness incurred to
finance the acquisition, construction or improvement of such
fixed or capital assets (including Capital Lease Obligations and
any Indebtedness assumed in connection with the acquisition of
such assets) and extensions, renewals and replacements thereof
that do not increase the outstanding principal amount thereof,
(b) such security interests and the Indebtedness secured thereby
18
are incurred prior to or within 180 days after such acquisition
or the completion of such construction or improvement, (c) the
Indebtedness secured thereby does not exceed the cost of
acquiring, constructing or improving such fixed or capital assets
and (d) such security interests shall not apply to any other
property or assets of Holdings or any Subsidiary of Holdings;
(5) charges or Liens in favor of a regulatory authority or a
third party, in each case, as contemplated by the rules or
regulations issued by a regulatory authority and with which the
applicable Person is required to comply in order to remain
licensed to conduct its business;
(6) Liens over credit balances created in favor of any bank
in order to facilitate the operation of bank accounts on a net
balance basis or in connection with any BACS facility used in the
ordinary course of business;
(7) Liens comprised by escrow arrangements entered into in
connection with assets sales, transfers or other dispositions
permitted by Section 4.10;
(8) Liens securing Indebtedness permitted to be incurred
pursuant to Section 4.07(b)(ix); provided that the total
Indebtedness so secured by Liens does not exceed $50,000,000.00
at any one time outstanding; and
(9) other Liens; provided that the sum of the aggregate
principal amount of obligations secured by such Liens, plus the
aggregate amount of Attributable Indebtedness in respect of Sale
and Lease-Back Transactions permitted by Section 4.11(c) shall
not, at any time, exceed 10% of Net Worth.
"Person" means any individual, corporation, limited liability
company, company, partnership, joint venture, association, joint stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Pension Plan" means any "employee pension benefit plan" (as
such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan,
that is subject to Title IV of ERISA and is sponsored or maintained by Holdings
or any ERISA Affiliate or to which Holdings or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years (excluding any foreign
pension plans of Holdings or any of its ERISA Affiliates).
"Preferred Stock" means any Equity Interest with preferential
rights of payment of dividends or as to the distribution of assets upon
liquidation, dissolution, or winding up.
"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.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Rating Agencies" means Xxxxx'x and S&P or if Xxxxx'x or S&P
or both shall not make a rating on the Notes publicly available, two or more
"nationally recognized statistical rating organizations" (as defined in Rule 436
under the Securities Act), selected by the Issuer or Holdings which shall be
substituted for Xxxxx'x or S&P or both, as the case may be.
19
"Record Date" for the interest payable on any applicable
Interest Payment Date means March 15, June 15, September 15 or December 15
(whether or not a Business Day) next preceding such Interest Payment Date.
"Refinancing" means the repayment of a portion of the
principal amount of the Existing Bridge Loan and the payment of related
transaction fees and expenses on the Issue Date with the proceeds of the
issuance of the Notes.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of the Issue Date among the GSMP Group and the Obligors.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Note" permanent Global Note 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
Depository or its nominee, that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 903.
"Regulation S-X" means Regulation S-X promulgated under the
Securities Act as from time to time in effect and any successor regulation to
all or a portion thereof.
"Reportable Event" means any of the events set forth in
Section 4043(c) of ERISA, other than events for which the 30-day notice
requirement has been waived under the applicable regulations.
"Required Holders" means holders of at least a majority in
aggregate principal amount of the then outstanding Notes. Sections 2.08 and 2.09
hereof shall determine which Notes are considered to be "outstanding" for
purposes of this definition.
"Responsible Officer" means, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such Person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Period" means the 40-day distribution compliance
period as defined in Regulation S.
"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.
20
"Rule 904" means Rule 904 promulgated under the Securities
Act.
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc., and any successor to its rating agency business.
"Sale and Lease-Back Transaction" means any arrangement
providing for the leasing by Holdings or any of its Subsidiaries of any real or
tangible personal property, which property has been or is to be sold or
transferred by Holdings or such Subsidiary to a third Person in contemplation of
such leasing.
"SEC" means the U.S. Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of Holdings or
any of its Subsidiaries secured by a Lien permitted to be incurred in accordance
with Sections 4.07 and 4.08 hereof.
"Securities Act" means the U.S. Securities Act of 1933, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Similar Business" means any business conducted or proposed to
be conducted by Holdings and its Subsidiaries on the Issue Date or any business
that is similar, reasonably related, incidental or ancillary thereto.
"Stated Maturity" means, with respect to any installment of
interest on or principal of, or any other amount payable in respect of, any
series of Indebtedness, the date on which the payment of such interest,
principal or other amount was scheduled to be paid in the original documentation
governing such Indebtedness, and will not include any contingent obligations to
repay, redeem or repurchase any such interest, principal or other amount prior
to the date originally scheduled for the payment thereof.
"Subordinated Indebtedness" means, with respect to the Notes,
(1) any Indebtedness of the Issuer which is by its terms
subordinated in right of payment to the Notes, and
(2) any Indebtedness of any Guarantor which is by its terms
subordinated in right of payment to the Guarantee of such entity of
the Notes.
"Subsidiary" means, with respect to any Person:
(1) any corporation, association, or other business entity (other
than a partnership, joint venture, limited liability company or
similar entity) of which more than 50% of the total voting power of
shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or
trustees thereof is at the time of determination 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
(2) any partnership, joint venture, limited liability company or
similar entity of which:
(a) more than 50% of the capital accounts, distribution
rights, total equity and voting interests or general or limited
partnership interests, as applicable, are owned or controlled,
directly or indirectly, by such Person or one or more
21
of the other Subsidiaries of that Person or a combination
thereof whether in the form of membership, general, special
or limited partnership or otherwise, and
(b) such Person or any Subsidiary of such Person is a
controlling general partner or otherwise controls such entity.
"Subsidiary Guarantor" means each Guarantor that is a Subsidiary
of the Issuer.
"Swap Contract" means (a) any and all rate swap transactions,
basis swaps, credit derivative transactions, forward rate transactions,
commodity swaps, commodity options, forward commodity contracts, equity or
equity index swaps or options, bond or bond price or bond index swaps or options
or forward bond or forward bond price or forward bond index transactions,
interest rate options, forward foreign exchange transactions, cap transactions,
floor transactions, collar transactions, currency swap transactions,
cross-currency rate swap transactions, currency options, spot contracts, or any
other similar transactions or any combination of any of the foregoing (including
any options to enter into any of the foregoing), whether or not any such
transaction is governed by or subject to any master agreement, and (b) any and
all transactions of any kind, and the related confirmations, which are subject
to the terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association, Inc., any
International Foreign Exchange Master Agreement, or any other master agreement
(any such master agreement, together with any related schedules, a "Master
Agreement"), including any such obligations or liabilities under any Master
Agreement; provided that no phantom stock or similar plan providing for payments
only on account of services provided by current or former directors, officers,
employees or consultants of Holdings and any of its Subsidiaries shall be a Swap
Contract.
"Swap Termination Value" means, in respect of any one or more
Swap Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the termination value(s) for
such Swap Contract, as determined in accordance therewith as if such Swap
Contract had been closed out on such date and each counterparty thereto were an
"Affected Party" (or similar term) thereunder.
"Tax" or "Taxes" means any present or future tax, levy,
impost, duty, assessment, deduction or withholding of any nature and whatever
called, by whomsoever, on whomsoever and wherever imposed, levied, collected,
withheld or assessed and any penalties, interest or other liabilities with
respect thereto.
"Taxing Jurisdiction" means the United Kingdom or any other
jurisdiction in which an Obligor is organized, engaged in business, resident for
tax purposes or generally subject to tax on a net income basis, or any political
subdivision of any of the foregoing or any authority of or in any of the
foregoing having the power to tax.
"Transaction" means the transactions contemplated by the
issuance of the Notes.
"Treasury Rate" means, as of any Redemption Date, the yield to
maturity as of such Redemption Date of United States Treasury securities with a
constant maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15(519) that has become publicly available at least two
Business Days prior to the Redemption Date (or, if such Statistical Release is
no longer published, any publicly available source of similar market data)) most
nearly equal to the period from the Redemption Date to September 1, 2013;
22
provided, however, that if the period from the Redemption Date to September 1,
2013, 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. xx.xx. 77aaa-77bbbb).
"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.
"U.S. Person" means a U.S. person as defined in Rule 902(k)
under the Securities Act.
"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 and are not required to bear the Private Placement Legend.
"VAT" means value added tax as provided in the United
Kingdom Value Added Tax Xxx 0000 and any other Tax of a similar nature.
"Voting Stock" of any Person as of any date means the Capital
Stock of such Person that is 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, Disqualified Stock or Preferred Stock, as the case may be, at any
date, the quotient obtained by dividing
(1) the sum of the products of the number of years from the date
of determination to the date of each successive scheduled principal
payment of such Indebtedness or redemption or similar payment with
respect to such Disqualified Stock or Preferred Stock multiplied by
the amount of such payment; by
(2) the sum of all such payments.
"Wholly-Owned Subsidiary" of any Person means a Subsidiary of
such Person, 100% of the outstanding Equity Interests of which (other than
directors' qualifying shares) shall at the time be owned by such Person or by
one or more Wholly-Owned Subsidiaries of such Person.
23
"WNA" means Xxxxxx North America Inc., a Delaware corporation,
and a direct or indirect Wholly-Owned Subsidiary of the Issuer.
"WSI" means Xxxxxx Securities, Inc., a Delaware corporation
and an indirect Wholly-Owned Subsidiary of the Issuer that is a licensed
broker-dealer.
Section 1.02 Other Definitions.
-----------------
Term Defined in
---- Section
-------
"Additional Amounts".......................................... 2.14
"Asset Sale Offer"............................................ 4.10
"Authentication Order"........................................ 2.02
"Change of Control Offer"..................................... 4.09
"Change of Control Payment"................................... 4.09
"Change of Control Payment Date".............................. 4.09
"Covenant Defeasance"......................................... 8.03
"DTC"......................................................... 2.03
"Event of Default"............................................ 6.01
"Excess Proceeds"............................................. 4.10
"Foreign Obligor"............................................. 12.02
"incur"....................................................... 4.07
"Legal Defeasance"............................................ 8.02
"Note Register"............................................... 2.03
"Offer Amount"................................................ 3.10
"Offer Period"................................................ 3.10
"Paying Agent"................................................ 2.03
"Process Agent"............................................... 12.02
"Purchase Date"............................................... 3.10
"Recipient" .................................................. 2.14
"Redemption Date"............................................. 3.07
"Refinancing Indebtedness".................................... 4.07
"Registrar"................................................... 2.03
"Relevant Party" ............................................. 2.14
"Restricted Payments"......................................... 4.12
"Successor Company"........................................... 5.01
"Successor Person"............................................ 5.01
"Supplier".................................................... 2.14
Section 1.03 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;
24
(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;
(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;
(j) any definition of or reference to any agreement, instrument
or other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein);
(k) any reference herein to any Person shall be construed to
include such Person's successors and assigns; and
(l) the word "including" shall mean "including without
limitation.
Section 1.04 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 otherwise expressly provided herein, 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
Issuer. 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 Issuer, if made in the manner provided in this Section 1.04.
(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 Note Register.
(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
25
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 Issuer in
reliance thereon, whether or not notation of such action is made upon such Note.
(e) The Issuer may 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 Issuer 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 provide its proxy or proxies to the beneficial owners of interests in any
such Global Note through such Depository's standing instructions and customary
practices.
(h) The Issuer 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 Depository 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.
Section 1.05 Legal Holiday.
-------------
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Note shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or the Note Purchase
Agreement) payment of interest or principal (and premium and any other amounts,
if any) need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date, Redemption Date or Stated Maturity, provided that no interest shall accrue
on the amount so payable for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be, if payment is made
on such next succeeding Business Day.
26
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 $2,000 and integral multiples of $1,000.
(b) Global Notes. Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (including the Global
Note Legend thereon and the "Schedule of Exchanges of Interests in the Global
Note" attached thereto). Notes issued in definitive form shall be substantially
in the form of Exhibit A attached hereto (but without the Global Note Legend
thereon and without the "Schedule of Exchanges of Interests in the Global Note"
attached thereto). Each Global Note shall represent such of the outstanding
Notes as shall be specified 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) [Reserved]
(d) Terms. The aggregate principal amount of Notes that may be
authenticated and delivered under this Indenture may not exceed $500,000,000.00,
except as provided in Section 2.07 hereof.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Issuer, 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.
The Notes shall be subject to repurchase by the Issuer
pursuant to an Asset Sale Offer as provided in Section 4.10 hereof or a Change
of Control Offer as provided in Section 4.09 hereof. The Notes shall not be
redeemable, other than as provided in Article 3.
(e) Euroclear and Clearstream Procedures Applicable. The
provisions of the "Operating Procedures of the Euroclear System" and "Terms and
Conditions Governing Use of Euroclear" and the "General Terms and Conditions of
Clearstream Banking" and "Customer Handbook" of Clearstream shall be applicable
to transfers of beneficial interests in the Regulation S Global Notes that are
held by Participants through Euroclear or Clearstream.
Section 2.02 Execution and Authentication.
----------------------------
At least one Officer shall execute the Notes on behalf of the
Issuer by manual or facsimile signature.
27
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 Issuer
Order (an "Authentication Order"), authenticate and deliver the Notes.
The Trustee may appoint an authenticating agent acceptable to the
Issuer 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 Issuer.
Section 2.03 Registrar and Paying Agent.
--------------------------
The Issuer shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Issuer shall ensure that at all times at least one Paying Agent shall be located
in a Member State of the European Union (if any) that will not require
withholding or deduction of tax pursuant to European Council Directive
2003/48/EC on the taxation of savings income or any law implementing or
complying with, or introduced in order to conform to, such European Council
Directive. The Registrar shall keep a register of the Notes ("Note Register")
and of their transfer and exchange. The Issuer may appoint one or more
co-registrars and one or more additional paying agents. The term "Registrar"
includes any co-registrar and the term "Paying Agent" includes any additional
paying agent. The Issuer may change any Paying Agent or Registrar without prior
notice to any Holder. The Issuer shall notify the Trustee in writing of the name
and address of any Agent not a party to this Indenture. If the Issuer fails to
appoint or maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such. The Issuer or any of its Subsidiaries may act as Paying Agent
or Registrar.
The Issuer initially appoints The Depository Trust Company
("DTC") to act as Depository with respect to the Global Notes.
The Issuer 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.
In addition, the Issuer initially appoints the Trustee (acting
through its London branch) to act as the UK Paying Agent for the Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
-----------------------------------
The Issuer shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal, premium, if any, or interest on the Notes, and will notify
the Trustee of any default by the Issuer in making any such payment. While any
such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Issuer at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than Holdings or any of its Subsidiaries) shall have no
further liability for the money. If Holdings or any of its Subsidiaries acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
28
benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy
or reorganization proceedings relating to the Issuer, the Trustee may 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. If the Trustee is not the Registrar, the Issuer shall
furnish to the Trustee at least five Business Days before each Interest Payment
Date and at such other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably require of the names
and addresses of the Holders of Notes.
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 Depository or to a successor
Depository or a nominee of such successor Depository. A beneficial interest in a
Global Note may not be exchanged for a Definitive Note unless (i) the Depository
(x) notifies the Issuer that it is unwilling or unable to continue as Depository
for such Global Note or (y) has ceased to be a clearing agency registered under
the Exchange Act and, in either case, a successor Depository is not appointed by
the Issuer within 120 days, (ii) the Issuer, at its option, notifies the Trustee
in writing that it elects to cause the issuance of the Definitive Notes or (iii)
there shall have occurred and be continuing a Default or Event of Default with
respect to the Notes. Upon the occurrence of any of the preceding events in
subsection (i), (ii) or (iii) 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
Depository (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 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 subsection (i), (ii) or (iii) 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) or (c) 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 Depository, 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. 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); except to the
extent the customary procedures of the Registrar require any such written
instrument in connection with such transfer.
29
(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 must deliver to the Registrar
either (A) (1) a written order from a Participant or an Indirect
Participant given to the Depository in accordance with the Applicable
Procedures directing the Depository 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 Depository in accordance with the Applicable Procedures directing the
Depository 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 Depository 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. 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(g) 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
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
must deliver a certificate in the form of Exhibit B hereto, including
the certifications in item (1) thereof; or
(B) if the transferee will take delivery in the form of
a beneficial interest in the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (2) thereof.
(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 of the same series, 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 of the same series, a certificate from such
holder in the form of Exhibit B hereto, including the certifications in
item (4) thereof;
30
and, in each such case set forth in this subclause (iv), 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 pursuant to this subsection
(iv) at a time when an Unrestricted Global Note has not yet been issued, the
Issuer 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 pursuant to this
subsection (iv).
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 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 clause (i) or (ii)
of Section 2.06(a) 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; or
(E) if such beneficial interest is being transferred to
the Issuer, or any Guarantor or any of their Subsidiaries, a
certificate substantially in the form of Exhibit B hereto, including
the certifications in item (3)(b) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(g) hereof, and the
Issuer shall execute and the Trustee shall authenticate and deliver 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
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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 Depository and the Participant or
Indirect Participant. The Trustee shall deliver 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) [Reserved].
(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
subsection (i) or (ii) of Section 2.06(a) 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 set forth in this subsection (iii), 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(g) hereof, and the Issuer 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.
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(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 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; or
(E) if such Restricted Definitive Note is being transferred
to the Issuer or any Guarantor or any of their Subsidiaries, a certificate
substantially in the form of Exhibit B hereto, including the certifications
in item (3)(b) 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 the
Registrar receives the following:
(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
(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;
33
and, in each such case set forth in this subclause (ii), 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 of any of the
subparagraphs 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 subsection (ii)(A), (ii)(B) or (iii)
of this Section 2.06(d) at a time when an Unrestricted Global Note has not yet
been issued, the Issuer 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 must
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 must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; or
(C) if the transfer will be made pursuant to
any other exemption from the registration requirements of
the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications required by item (3) thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted
Definitive Notes. Any Restricted Definitive Note may be exchanged by
34
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 set forth in this subsection (ii), 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. Each Global Note and each
Definitive Note (and all Notes issued in exchange therefor or substitution
thereof) shall bear the legend in substantially the following form:
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933 (THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY
NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION
35
IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I)
THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE
FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
THIS GLOBAL NOTE IS HELD BY THE DEPOSITORY (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 PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITORY WITH THE
PRIOR WRITTEN CONSENT OF THE ISSUER. 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 DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX
XXXX, XXX XXXX) ("DTC") TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR 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.
(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
36
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 Depository 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
Depository 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
Issuer 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 Issuer may require payment of
a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to
Sections 2.07, 2.10, 3.06, 3.10, 4.09, 4.10 and 9.04 hereof).
(iii) Neither the Registrar nor the Issuer 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 Issuer, 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 Issuer 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 Issuer 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 Issuer 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 Issuer designated pursuant to Section 4.13
hereof, the Issuer shall execute, and the Trustee shall authenticate and
deliver, 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.
37
(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 Issuer shall execute, and the Trustee shall
authenticate and deliver, 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 Depository participants or beneficial owners of interests in any
Definitive Note or Global Note) other than to require delivery of such
certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by the terms of, this
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 Issuer and the Trustee receives evidence to its satisfaction of
the ownership and destruction, loss or theft of any Note, the Issuer shall issue
and the Trustee, upon receipt of an Authentication Order, shall authenticate a
replacement Note if the Trustee's requirements are met. If required by the
Trustee or the Issuer, a security or an indemnity bond must be supplied by the
Holder that is sufficient in the judgment of the Trustee and the Issuer to
protect the Issuer, the Trustee, any Agent and any authenticating agent from any
loss that any of them may suffer if a Note is replaced. The Issuer may charge
for its expenses in replacing a Note.
Every replacement Note is a contractual obligation of the
Issuer and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.
In case any such mutilated, destroyed, lost or wrongfully
taken Note has become or is about to become due and payable, the Issuer in its
discretion may, instead of issuing a new Note, pay such a Note.
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 Issuer or an
Affiliate of the Issuer 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.
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If the Paying Agent (other than the Issuer, 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 Issuer, or by any Affiliate of the Issuer, shall be considered as though
not outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, 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 Issuer or any obligor upon the Notes
or any Affiliate of the Issuer or of such other obligor.
Section 2.10 Temporary Notes.
---------------
Until certificates representing Notes are ready for delivery,
the Issuer may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of certificated Notes but may have variations that the Issuer considers
appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Issuer shall prepare and the Trustee
shall authenticate definitive Notes in exchange for temporary Notes.
Holders and Beneficial Owners, as the case may be, of
temporary Notes shall be entitled to all of the benefits accorded to Holders, or
beneficial owners, respectively, of Notes under this Indenture.
Section 2.11 Cancellation.
------------
The Issuer at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee or 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 Issuer. The Issuer may not issue new Notes to replace Notes
that it has paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
------------------
If an Event of Default has occurred and is continuing, the
Issuer 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 6.03 hereof. The Issuer shall notify the Trustee in
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
Issuer 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
39
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 Issuer of such special record date. At
least 15 days before the special record date, the Issuer (or, upon the written
request of the Issuer, the Trustee in the name and at the expense of the Issuer)
shall deliver or cause to be delivered, to each Holder a notice at his or her
address as it appears in the Note Register 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.
Section 2.13 CUSIP Numbers.
-------------
The Issuer 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 Issuer will as promptly as practicable notify the
Trustee of any change in the CUSIP numbers.
Section 2.14 Tax.
---
(a) Withholding.
-----------
All payments under or in respect of the Notes by any Obligor
shall be made without withholding or deduction for or on account of any present
or future Taxes of whatever nature imposed, levied or assessed by or on behalf
of any Taxing Jurisdiction or any other jurisdiction (or any political
subdivision thereof or any authority thereof or therein having the power to tax)
from or through which payments are made, unless such withholding or deduction is
required by law. In such event, the Obligor shall pay such additional amounts
("Additional Amounts") as shall be necessary in order that the net amounts
received by the Holders and beneficial owners of the Notes after such
withholding or deduction shall equal the respective amounts which would
otherwise have been receivable in respect of the Notes in the absence of such
withholding or deduction; except that no such Additional Amounts shall be
payable with respect to a payment made to a Holder or beneficial owner of a
Note:
(i) to the extent that such Taxes would not have been so
imposed, levied or assessed but for the existence of some connection
between such Holder or beneficial owner of such Note and the Taxing
Jurisdiction imposing such Taxes other than the mere holding of such
Note; or
(ii) to the extent that such Taxes would not have been so
imposed, levied or assessed but for the failure of the Holder or
beneficial owner of such Note to make a declaration of non-residence
or any other claim or filing for exemption to which it is entitled ;
or
(iii) presented for payment more than 10 days after the date
on which such payment became due and payable or the date on which
payment of the Note is duly provided for and notice is given to
Holders, whichever occurs later, except to the extent that the Holder
40
or beneficial owner of such Note would have been entitled to such
Additional Amounts on presenting such Note on any date during such
10-day period; or
(iv) where such withholding or deduction is imposed on a
payment to or for an individual and is required to be made pursuant to
Council Directive 2003/48/EC or any law implementing or complying
with, or introduced in order to conform to, such Directive; or
(v) presented for payment by or on behalf of the Holder of
such Note to any Paying Agent if such withholding or deduction of such
Taxes could have been avoided by presenting such Note to another
Paying Agent in a member state of the European Union; or
(vi) any combination of clauses (i) through (v) above,
save that none of the exceptions listed above in clauses (i) through
(vi) shall apply in any case where the relevant withholding or
deduction of Taxes is required as a result of a breach by the Issuer of
any of its covenants in Section 4.16 hereof.
The Issuer shall make or cause to be made any applicable
withholding or deduction and remit the full amount deducted or withheld to the
relevant authority in accordance with applicable law. The Issuer will furnish to
the Holders, within 30 days after the date the payment of any Taxes deducted or
withheld is due pursuant to applicable law, certified copies of tax receipts
evidencing payment of such Taxes or, if such tax receipts are not reasonably
available to the Issuer, other documentation reasonably evidencing such payment
of such Taxes. Copies of such receipts or other documentation will be made
available to the Trustee or the Holders upon request.
Whenever in this Indenture there is mentioned, in any context,
the payment of principal, premium, if any, interest or of any other amount
payable under or with respect to any Note, such mention shall be deemed to
include mention of the payment of Additional Amounts to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof.
The foregoing obligations relating to Additional Amounts shall
survive any termination, defeasance or discharge of the Indenture.
(b) Tax indemnity.
(i) Except as provided by paragraph (ii) below, the
Obligors shall (within five Business Days of written demand to the
Issuer by any Holder) indemnify a Holder of a Note against any loss,
liability or cost which such Holder or the beneficial owner of such
Notes has (directly or indirectly) suffered for or on account of Tax
in respect of a Financing Document.
(ii) Paragraph (i) above shall not apply and no other
provision in the Financing Documents shall apply to compensate or
otherwise indemnify a Holder or beneficial owner of a Note:
(A) with respect to any Tax assessed on such
Holder or beneficial owner under the laws of the jurisdiction or
jurisdictions in which: (x) that Holder or beneficial owner is
incorporated and, if different, the jurisdiction (or
jurisdictions) in which that Holder or beneficial owner is
treated as resident for tax purposes; or (y) that Holder or
beneficial owner is located in respect of amounts received or
receivable in that jurisdiction;
41
(B) if that Tax is imposed on or calculated
by reference to the overall net income received or receivable by
that Holder or beneficial owner. Any sum deemed to be received or
receivable, including, for the avoidance of doubt, any amount
treated as income but not actually received by the Holder or
beneficial owner (such as a Tax Deduction), is not income
received or receivable for this purpose; or
(C) if and to the extent that a loss,
liability or cost is compensated for by an increased payment
pursuant to Section 2.14(a) hereof.
(iii) A Holder making, or intending to make, a claim
under paragraph (i) above shall promptly notify the Issuer in writing
of the event which will give, or has given, rise to the claim.
(iv) A Holder shall, on receiving a payment from an
Obligor under paragraph (i) above, notify the Trustee in writing.
(v) Notwithstanding the foregoing provisions of this
Section 2.14(b):
(A) no Holder or beneficial owner of a Note
shall be entitled to make any claim under this Section 2.14(b) in
respect of losses if such Holder does not notify the Issuer in
writing of its intention to claim pursuant to this Section
2.14(b) within ninety days after the date on which such Holder or
its Parent or any of its Subsidiaries becomes aware of the
relevant losses; and
(B) no Holder or beneficial owner of a Note
shall be entitled to make any claim pursuant to this Section
2.14(b) in respect of any losses on any date falling after the
discharge of all obligations and liabilities of the Obligors
hereunder and termination of this Agreement.
The Obligors, jointly and severally, covenant to indemnify each
of the Trustee and any Paying Agent for, and to hold each of them harmless
against, any loss, liability or expense which either of them has suffered in its
capacity as Trustee or Paying Agent, as applicable, for or on account of any Tax
(including any stamp duty) arising in connection with the Notes or this
Indenture, except to the extent that any such loss, liability or expense is due
to the negligence or bad faith of the Trustee or Paying Agent.
(c) Stamp Taxes.
-----------
The Issuer shall pay and, within five Business Days of written
demand by any Holder, indemnify each Holder and beneficial owner of a Note
against any cost, loss or liability that Holder or beneficial owner of a Note
incurs in relation to any stamp duty, stamp duty reserve, documentary,
registration and any other similar Tax payable in connection with or in relation
to any Financing Document.
(d) VAT.
---
(i) All fees and other consideration expressed to be payable
under a Financing Document shall (except where otherwise agreed) be
deemed to be exclusive of any VAT. If VAT is chargeable on any supply
made to any Person in connection with or under a Financing Document,
that Person shall pay (in addition to and at the same time as paying
the consideration for that supply) an amount equal to the amount of
the VAT, and provided that such Person has first been provided with an
appropriate valid VAT invoice.
42
(ii) Where a Financing Document requires any Person to reimburse
another Person for any costs or expenses, the Person making such
reimbursement shall also at the same time pay and indemnify the other
Person against any VAT incurred in respect of the costs or expenses to
the extent that the Person receiving the reimbursement determines in
its sole discretion (acting reasonably) that neither it nor any other
member of any group of which it is a member for VAT purposes is
entitled to credit for or repayment of the VAT or an amount equal to
the VAT.
(iii) If VAT is chargeable on any supply made by any Holder,
beneficial owner of a Note, Agent or Trustee (the "Supplier") to any
other Holder, beneficial owner of a Note, Agent or Trustee (the
"Recipient") under a Financing Document, and any party to this
Indenture (the "Relevant Party") is required by the terms of any
Financing Document to pay an amount equal to the consideration for
such supply to the Supplier (rather than being required to reimburse
the Recipient in respect of that consideration), such Person shall
(except where otherwise agreed) also pay to the Supplier (in addition
to and at the same time as paying such amount) an amount equal to the
amount of such VAT. The Recipient will promptly pay to the Relevant
Party an amount equal to any credit or repayment from the relevant tax
authority (whether such credit or repayment is obtained by the
Recipient or any other member of any group of which it is a member for
VAT purposes) which it reasonably determines relates to the VAT
chargeable on that supply.
ARTICLE 3
REDEMPTION
Section 3.01 Notices to Trustee.
------------------
If the Issuer elects to redeem Notes pursuant to Section 3.07
hereof, it shall furnish to the Trustee, at least 15 days before notice of
redemption is required to be delivered or caused to be delivered to Holders
pursuant to Section 3.03 hereof but not more than 60 days before a redemption
date, an Officer's Certificate setting forth (a) the paragraph or subparagraph
of such Note and/or Section of this Indenture pursuant to which the redemption
shall occur, (b) the redemption date, (c) the principal amount of the Notes to
be redeemed and (d) the redemption price.
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 in accordance with applicable procedures of the Depository
and (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
the Trustee considers fair and appropriate. In the event of partial redemption
or purchase by lot, the particular Notes to be redeemed or purchased shall be
selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the redemption date by the Trustee from the outstanding Notes not
previously called for redemption or purchase.
The Trustee shall promptly notify the Issuer 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 $2,000
or whole multiples of $1,000; no Notes of less than $1,000 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
43
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.
Section 3.03 Notice of Redemption.
--------------------
Subject to Section 3.10 hereof, the Issuer shall deliver or
cause to be delivered by electronic transmission or by first-class mail notices
of redemption at least 30 days but not more than 60 days before the redemption
date to each Holder of Notes to be redeemed at such Holder's registered address,
except that redemption notices may be mailed more than 60 days prior to a
redemption date if the notice is issued in connection with Article 8 or Article
11 hereof.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is to be redeemed in part only, the portion of
the principal amount of that Note that is to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in principal
amount equal to the unredeemed portion of the original Note representing the
same indebtedness to the extent not redeemed will be issued in the name of the
Holder of the Notes upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(f) that, unless the Issuer defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and after
the redemption date;
(g) the paragraph or subparagraph of the Notes and/or Section
of this Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on the
Notes.
At the Issuer's request, the Trustee shall give the notice of
redemption in the Issuer's name and at its expense; provided that the Issuer
shall have delivered to the Trustee, at least 15 days before notice of
redemption is required to be delivered or caused to be delivered to Holders
pursuant to this Section 3.03 (unless a shorter notice shall be agreed to by the
Trustee), an Officer's 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 delivered in accordance with
Section 3.03 hereof, Notes called for redemption become irrevocably due and
payable on the redemption date at the redemption price. The notice, if delivered
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 electronic transmission or by mail or any defect in the notice to
44
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
ceases to accrue on Notes or portions of Notes called for redemption.
Section 3.05 Deposit of Redemption or Purchase Price.
---------------------------------------
Prior to 10:00 a.m. (New York City time) on the redemption or
purchase date, the Issuer 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 to be redeemed or purchased on that date. The
Trustee or the Paying Agent shall promptly return to the Issuer any money
deposited with the Trustee or the Paying Agent by the Issuer in excess of the
amounts necessary to pay the redemption price of, and accrued and unpaid
interest on, all Notes to be redeemed or purchased.
If the Issuer 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.
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 Issuer 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 of a Note that is redeemed or purchased in
part, the Issuer shall issue and the Trustee, upon receipt of an Authentication
Order, shall authenticate for the Holder at the expense of the Issuer 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 minimum principal amount of
$2,000 or an integral multiple of $1,000.
Section 3.07 Optional Redemption.
-------------------
(a) At any time prior to September 1, 2013, the Issuer may
redeem all or part of the Notes, upon not less than 30 nor more than 60 days'
prior notice delivered electronically or by first-class mail, with a copy to the
Trustee, to the registered address of each Holder or otherwise delivered in
accordance with the Applicable Procedures, at a redemption price equal to 100%
of the principal amount of Notes redeemed plus the Applicable Premium as of,
plus accrued and unpaid interest thereon to the date of redemption (the
"Redemption Date"), subject to the right of Holders of record on the relevant
Record Date to receive interest due on the relevant Interest Payment Date. The
Trustee shall not be responsible for determining the Applicable Premium.
(b) Except pursuant to clause (a) of this Section 3.07
or pursuant to Section 3.09, the Notes will not be redeemable at the Issuer's
option prior to September 1, 2013.
(c) On and after September 1, 2013, the Issuer may redeem
the Notes, in whole or in part, upon not less than 30 nor more than 60 days'
prior notice delivered electronically or by first-class mail, postage prepaid,
with a copy to the Trustee, to each Holder of Notes at the address of such
Holder appearing in the security register, at the redemption prices (expressed
as percentages of principal amount of the Notes to be redeemed, plus accrued and
unpaid interest thereon to the applicable Redemption Date) set forth below,
45
subject to the right of Holders of Notes of record on the relevant Record Date
to receive interest due on the relevant Interest Payment Date, if redeemed
during the twelve-month period beginning on September 1 of each of the years
indicated below:
Year Percentage
------------------------------------------ -----------
2013...................................... 106.43750%
2014...................................... 104.29167%
2015...................................... 102.14583%
2016 and thereafter....................... 100.00000%
(d)......Any redemption pursuant to this Section 3.07 shall
be made pursuant to the provisions of Sections 3.01 through 3.06 hereof. In
addition, each redemption pursuant to this Section 3.07 shall relate to an
aggregate principal amount of Notes of at least the lesser of (i) $5,000,000.00
and (ii) the remaining outstanding principal amount of the Notes.
Section 3.08 Early Redemption for Tax Reasons
--------------------------------
(a) The Notes may be redeemed at the option of the Issuer in
whole, but not in part, at any time upon not less than 30 nor more than 60 days'
prior notice delivered electronically or by first-class mail, with a copy to the
Trustee, to the registered address of each Holder or otherwise delivered in
accordance with the Applicable Procedures, if:
(i) on the occasion of the next payment due under the
Notes, the Issuer has or will become obliged to pay Additional Amounts
as a result of any change in, or amendment to, the laws or regulations
of the United Kingdom or any political subdivision of, or any
authority in, or of, the United Kingdom having the power to tax, or
any change in the official application or official interpretation of
such laws or regulations, which change or amendment is announced and
becomes effective on or after the Issue Date; and
(ii) such obligation cannot be avoided by the Issuer
taking reasonable measures available to it, including without
limitation, by the Issuer's compliance with the covenants contained in
Section 4.16(a) hereof;
provided that no such notice of redemption shall be given earlier than
90 days prior to the earliest date on which the Issuer would be
obliged to pay such Additional Amounts were a payment in respect of
the Notes then due.
(b) Prior to the publication of any notice of redemption
pursuant to this Section 3.08, the Issuer shall deliver to the Trustee an
Officer's Certificate of the Issuer stating that the Issuer is entitled to
effect such redemption and setting forth a statement of facts showing that the
conditions precedent to the right of the Issuer so to redeem have occurred, and
a customary opinion in a form satisfactory to the Trustee (and during any period
which is a Holding Period, the Required Holders) of independent legal advisers
of recognized standing to the effect that the Issuer has or will become obliged
to pay such Additional Amounts as a result of such change or amendment and that
the Issuer cannot avoid the payment of such Additional Amounts by taking
reasonably measures available to it. The Trustee shall be entitled to accept
such certificate and opinion as sufficient evidence of the satisfaction of the
conditions precedent set out above in which event they shall be conclusive and
binding on the Holders of Notes. The Obligors, jointly and severally, covenant
to indemnify each of the Trustee and any Paying Agent for, and to hold each of
them harmless against, any loss, liability or expense arising out of or in
connection with actions taken or omitted by any of them in reliance on any
46
Officer's Certificate furnished pursuant to this Section, except to the extent
that any such loss, liability or expense is due to the negligence or bad faith
of the Trustee or Paying Agent.
(c) Notes redeemed pursuant to this Section 3.08 will be
redeemed at a redemption price equal to 100% of the principal amount of Notes
redeemed plus accrued and unpaid interest thereon to the date of redemption.
Section 3.09 Mandatory Redemption.
--------------------
The Issuer shall not be required to make any mandatory
redemption or sinking fund payments with respect to the Notes.
Section 3.10 Offers to Repurchase by Application of Excess Proceeds.
------------------------------------------------------
(a) In the event that, pursuant to Section 4.10 hereof, the
Issuer shall be required to commence an Asset Sale 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 Issuer shall apply all Excess Proceeds (the "Offer
Amount") to the purchase of Notes, or, if less than the Offer Amount has been
tendered, all Notes tendered in response to the Asset Sale 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
Asset Sale Offer.
(d) Upon the commencement of an Asset Sale Offer, the Issuer
shall deliver electronically or 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
Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice,
which shall govern the terms of the Asset Sale Offer, shall state:
(i) that the Asset Sale Offer is being made pursuant to
this Section 3.10 and Section 4.10 hereof and the length of time the
Asset Sale 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 Issuer defaults in making such
payment, any Note accepted for payment pursuant to the Asset Sale
Offer shall cease to accrue interest after the Purchase Date;
(v) that Holders electing to have a Note purchased
pursuant to an Asset Sale Offer may elect to have Notes purchased in
integral multiples of $1,000 only;
47
(vi) that Holders electing to have a Note purchased
pursuant to any Asset Sale Offer shall be required to surrender the
Note, with the form entitled "Option of Holder to Elect Purchase"
attached to the Note completed, or transfer by book-entry transfer, to
the Issuer, the Depository, if appointed by the Issuer, or a Paying
Agent at the address specified in the notice at least three days
before the Purchase Date;
(vii) that Holders shall be entitled to withdraw their
election if the Issuer, the Depository 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
surrendered by the Holders thereof exceeds the Offer Amount, the
Trustee shall select the Notes to be purchased on a pro rata basis
based on the accreted value or principal amount of the Notes tendered
(with such adjustments as may be deemed appropriate by the Trustee so
that only Notes in denominations of $2,000, or an integral multiple of
$1,000, 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 portion of the Notes surrendered (or transferred by
book-entry transfer) representing the same indebtedness to the extent
not repurchased.
(e) On or before the Purchase Date, the Issuer shall, to
the extent lawful, (i) accept for payment, on a pro rata basis to the extent
necessary, the Offer Amount of Notes or portions thereof validly tendered
pursuant to the Asset Sale Offer, or if less than the Offer Amount has been
tendered, all Notes tendered and (ii) 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 Issuer, the Depository 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 by such Holder and
accepted by the Issuer for purchase, and the Issuer 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
$2,000 or an integral multiple of $1,000. Any Note not so accepted shall be
promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer
shall announce to the Holders and the Trustee the results of the Asset Sale
Offer on or as soon as practicable after the Purchase Date.
Other than as specifically provided in this Section 3.10 or
Section 4.10 hereof, any purchase pursuant to this Section 3.10 shall be made
pursuant to the applicable provisions of Sections 3.01 through 3.06 hereof.
48
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes.
----------------
The Issuer 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 Holdings or
any of its Subsidiaries, holds as of 10:00 A.M. Eastern Time on the due date
money deposited by the Issuer in immediately available funds and designated for
and sufficient to pay all principal, premium, if any, and interest then due.
The Issuer shall pay interest on overdue principal (including
post-petition interest in any proceeding under any Bankruptcy Law) and on
overdue installments of interest, to the extent lawful, as provided in Section
6.03 hereof.
Section 4.02 Reports and Other Information.
-----------------------------
Holdings will furnish to the Trustee and to the Holders:
(a) as soon as available and in any event within 120 days
(or, if earlier, the date that is 15 days after the reporting date for such
information required by the SEC) after the end of each fiscal year of Holdings,
its audited consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows as of the end of and for such year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all reported on by Deloitte & Touche LLP or other independent public accountants
of recognized national standing to the effect that such consolidated financial
statements present fairly in all material respects the financial condition and
results of operations of Holdings and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;
(b) as soon as available and in any event within 60 days
(or, if earlier, the date that is 15 days after the reporting date for such
information required by the SEC) after the end of each of the first three fiscal
quarters of each fiscal year of Holdings, its consolidated balance sheet and
related statements of operations, stockholders' equity and cash flows as of the
end of and for such fiscal quarter and the then elapsed portion of the fiscal
year, setting forth in each case in comparative form the figures for the
corresponding period or periods (or, in the case of the balance sheet, as of the
end of) the previous fiscal year, all certified by a Financial Officer of
Holdings as presenting fairly in all material respects the financial condition
and results of operations of Holdings and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes;
(c) for so long as any of the Notes remain outstanding and
constitute "restricted securities" within the meaning of Rule 144(a)(3) under
the Securities Act, Holdings and its Subsidiaries will make available at their
expense, upon request, to the Holders, and any prospective purchasers thereof,
the information specified in Rule 144A(d)(4) under the Securities Act, unless
Holdings is then subject to Section 13 or 15(d) of the Exchange Act.
Documents required to be delivered pursuant to Section 4.02(a)
or (b) (to the extent any such documents are included in materials otherwise
filed with the SEC) may be delivered electronically and if so delivered within
the time frames set forth in such Sections, shall be deemed to have been
delivered on the date (i) on which Holdings or the Issuer posts such documents,
or provides a link thereto on Holdings' or the Issuer's website on the Internet
at the website address listed on Schedule 4.02; or (ii) on which such documents
are posted on Holdings' or the Issuer's behalf on an Internet website; provided
49
that: (i) Holdings or the Issuer, as applicable, shall deliver paper copies of
such documents to the Trustee or any Holder upon the written request of such
Person and until a written request to cease delivering paper copies is given by
such Person and (ii) Holdings or the Issuer, as applicable, shall notify the
Trustee and each Holder (by telecopier or electronic mail) of the posting of any
such documents and provide to the Trustee and each Holder by electronic mail
electronic versions (i.e., soft copies) of such documents. The Trustee shall
have no obligation to request the delivery or to maintain copies of the
documents referred to above, and in any event shall have no responsibility to
monitor compliance by Holdings or the Issuer with any such request for delivery,
and each Holder shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents; provided, further, that delivery of
all of the above-described 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 Issuer's
compliance with any of its covenants hereunder.
The Issuer will deliver to the Trustee and the Holders, within
120 days after the end of each fiscal year of the Issuer ending after the date
hereof, a certificate signed by the principal executive officer, principal
financial officer, or principal accounting officer of the Issuer stating whether
or not to the knowledge of such person after due inquiry the Issuer is in
default in the performance and observance of any of the terms, provisions, and
conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Issuer is in default,
specifying all such defaults and the nature and status thereof of which such
person may have such knowledge. The Issuer shall promptly notify the Trustee
following its knowledge of an Event of Default or Default under the Indenture,
and in any event within 5 Business Days of such knowledge.
Section 4.03 Corporate Existence; Conduct of Business.
----------------------------------------
(a) Subject to Article 5 hereof, Holdings will, and will
cause each of its Subsidiaries to, do or cause to be done all things necessary
to preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises material to the conduct of
its business; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Article 5; provided,
further, that Holdings shall not be required to preserve any such right,
license, permit, privilege or franchise, or the legal existence of any
Subsidiary (subject to compliance with this Indenture, including Article 5), if
the Board of Directors of Holdings shall determine in good faith that the
preservation of such existence is no longer necessary or desirable in the
conduct of the business of Holdings, and that the loss thereof is not, and will
not be, disadvantageous to the Holders.
(b) Holdings will, and will cause each of its Subsidiaries
to, continue to engage (including after giving effect to any acquisition) only
in a business of the type that does not represent a fundamental change in the
character of the business of Holdings and its Subsidiaries, taken as a whole,
conducted by Holdings and its Subsidiaries on the date of execution of this
Indenture, and businesses reasonably related thereto.
(c) The Issuer shall maintain its status as a public limited
company as defined in the Companies Xxx 0000.
Section 4.04 Taxes.
-----
During any Holding Period, Holdings will, and will cause each
of its Subsidiaries to, pay its tax liabilities before the same shall become
50
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings and for which Holdings
or such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP, or (b) the failure to make payment would not
reasonably be expected to result in a Material Adverse Effect.
Section 4.05 Maintenance of Properties; Insurance.
------------------------------------
During any Holding Period, Holdings will, and will cause each
of its Subsidiaries to, (a) keep and maintain all property material to the
conduct of its business in good working order and condition, ordinary wear and
tear excepted, and (b) maintain in full force and effect, with insurance
companies that Holdings and the Issuer believe (in good faith judgment of the
management of Holdings and the Issuer) are financially sound and responsible at
the time the relevant coverage is placed or renewed, insurance, in at least such
amounts and against at least such risks (and with such risk retentions) as are
usually insured against in the same general area by companies engaged in the
same or a similar business.
Section 4.06 Compliance with Laws.
--------------------
During any Holding Period, Holdings will, and will cause each
of its Subsidiaries to, comply with all Laws, rules, regulations and orders of
any Governmental Authority applicable to it or its property, except where the
failure to do so, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect.
Section 4.07 Limitation on Incurrence of Indebtedness and Issuance of
Disqualified Stock and Preferred Stock.
--------------------------------------
(a) Holdings shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable with respect, contingently or
otherwise (collectively, "incur" and collectively, an "incurrence"), to any
Indebtedness (including Acquired Indebtedness) and Holdings shall not issue any
shares of Disqualified Stock and shall not permit any of its Subsidiaries to
issue any shares of Preferred Stock; provided, however, that the Obligors may
incur Indebtedness (including Acquired Guarantor Indebtedness) or issue shares
of Disqualified Stock or Preferred Stock, as applicable, if the Consolidated
Leverage Ratio on a consolidated basis for Holdings and its Subsidiaries would
have been less than 4.00 to 1.00, determined on a pro forma basis (including a
pro forma application of the net proceeds therefrom), as if the additional
Indebtedness had been incurred, or the Disqualified Stock or Preferred Stock had
been issued.
(b) The provisions of Section 4.07(a) hereof shall not apply
to:
(i) the incurrence by an Obligor of Indebtedness under
the Credit Facilities and the issuance and creation of letters of
credit thereunder (with letters of credit being deemed to have a
principal amount equal to the face amount thereof), up to an aggregate
principal amount of $1.0 billion outstanding at any one time, less the
aggregate amount of amortization and mandatory principal payments
(excluding repayments of any revolving facility thereunder that do not
result in a permanent reduction or cancellation of such revolving
facility) actually made by an Obligor in respect of such Indebtedness;
(ii) the Indebtedness of an Obligor under the Existing
Notes and the Indebtedness of an Obligor under the Existing Bridge
Loan immediately following the Refinancing, in each case less the
aggregate amount of amortization and mandatory or voluntary principal
payments actually made by such Obligor thereunder after the Issue
Date;
51
(iii) Indebtedness of any Person that becomes a
Subsidiary of Holdings after the date hereof; provided that such
Indebtedness exists at the time such Person becomes a Subsidiary of
Holdings and is not created in contemplation of or in connection with
such Person becoming a Subsidiary of Holdings; provided, further, that
the aggregate principal amount of Indebtedness permitted to exist by
this clause (iii) shall not exceed $25,000,000.00 at any time
outstanding;
(iv) Indebtedness incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including
Capital Lease Obligations and any Indebtedness assumed in connection
with the acquisition of any such assets or secured by a Lien on any
such assets prior to the acquisition thereof, and extensions, renewals
and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof; provided that (x) such
Indebtedness is incurred prior to or within 180 days after such
acquisition or the completion of such construction or improvement and
(y) the aggregate principal amount of Indebtedness permitted by this
clause (iv) shall not exceed $25,000,000.00 at any time outstanding;
(v) Indebtedness incurred in relation to arrangements
made in the ordinary course of business to facilitate the operation of
bank accounts on a net balance basis;
(vi) short term Indebtedness from banks incurred in the
ordinary course of business pursuant to a facility required in order
to comply with rules and regulations issued from time to time by
regulatory authorities; provided that such compliance is required for
Holdings or a Subsidiary of Holdings, as applicable, to remain
licensed to conduct its business;
(vii) Indebtedness of Holdings or any of its
Wholly-Owned Subsidiaries to Holdings or any of its Wholly-Owned
Subsidiaries; provided that any such Indebtedness (except for
Indebtedness represented by any guarantee provided by Holdings in
favor of a Wholly-Owned Subsidiary in respect of Indebtedness of
another Wholly-Owned Subsidiary the subordination of which would be
prohibited by the FSA or the UK Pensions Trustee) that is owed by an
Obligor to a Non-Obligor in excess of $100,000,000.00 in the aggregate
shall be subordinated pursuant a subordination agreement in the form
attached hereto as Exhibit F or on terms reasonably satisfactory to
the Required Holders; provided, further, that any subsequent transfer
of any such Indebtedness (except to Holdings or any of its
Wholly-Owned Subsidiaries) shall be deemed, in each case, to be an
incurrence of such Indebtedness that was not permitted by this clause
(vii);
(viii) the incurrence by an Obligor of Indebtedness
or Disqualified Stock that serves to extend, refund, refinance, renew,
replace or defease any Indebtedness or Disqualified Stock incurred as
permitted under Section 4.07(a) hereof, this clause (viii) or any
Indebtedness or Disqualified Stock issued to so refund or refinance
such Indebtedness or Disqualified Stock, including additional
Indebtedness or Disqualified Stock incurred to pay premiums, fees and
expenses in connection therewith (the "Refinancing Indebtedness")
prior to its respective maturity; provided, however, that such
Refinancing Indebtedness:
(A) has a Weighted Average Life to Maturity
at the time such Refinancing Indebtedness is incurred which is
not less than the remaining Weighted Average Life to Maturity
of the Notes;
(B) to the extent such Refinancing
Indebtedness refinances (x) Indebtedness subordinated or pari
passu to the Notes or any Guarantee, such Refinancing
52
Indebtedness is subordinated or pari passu to the Notes or
such Guarantee at least to the same extent as the Indebtedness
being refinanced or refunded or (y) Disqualified Stock, such
Refinancing Indebtedness must be Disqualified Stock; and
(C) such Indebtedness is issued and
guaranteed by the same entities that issued and/or guaranteed
the Indebtedness being redeemed, repurchased, acquired or
retired; and
(ix) other Indebtedness of Holdings or any of its
Subsidiaries in an aggregate principal amount not exceeding
$150,000,000.00 at any time outstanding.
Section 4.08 Liens.
-----
Holdings shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien (except Permitted Liens) on any asset or property of Holdings or
any of its Subsidiaries, or any income or profits therefrom, or assign or convey
any right to receive income therefrom, unless the Notes are equally and ratably
secured; provided, that neither Holdings nor any of its Subsidiaries shall
permit the Existing Notes to benefit from any Liens on any assets or property of
Holdings or any of its Subsidiaries or incur or profit therefrom, or assign or
convey any right to receive income therefrom, unless the Notes are equally and
ratably secured.
Section 4.09 Offer to Repurchase Upon Change of Control.
------------------------------------------
(a) If a Change of Control occurs, unless the Issuer has
previously or concurrently mailed a redemption notice with respect to all the
outstanding Notes as described under Section 3.07 hereof, the Issuer shall make
an offer to purchase all of the Notes pursuant to the offer described below (the
"Change of Control Offer") at a price in cash (the "Change of Control Payment")
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest to the date of purchase, subject to the right of Holders of record on
the relevant Record Date to receive interest due on the relevant Interest
Payment Date. Within 30 days following any Change of Control (or 90 days, in the
case of a Designated Change of Control), the Issuer shall deliver notice of such
Change of Control Offer, with a copy to the Trustee, to each Holder to the
registered address of such Holder (or otherwise delivered in accordance with the
Applicable Procedures) with the following information:
(i) that a Change of Control Offer is being made
pursuant to this Section 4.09 and that all Notes properly tendered
pursuant to such Change of Control Offer will be accepted for payment
by the Issuer;
(ii) 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 delivered (the "Change of Control Payment Date");
(iii) that any Note not properly tendered will remain
outstanding and continue to accrue interest;
(iv) that unless the Issuer 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;
(v) 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, to the Paying Agent specified
53
in the notice at the address specified in the notice prior to the close
of business on the third Business Day preceding the Change of Control
Payment Date;
(vi) that Holders shall be entitled to withdraw their
tendered Notes and their election to require the Issuer to purchase
such Notes, provided that the Paying Agent receives, 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;
(vii) that if the Issuer 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 (which must be equal to
$1,000 or an integral multiple thereof); and
(viii) the other instructions, as determined by the
Issuer, consistent with this Section 4.09, that a Holder must follow.
The notice, if delivered 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 delivered 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.
The Issuer 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 or regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions of this Section 4.09, the Issuer shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations in this Section 4.09 by virtue thereof.
(b) On the Change of Control Payment Date, the Issuer shall,
to the extent permitted by law,
(i) accept for payment all Notes issued by it or
portions thereof properly tendered pursuant to the Change of Control
Offer,
(ii) deposit with the Paying Agent an amount equal to
the aggregate Change of Control Payment in respect of all Notes or
portions thereof so tendered, and
(iii) deliver, or cause to be delivered, to the
Trustee for cancellation the Notes so accepted together with an
Officer's Certificate to the Trustee stating that such Notes or
portions thereof have been tendered to and purchased by the Issuer.
(c) The Issuer shall not be required to make a Change of
Control Offer following a Change of Control if a third party makes the Change of
Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.09 applicable to a Change of Control
Offer made by the Issuer and purchases all Notes validly tendered and not
withdrawn under such Change of Control Offer. Notwithstanding anything to the
54
contrary herein, 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 of the Change of
Control Offer.
(d) The provisions of this Section 4.09 relative to the
Issuer's obligation to make an offer to repurchase the Notes as a result of a
Change of Control may be waived or modified with the written consent of the
Required Holders.
(e) Other than as specifically provided in this Section
4.09, any purchase pursuant to this Section 4.09 shall be made pursuant to the
provisions of Sections 3.02, 3.05 and 3.06 hereof.
Section 4.10 Asset Sales.
-----------
(a) Holdings shall not, and shall not permit any of its
Subsidiaries to, cause, make or suffer to exist an Asset Sale, unless after
giving effect thereto, Holdings shall continue to own directly or indirectly
100% of the Equity Interests of the Issuer and WNA, and unless:
(i) Holdings or such 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 Issuer or
Holdings) of the assets sold or otherwise disposed of; and
(ii) at least 75% of the consideration therefor
received by such Obligor or such Subsidiary, as the case may be, is in
the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities (as shown on Holdings'
or such Subsidiary's most recent balance sheet or in the
footnotes thereto) of the Issuer or such Subsidiary, other
than liabilities that are by their terms subordinated to the
Notes, that are assumed by the transferee of any such assets
and for which the Issuer and all of its Subsidiaries have been
validly released by all creditors in writing, and
(B) any securities received by Holdings or
such Subsidiary from such transferee that are converted by
Holdings or such Subsidiary into cash (to the extent of the
cash received) within 180 days following the closing of such
Asset Sale,
shall be deemed to be cash for purposes of this provision and for no
other purpose.
(b) Within 270 days after the receipt of any Net Proceeds of
any Asset Sale, Holdings or such Subsidiary, at its option, may apply the Net
Proceeds from such Asset Sale:
(i) to permanently reduce:
(A) Obligations under the Credit Facilities,
and to correspondingly reduce commitments with respect
thereto; or
(B) Indebtedness of a Non-Obligor, other
than Indebtedness owed to Holdings or any of its Subsidiaries,
or
(ii) to make a Permitted Investment (A) in any one or
more businesses, provided that such Permitted Investment is in the form
of the acquisition of Capital Stock and results in Holdings or any of
its Wholly-Owned Subsidiaries owning an amount of the Capital Stock of
such business such that it constitutes a Wholly-Owned Subsidiary; (B)
55
that are capital expenditures; or (C) that are acquisitions of other
assets, in each of (A), (B) and (C), used or useful in a Similar
Business.
(c) Any Net Proceeds from the Asset Sale that are not invested
or applied as provided and within the time period set forth in Section 4.10(b)
hereof shall be deemed to constitute "Excess Proceeds." When the aggregate
amount of Excess Proceeds exceeds $200,000,000.00, the Issuer shall make an
offer to all Holders of the Notes (an "Asset Sale Offer"), to purchase the
maximum aggregate principal amount of the Notes that is an integral multiple of
$1,000 that may be purchased out of the 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 fixed for the closing of such offer, in
accordance with the procedures set forth in this Indenture. The Issuer shall
commence an Asset Sale Offer with respect to Excess Proceeds within ten Business
Days after the date that Excess Proceeds exceed $200,000,000.00 by delivering
the notice required pursuant to the terms of this Indenture, with a copy to the
Trustee.
To the extent that the aggregate amount of Notes tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer may
use any remaining Excess Proceeds for general corporate purposes, subject to the
covenants contained in this Indenture. If the aggregate principal amount of
Notes surrendered by such Holders thereof exceeds the amount of Excess Proceeds,
the Trustee shall select the Notes to be purchased on a pro rata basis based on
the accreted value or principal amount of the Notes tendered. Upon completion of
any such Asset Sale Offer, the amount of Excess Proceeds shall be reset to zero.
(d) Pending the final application of any Net Proceeds pursuant
to this Section 4.10, the holder of such Net Proceeds may apply such Net
Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit
facility or otherwise invest such Net Proceeds in any manner not prohibited by
this Indenture.
(e) The Issuer 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 or regulations are applicable in connection
with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent
that the provisions of any securities laws or regulations conflict with the
provisions of this Indenture, the Issuer shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations described in this Indenture by virtue thereof.
Section 4.11 Sale and Lease-Back Transactions.
--------------------------------
Holdings shall not, and shall not permit any of its
Subsidiaries to, enter into any Sale and Lease-Back Transaction, except:
(a) any such sale of any fixed or capital assets that is made
for cash consideration in an amount not less than the cost of such fixed or
capital asset and is consummated within 180 days after Holdings or such
Subsidiary acquires or completes the construction of such fixed or capital
asset;
(b) any such sale of the property listed on Schedule 4.11; and
(c) any other such sale if, after giving effect thereto, the
Attributable Debt in respect of the applicable Sale and Lease-Back Transaction
is within the limits set forth in clause (9) of the definition of Permitted
Liens (after giving effect to all such Sale and Lease-Back Transactions and
applicable Liens).
56
Section 4.12 Limitation on Restricted Payments.
---------------------------------
Holdings shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly:
(a) declare or pay any dividend or make any payment or other
distribution on account of Holdings or any of its Subsidiaries' Equity
Interests, including any dividend or distribution payable in connection with any
merger or consolidation other than:
(i) dividends or distributions by Holdings payable
solely in Equity Interests (other than Disqualified Stock) of Holdings,
as applicable, or in options, warrants or other rights to purchase such
Equity Interests (other than Disqualified Stock); or
(ii) dividends or distributions by a Subsidiary of
Holdings so long as, in the case of any dividend or distribution
payable on or in respect of any class or series of securities issued by
a Subsidiary other than a Wholly-Owned Subsidiary, Holdings or a
Subsidiary of Holdings receives at least its pro rata share of such
dividend or distribution in accordance with its Equity Interests in
such class or series of securities;
(b) purchase, redeem, defease or otherwise acquire or retire
for value any Equity Interests of any Obligor or any direct or indirect parent
company of any Obligor, including in connection with any merger or
consolidation;
(c) make any principal payment on, or redeem, repurchase,
defease or otherwise acquire or retire for value in each case, prior to any
scheduled repayment, sinking fund payment or maturity, any Subordinated
Indebtedness, other than the purchase, repurchase or other acquisition of
Subordinated Indebtedness purchased in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case due within one
year of the date of purchase, repurchase or acquisition; or
(d) make any Restricted Investment,
all such payments and other actions set forth in clauses (a) through (d) above
being collectively referred to as "Restricted Payments") except that Holdings
and the Issuer may, and may permit their respective Subsidiaries to, so long as
no Default shall have occurred and be continuing or would occur as a consequence
thereof, to effect the following:
(A) the making of any Restricted Payment so long as
immediately prior to and immediately after giving effect to such Restricted
Payment and any Indebtedness incurred or repaid in connection therewith on a pro
forma basis the Consolidated Leverage Ratio is less than or equal to 2.50 to
1.00;
(B) the declaration and payment of ordinary (as
opposed to special) cash dividends on Holdings' common stock in the ordinary
course of business consistent with past practices: (i) so long as immediately
prior to and after giving effect to each such dividend and any Indebtedness
incurred or repaid in connection therewith, on a pro forma basis, the Obligors
could incur $1.00 of additional Indebtedness under Section 4.07(a) or (ii) such
dividends do not exceed 6% per annum of Holdings' market capitalization as of
the last day of the most recent fiscal quarter based on the weighted average
closing price of Holdings' common stock during each day of such fiscal quarter
so long as immediately prior to and after giving effect to each such dividend
and any Indebtedness incurred or repaid in connection therewith, on a pro forma
basis, the Consolidated Leverage Ratio is less than or equal to 5.00 to 1.00;
57
(C) the payment of any dividend or distribution or
the consummation of any irrevocable redemption within 60 days after the date of
declaration of the dividend or distribution or giving of the redemption notice,
as applicable, if at the date of declaration or notice such payment or
redemption would have complied with the provisions of this Indenture;
(D) the defeasance, redemption, repurchase or other
acquisition or retirement of Subordinated Indebtedness of Holdings and its
Subsidiaries made by exchange for, or out of the proceeds of the substantially
concurrent sale of, new Indebtedness of Holdings and its Subsidiaries that is
incurred in compliance with Section 4.07 hereof so long as:
(i) the principal amount (or accreted value, if
applicable) of such new Indebtedness does not exceed the principal
amount plus any accrued and unpaid interest on the Subordinated
Indebtedness being so redeemed, repurchased, acquired or retired for
value, plus the amount of any premium required to be paid under the
terms of the instrument governing the Subordinated Indebtedness being
so redeemed, repurchased, acquired or retired and any fees and expenses
incurred in the issuance of such new Indebtedness;
(ii) such Indebtedness is subordinated to the Notes
at least to the same extent as such Subordinated Indebtedness so
purchased, exchanged, redeemed, repurchased, acquired or retired for
value;
(iii) such Indebtedness has a final scheduled
maturity date equal to or later than the final scheduled maturity date
of the Subordinated Indebtedness being so redeemed, repurchased,
acquired or retired;
(iv) such Indebtedness is issued and guaranteed by
the same entities that issued and/or guaranteed the Indebtedness being
redeemed, repurchased, acquired or retired; and
(v) such Indebtedness has a Weighted Average Life to
Maturity equal to or greater than the remaining Weighted Average Life
to Maturity of the Subordinated Indebtedness being so redeemed,
repurchased, acquired or retired.
(E) the declaration and payment of dividends or
distributions to holders of any class or series of Disqualified Stock of
Holdings or any of its Subsidiary issued in accordance with Section 4.07 hereof;
(F) the repurchase by Holdings of Equity Interests of
Holdings, so long as (i) the number of shares of common stock of Holdings so
repurchased since the Merger does not exceed the number of shares issued in the
Merger (adjusted for stock splits, stock combinations and similar transactions),
(ii) the aggregate amount of such Restricted Payments since the Merger does not
exceed $800,000,000.00, (iii) all such Equity Interests repurchased by Holdings
are retired and not held as treasury stock, and (iv) at the time of and
immediately after giving effect to each such Restricted Payment and any
Indebtedness incurred or repaid in connection therewith, on a pro forma basis,
the Obligors could incur $1.00 of additional Indebtedness under Section 4.07(a);
(G) the repurchase, retirement or other acquisition
sor retirement for value of Equity Interests of Holdings held by any current or
former employee or director (or their respective estates, heirs, beneficiaries,
transferees, spouses or former spouses) of Holdings and its Subsidiaries
pursuant to any management equity plan or stock option plan or any other
management or employee benefit plan or similar agreement, in each case entered
into in the ordinary course of business; and
58
(H) the making of other Restricted Payments that are
not otherwise permitted in any other clause of this Section 4.12 in an aggregate
amount in any fiscal year of Holdings not to exceed the sum of (i)
$50,000,000.00 plus (ii) up to $25,000,000.00 of the amount available pursuant
to clause (i) above for the preceding fiscal year, but unused in such fiscal
year (the amounts in clause (i) above being deemed to be utilized first in any
fiscal year prior to the utilization of any carryover amount provided in this
clause (ii)).
Section 4.13 Maintenance of Office or Agency.
-------------------------------
The Issuer shall maintain an office or agency (which may be an
office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar)
where Notes may be surrendered for registration of transfer or for exchange and
where notices and demands to or upon the Issuer in respect of the Notes and this
Indenture may be served. The Issuer shall give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Issuer shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Issuer may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided that no such designation or rescission shall in any manner relieve the
Issuer of its obligation to maintain an office or agency for such purposes. The
Issuer shall give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
The Issuer hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Issuer in accordance with Section
2.03 hereof.
Section 4.14 Stay, Extension and Usury Laws.
------------------------------
The Obligors 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 Obligors (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 4.15 Dividend and Other Payment Restrictions Affecting
Subsidiaries.
------------
(a) Holdings shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or consensual restriction
on the ability of any such Subsidiary to:
(i) (A) pay dividends or make any other distributions
to Holdings or any of its Subsidiaries on their Capital Stock or with
respect to any other interest or participation in, or measured by, its
profits, or
(B) pay any Indebtedness owed to Holdings or any
of its Subsidiaries;
59
(ii) make loans or advances to Holdings or any of its
Subsidiaries; or
(iii) sell, lease or transfer any of its properties
or assets to Holdings or any of its Subsidiaries.
(b) The restrictions in Section 4.15(a) hereof shall not apply
to encumbrances or restrictions existing under or by reason of:
(i) contractual encumbrances or restrictions in
effect on the Issue Date, including pursuant to the Credit Agreement
and the related documentation;
(ii) this Indenture and the Notes;
(iii) purchase money obligations for property
acquired in the ordinary course of business that impose restrictions of
the nature discussed in clause (iii) of Section 4.15(a) hereof on the
property so acquired;
(iv) applicable Law;
(v) any agreement or other instrument of a Person
acquired by Holdings or any of its Subsidiaries in existence at the
time of such acquisition (but not created in contemplation thereof),
which encumbrance or restriction is not applicable to any Person, or
the properties or assets of any Person, other than the Person and its
Subsidiaries, or the property or assets of the Person and its
Subsidiaries, so acquired;
(vi) contracts for the sale of assets or mergers,
including customary restrictions with respect to Holdings and any of
its Subsidiaries pursuant to an agreement that has been entered into
for the sale or disposition of all or substantially all of the Capital
Stock or assets of such Subsidiary;
(vii) Secured Indebtedness otherwise permitted to be
incurred pursuant to Section 4.07 hereof and Section 4.08 hereof that
limit the right of the debtor to dispose of the assets securing such
Indebtedness;
(viii) customary provisions in joint venture
agreements and other similar agreements relating solely to such joint
venture;
(ix) customary provisions contained in leases or
licenses of intellectual property and other agreements, in each case,
entered into in the ordinary course of business; and
(x) any encumbrances or restrictions of the type
referred to in clauses (i), (ii) and (iii) of Section 4.15(a) hereof
imposed by any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings of the
contracts, instruments or obligations referred to in clauses (i)
through (ix) of this Section 4.15(b); provided that such amendments,
modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are, in the good faith
judgment of the Issuer or Holdings, no more restrictive with respect to
such encumbrance and other restrictions taken as a whole than those
prior to such amendment, modification, restatement, renewal, increase,
supplement, refunding, replacement or refinancing.
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Section 4.16 Maintenance of Listing.
----------------------
(a) As promptly as possible after the Issue Date, and in any
event prior to the first Interest Payment Date after the Issue Date, so long as
any Notes remain outstanding, the Issuer shall procure and maintain the listing
of such Notes on the Channel Islands Stock Exchange or any other stock exchange
(during any period that is a Holding Period, reasonably acceptable to the GSMP
Purchasers) which is a "recognised stock exchange" as defined in s.1005 Income
Tax Xxx 0000 of the United Kingdom.
(b) The Issuer shall promptly notify the Trustee and each
Holder if:
(i) the Notes have not been admitted to listing as
described in (a) above on or before May 31, 2009; or
(ii) at any time after the Notes have been so
admitted to listing, the Notes (or any Note) shall lose their listed
status on the relevant stock exchange.
Section 4.17 Ratings for Notes.
-----------------
As soon as practicable (and in all events within 60 days from
the Issue Date), the Issuer will use commercially reasonable efforts to obtain
and, during any Holding Period, maintain a Debt Rating for the Notes from Rating
Agencies.
Section 4.18 Additional Guarantees.
---------------------
Holdings will cause each of its Subsidiaries that:
(a) guarantees any Indebtedness of Holdings or any of its
Subsidiaries permitted to be incurred pursuant to Section 4.07 (other than
guarantees of Indebtedness permitted to be incurred pursuant to Section
4.07(b)(iii), (iv), (v), (vi), (vii) and (ix)); or
(b) incurs any Indebtedness or issues any shares of
Disqualified Stock or Preferred Stock permitted to be incurred or issued
pursuant to Section 4.07 hereof (other than Indebtedness permitted to be
incurred pursuant to Section 4.07(b)(iii), (iv), (v), (vi), (vii) and (ix)) to
execute and deliver to the Trustee, a supplemental indenture, substantially in
the form attached hereto as Exhibit D, pursuant to which such Subsidiary will
guarantee payment of the Notes and the Obligations of the Issuer under this
Indenture. Each Guarantee by a Subsidiary Guarantor will be limited to an amount
not to exceed the maximum amount that can be guaranteed by that Subsidiary
without rendering the Guarantee, as it relates to such Subsidiary Guarantor,
voidable under applicable law relating to fraudulent conveyance or fraudulent
transfer or similar laws affecting the rights of creditors generally.
To evidence its Guarantee set forth in Article 10 hereof, each
subsequent Guarantor hereby agrees that a notation of such Guarantee
substantially in the form attached as Exhibit E hereto will be endorsed by an
Officer of such Guarantor on each Note authenticated and delivered by the
Trustee and that this Indenture will be executed on behalf of such Guarantor by
one of its Officers. Each subsequent Guarantor also will execute a supplemental
indenture.
Section 4.19 Centre of Main Interests.
------------------------
No Obligor incorporated or otherwise existing under the laws
of England & Wales or any other country that is a member of the European Union
shall (and Holdings shall procure that none of its Subsidiaries incorporated or
61
otherwise existing under the laws of England & Wales or any other country that
is a member of the European Union shall), without the prior written consent of
the Required Holders, cause or allow its Centre of Main Interests to change to a
country other than England & Wales or such other country that is a member of the
European Union, as applicable.
Section 4.20 Maintenance of Process Agent.
----------------------------
The Issuer shall maintain a Person in New York, New York
acting as agent to receive service of process on behalf of it and its property
and capable of discharging the functions of the Process Agent set forth in
Section 12.02.
Section 4.21 Registration.
------------
The Issuer shall have re-registered as a public limited
company as defined in the Companies Act of 2006 within 30 days of the Issue
Date.
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation or Sale of All or Substantially All
Assets.
------
(a) Neither the Issuer nor any Holding Company (each, a
"Designated Obligor") shall consolidate or merge with or into or wind up into
(whether or not the Designated Obligor 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 any Person
unless:
(i) either: (A) the Designated Obligor is the
surviving corporation; or (B) the Person formed by or surviving any
such consolidation or merger (if other than the Designated Obligor) or
to which such sale, assignment, transfer, lease, conveyance or other
disposition will have been made is a corporation organized or existing
under the laws of the jurisdiction of organization of such Designated
Obligor (such Person, as the case may be, being herein called the
"Successor Company"), and the Successor Company of the Issuer shall be,
and maintain its status as, a public limited company as defined in the
Companies Xxx 0000.
(ii) the Successor Company, if other than the
Designated Obligor, expressly assumes all the obligations of the
Designated Obligor under the Notes and this Indenture pursuant to
supplemental indentures or other documents or instruments in form
reasonably satisfactory to the Trustee;
(iii) immediately prior to and immediately after such
transaction, (A) no Default exists and (B) Holdings (or if Holdings is
the Designated Obligor, the Successor Company to Holdings) owns
directly or indirectly 100% of the Equity Interests of each of the
Issuer and WNA;
(iv) immediately after giving pro forma effect to
such transaction and any related financing transactions, as if such
transactions had occurred at the beginning of the applicable
four-quarter period, the Successor Company would be permitted to incur
at least $1.00 of additional Indebtedness pursuant to Section 4.07(a)
62
hereof; provided that this clause (iv) shall not apply to any
consolidation or merger of any Designated Obligor with, or any transfer
by any Designated Obligor or all or substantially all of its properties
or assets to, any other Designated Obligor;
(v) each Guarantor, unless it is a Opco
Guarantor that is the other party to the transactions described above,
in which case Section 5.01(c)(i)(B) hereof shall apply, shall have by
supplemental indenture confirmed that its Guarantee shall apply to such
Person's obligations under this Indenture and the Notes; and
(vi) Holdings shall have delivered to the Trustee
(and during any period that is a Holding Period, the Holders) a
customary Officer's Certificate and a customary Opinion of Counsel,
each stating that such consolidation, merger or transfer and such
supplemental indentures, if any, comply with this Indenture and during
any period that is a Holding Period other customary matters reasonably
requested by the Required Holders; provided that, the Required Holders
shall provide notice of such request to the Trustee.
(b) If applicable, the Successor Company shall succeed to, and
be substituted for the Designated Obligor, as the case may be, under this
Indenture, the Guarantees and the Notes, as applicable.
(c) Subject to certain limitations described in this Indenture
governing release of a Guarantee upon the sale, disposition or transfer of a
Opco Guarantor, no Opco Guarantor shall, and Holdings shall not permit any Opco
Guarantor to, consolidate or merge with or into or wind up into (whether or not
the Issuer or Opco 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 any Person unless:
(i) (A) such Opco Guarantor is the surviving
corporation or the Person formed by or surviving any such consolidation
or merger (if other than such Opco Guarantor) or to which such sale,
assignment, transfer, lease, conveyance or other disposition will have
been made is a corporation organized or existing under the laws of the
jurisdiction of organization of such Opco Guarantor, as the case may be
(such Opco Guarantor or such Person, as the case may be, being herein
called the "Successor Person");
(B) the Successor Person, if other than such
Opco Guarantor, expressly assumes all the obligations of such Opco
Guarantor under this Indenture and such Opco Guarantor's related
Guarantee pursuant to supplemental indentures or other documents or
instruments in form reasonably satisfactory to the Trustee;
(C) immediately prior to and immediately after
such transaction, no Default exists; and
(D) the Issuer shall have delivered to the
Trustee (and during any period that is a Holding Period, the Holders) a
customary Officer's Certificate and a customary Opinion of Counsel,
each stating that such consolidation, merger or transfer and such
supplemental indentures, if any, comply with this Indenture, including
Section 4.10 hereof, and during any period that is a Holding Period
other customary matters reasonably requested by the Required Holders;
provided that, the Required Holders shall provide notice of such
request to the Trustee; or
(ii) the transaction is made in compliance with
Section 4.10 hereof.
63
(d) Subject to certain limitations described in this
Indenture, the Successor Person shall succeed to, and be substituted for, such
Opco Guarantor under this Indenture and such Opco Guarantor's Guarantee.
Notwithstanding the foregoing, any Opco Guarantor may merge into or consolidate
with or transfer all or part of its properties and assets to another Opco
Guarantor or the Issuer.
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 in accordance with Section 5.01 hereof, the Successor Company or
Successor Person formed by such consolidation or into or with which an Obligor
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 Holdings, the
Issuer or such other Obligor shall refer instead to the applicable Successor
Company or Successor Person, as applicable and not to the predecessor), and may
exercise every right and power of Holdings, the Issuer or such other Obligor, as
applicable under this Indenture with the same effect as if such successor Person
had been named as Holdings, the Issuer or such other Obligor herein; provided
that in the case of the Issuer, the predecessor Issuer shall not be relieved
from the obligation to pay the principal of and interest on the Notes and the
fees and expenses of the Trustee, except in the case of a sale, assignment,
transfer, conveyance or other disposition of all of the Issuer's assets that
meets the requirements of Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
-----------------
An "Event of Default" wherever used herein, means any one of
the following events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in payment when due and payable, upon redemption,
acceleration or otherwise, of principal of, or premium, if any, on the Notes;
(b) (i) during any Holding Period, default for 3 Business Days
or more in the payment when due of interest on or with respect to the Notes and
(ii) during any period that is not a Holding Period, default for 30 days or more
in the payment when due of interest on or with respect to the Notes;
(c) (i) during any Holding Period (A) failure by Holdings or
any of its Subsidiaries to comply with any of its obligations, covenants or
agreements contained in Section 4.02, 4.03, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12
or 4.15 hereof or Article 5 hereof or (B) failure by Holdings or any of its
Subsidiaries to comply with any of its obligations, covenants or agreements
(other than a default referred to in clauses (a) and (b) above and this clause
(c)(i)) contained in this Indenture, the Notes or any other Financing Document,
and if such failure is capable of remedy, such failure shall continue unremedied
for a period of 30 days after the earlier of the date (A) Holdings or any of its
Subsidiaries has knowledge of such failure or (B) notice is given by the Trustee
or any Holder to the Issuer; and (ii) during any period that is not a Holding
Period, failure by Holdings or any of its Subsidiaries to comply with any of its
obligations, covenants or agreements contained in this Indenture or a default in
the performance, or breach, of any covenant of the Issuer or any Guarantor
(other than a default referred to in clauses (a) and (b) above), and such
64
failure shall continue unremedied for a period of 30 days notice is given to the
Issuer by the Trustee or by the Holders of at least 25% in principal amount of
the Notes then outstanding;
(d) (i) during any Holding Period, either (A) Holdings or any
of its Subsidiaries shall fail to make any payment (whether of principal or
interest and regardless of amount) in respect of any Material Indebtedness or
Material Swap Obligations, when and as the same shall become due and payable,
(B) any event or condition occurs that results in any Material Indebtedness of
Holdings or any of its Subsidiaries becoming due prior to its scheduled maturity
or (C) any event or condition occurs in respect of any Material Indebtedness of
Holdings or any of its Subsidiaries (other than any Credit Facilities) that
enables or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of such Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become due,
or to require the prepayment, repurchase, redemption or defeasance thereof,
prior to its scheduled maturity; provided that clause (d)(i)(B) or (C) shall not
apply to secured Indebtedness that becomes due as a result of the voluntary sale
or transfer of the property or assets securing such Indebtedness; and (ii)
during any period that is not a Holding Period, any event or condition occurs
that results in any Material Indebtedness of Holdings or any of its Subsidiaries
becoming due prior to its scheduled maturity, or Holdings or any of its
Subsidiaries fail to pay any Material Indebtedness at maturity;
(e) one or more judgments for the payment of money in an
aggregate amount in excess of $30,000,000.00 (to the extent not covered by
insurance provided by a carrier that is not disputing coverage) shall be
rendered against Holdings, any of its Subsidiaries or any combination thereof,
which Holdings or any of its Subsidiaries has failed to pay, and the stayed, or
any formal legal process has been commenced by a judgment creditor to attach or
levy upon any material assets of Holdings or any of its Subsidiaries to enforce
any such judgment;
(f) An involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of Holdings or any of its Material Subsidiaries or their
debts, or of a substantial part of their assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings or any of its Material Subsidiaries
or for a substantial part of their assets, and, in any case, such proceeding or
petition shall continue undismissed for 60 days or an order or decree approving
or ordering any of the foregoing shall be entered;
(g) Holdings or any of its Material Subsidiaries shall: (i)
voluntarily commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign bankruptcy,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (f) of this Section 6.01, (iii) apply
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for Holdings or any of its
Material Subsidiaries or for a substantial part of their assets, (iv) file an
answer admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of creditors or
(vi) take any action for the purpose of effecting any of the foregoing Holdings
or any of its Subsidiaries;
(h) Holdings or any of its Material Subsidiaries shall become
unable, admit in writing its inability, or fail generally to pay their debts as
they become due;
(i) during any Holding Period, any representation or warranty
made or deemed made by or on behalf of Holdings or any of its Subsidiaries in or
in connection with any Financing Document or any amendment or modification
thereof or waiver thereunder, or in any report, certificate, financial statement
or other document furnished pursuant to or in connection with any Financing
65
Document or any amendment or modification thereof or waiver thereunder, shall
prove to have been incorrect in any material respect (or, with respect to any
representation or warranty modified by materiality or Material Adverse Effect,
in any respect) when made or deemed made;
(j) during any Holding Period, an ERISA Event shall have
occurred that, in the opinion of the Required Holders, when taken together with
all other ERISA Events that have occurred, would reasonably be expected to
result in a Material Adverse Effect; or
(k) during any Holding Period, any Financing Document, at any
time after its execution and delivery and for any reason other than as expressly
permitted hereunder or thereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or Holdings or any of its
Subsidiaries (including any Obligor) contests in any manner the validity or
enforceability of any Financing Document; or any Obligor denies that it has any
or further liability or obligation under any Financing Document, or purports to
revoke, terminate or rescind any Financing Document.
Section 6.02 Acceleration.
------------
If any Event of Default (other than an Event of Default
specified in clause (f) or (g) of Section 6.01 hereof with respect to the
Issuer) occurs and is continuing under this Indenture, the Trustee or the
Holders of at least 25% in principal amount of the then total 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.
Upon the effectiveness of such declaration, such principal and
interest shall be due and payable immediately.
Notwithstanding the foregoing, in the case of an Event of
Default arising under clause (f) or (g) of Section 6.01 hereof with respect to
the Issuer, all outstanding Notes shall be due and payable immediately without
further action or notice.
The Required Holders may on behalf of all of the Holders by
written notice to the Trustee rescind an acceleration and its consequences if
the rescission would not conflict with any judgment or decree and if all
existing Events of Default (except nonpayment of principal, interest, or premium
that has become due solely because of the acceleration) have been cured or
waived.
Section 6.03 Other Remedies.
--------------
If an Event of Default has occurred and is continuing, then in
each case the Notes will accrue interest at the stated interest rate on the
Notes plus the Default Interest Rate until such time as no such Event of Default
shall be continuing (to the extent that the payment of such interest shall be
legally enforceable). At any other time, any amounts payable under or in respect
of the Notes not paid when due will accrue interest at the stated interest rate
on the Notes plus the Default Interest Rate until such time as such amounts are
paid in full, including any interest thereon (to the extent that the payment of
such overdue interest shall be legally enforceable). Default interest shall be
payable in cash on demand and, to the extent applicable, in accordance with
Section 2.12 hereof.
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.
66
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 Required Holders may on behalf of the Holders of all of
the Notes by written notice to the Trustee waive any existing Default and its
consequences hereunder, except a continuing Default in the payment of interest
on, premium, if any, or the principal of any Note held by a non-consenting
Holder (including in connection with an Asset Sale Offer or a Change of Control
Offer) or in respect of any other matter that requires the consent of all
Holders pursuant to Section 9.02(b); provided, subject to Section 6.02 hereof,
that the Required Holders may rescind an acceleration and its consequences,
including any related payment default that resulted from such 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.
-------------------
Subject to Section 7.01(e), the Required Holders 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 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:
(a) such Holder has previously given the Trustee notice that
an Event of Default is continuing;
(b) Holders of at least 10% in principal amount of the total
outstanding Notes have requested the Trustee to pursue the remedy;
(c) the Trustee has not complied with such request within 30
days after the receipt thereof and the offer of security or indemnity
satisfactory to the Trustee; and
(d) the Required Holders have not given the Trustee a
direction inconsistent with such request within such 30-day period.
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.
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Section 6.08 Collection Suit by Trustee.
--------------------------
If an Event of Default specified in Section 6.01(a) or (b)
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 Issuer 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 Issuer, 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 Default or Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Default or 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.
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
Issuer (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
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and counsel, and any other amounts due the Trustee under Section 7.06 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 7.06 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 7.06 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 Issuer 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
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, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
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(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 liabilities 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) The Trustee shall be under no obligation to exercise any
of its rights or powers under this Indenture at the request or direction of any
of the Holders of the Notes unless the Holders have offered to the Trustee
reasonable indemnity 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 Issuer. Money
held in trust by the Trustee need not be segregated from other funds 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 Issuer, personally or
by agent or attorney at the sole cost of the Issuer 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
70
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 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 Issuer shall be sufficient if
signed by an Officer of the Issuer.
(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 of Event of 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.
(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.
(j) In no event shall the Trustee be charged with any
knowledge of any of the Financing Documents referred to herein, except this
Indenture and the Notes issued hereunder.
Section 7.03 Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Issuer or any
Affiliate of the Issuer with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Section 7.09 hereof.
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 Issuer's use of the proceeds from the Notes or
any money paid to the Issuer or upon the Issuer's direction under any provision
71
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 deliver to Holders of Notes a notice of the
Default within 15 Business Days after it occurs. Except in the case of a default
in payment of principal of or interest on a Note, the Trustee may withhold the
notice if and so long as the board of directors of the Trustee, the executive or
any trust committee of such directors or Responsible Officers of the Trustee in
good faith determine that withholding the notice is in the interests of Holders
of the Notes. The Trustee shall not be deemed to know of any Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is 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.
Section 7.06 Compensation and Indemnity.
--------------------------
The Issuer shall pay to the Trustee 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 Issuer shall reimburse the Trustee promptly upon request for all
reasonable disbursements, advances and expenses incurred or made by it in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
The Issuer 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 trust and the
performance of its duties hereunder (including the costs and expenses of
enforcing this Indenture against the Issuer or any of the Guarantors (including
this Section 7.06) or defending itself against any claim whether asserted by any
Holder, the Issuer or any Guarantor, or liability in connection with the
acceptance, exercise or performance of any of its powers or duties hereunder).
The Trustee shall notify the Issuer promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Issuer shall not relieve the
Issuer of its obligations hereunder. The Issuer shall defend the claim and the
Trustee may have separate counsel and the Issuer shall pay the fees and expenses
of such counsel. The Issuer need not reimburse any expense or indemnify against
any loss, liability or expense incurred by the Trustee through the Trustee's own
willful misconduct, negligence or bad faith.
The obligations of the Issuer under this Section 7.06 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 Issuer and the
Guarantors in this Section 7.06, the Trustee shall have a Lien prior to the
Notes on all money or property held or collected by the Trustee, except that
held in trust to pay principal and interest on particular Notes. Such Lien shall
survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(f) or (g) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.
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Section 7.07 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 7.07. The Trustee may
resign in writing at any time upon 30 days' prior written notice to the Issuer
and be discharged from the trust hereby created by so notifying the Issuer. The
Required Holders may remove the Trustee by so notifying the Trustee and the
Issuer in writing. The Issuer may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.09 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.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Issuer shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Required Holders may appoint a successor Trustee to replace the successor
Trustee appointed by the Issuer.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee (at the
Issuer's expense), the Issuer 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 7.09 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 Issuer. 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 deliver a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee; provided all sums owing to the
Trustee hereunder have been paid and subject to the Lien provided for in Section
7.06 hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.07, the Issuer's obligations under Section 7.06 hereof shall continue for the
benefit of the retiring Trustee.
Section 7.08 Successor Trustee by Merger, etc.
--------------------------------
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.09 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
73
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $100,000,000.00 as set forth in its most recent published annual report of
condition.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
--------------------------------------------------------
The Issuer may at any time, at the option of its Board of
Directors evidenced by a resolution set in an Officer's Certificate, elect to
have either Section 8.02 or 8.03 hereof applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
------------------------------
Upon the Issuer's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Issuer and each of 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 on the date the conditions set forth below
are satisfied ("Legal Defeasance"). For this purpose, Legal Defeasance means
that the Issuer and the Guarantors shall be deemed to have paid and discharged
the entire Indebtedness represented by the outstanding Notes, which shall
thereafter be deemed to be "outstanding" only for the purposes of Section 8.05
hereof and the other Sections of this Indenture referred to in (a) and (b)
below, and to have satisfied all its other obligations under such Notes and this
Indenture including that of the Guarantors (and the Trustee, on demand of and at
the expense of the Issuer, shall execute proper instruments acknowledging the
same), except for the following provisions which shall survive until otherwise
terminated or discharged hereunder:
(a) the rights of Holders of Notes to receive payments in
respect of the principal of, premium, if any, and interest on the 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 Issuer'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 Issuer's and the Guarantors' obligations in connection
therewith; and
(d) this Section 8.02.
------------
Subject to compliance with this Article 8, the Issuer may
exercise its option under this Section 8.02 notwithstanding the prior exercise
of its option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
-------------------
Upon the Issuer's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Issuer 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, 4.04, and 4.06 through 4.19 hereof and clauses (iv) and (v) of Section
5.01(a), Sections 5.01(c) and 5.01(d) hereof with respect to the outstanding
Notes on and after the date the conditions set forth in Section 8.04 hereof are
74
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, the Issuer 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 shall be unaffected thereby. In addition, upon the
Issuer'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(c) through (k) hereof shall not constitute
Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
------------------------------------------
The following shall be the conditions to the application of
either Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance with respect to the Notes:
(a) the Issuer must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Notes, cash in U.S. dollars,
Government Securities, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, premium, if any, and interest due on the
Notes on the date of Stated Maturity or on the redemption date, as the case may
be, of such principal, premium, if any, or interest on such Notes and the Issuer
must specify whether such Notes are being defeased to maturity or to a
particular redemption date;
(b) in the case of Legal Defeasance, the Issuer shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the
Trustee confirming that, subject to customary assumptions and exclusions,
(i) the Issuer has received from, or there has been
published by, the United States Internal Revenue Service a ruling, or
(ii) since the issuance of the Notes, there has been
a change in the applicable U.S. federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall
confirm that, subject to customary assumptions and exclusions, the
Holders and Beneficial Owners of the Notes will not recognize income,
gain or loss for U.S. federal income tax purposes, as applicable, as a
result of such Legal Defeasance and will be subject to U.S. federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance had not
occurred;
(c) in the case of Covenant Defeasance, the Issuer shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the
Trustee confirming that, subject to customary assumptions and exclusions, the
Holders and Beneficial Owners of the Notes will not recognize income, gain or
75
loss for U.S. federal income tax purposes as a result of such Covenant
Defeasance and will be subject to such tax on the same amounts, in the same
manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
(d) the Issuer shall have delivered to the Trustee an Opinion
of Counsel reasonably acceptable to the Trustee confirming that, subject to
customary assumptions and exclusions, the Holders and Beneficial Owner of the
Notes will not recognize income, gain or loss for U.K. tax purposes as a result
of such Legal Defeasance or Covenant Defeasance, as the case may be, and will be
subject to such U.K. tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance or Covenant
Defeasance, as the case may be, had not occurred, and no withholding Tax will be
imposed by the United Kingdom (or any political subdivision of, or any authority
in, or of, the United Kingdom having the power to tax) on any payments under or
in respect of the Notes as a result of such Legal Defeasance or Covenant
Defeasance, as the case may be;
(e) no Default (other than that resulting from borrowing funds
to be applied to make such deposit and any similar and simultaneous deposit
relating to other Indebtedness, and in each case the granting of Liens in
connection therewith) shall have occurred and be continuing on the date of such
deposit;
(f) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under the Credit
Facilities or any other material agreement or instrument (other than this
Indenture) to which, Holdings or any of its Subsidiaries is a party or by which
Holdings or any of its Subsidiaries is bound (other than that resulting from any
borrowing of funds to be applied to make the deposit required to effect such
Legal Defeasance or Covenant Defeasance and any similar and simultaneous deposit
relating to other Indebtedness, and the granting of Liens in connection
therewith);
(g) the Issuer shall have delivered to the Trustee an Opinion
of Counsel to the effect that, as of the date of such opinion and subject to
customary assumptions and exclusions following the deposit, the trust funds will
not be subject to the effect of Section 547 of Title 11 of the United States
Code;
(h) the Issuer shall have delivered to the Trustee an
Officer's Certificate stating that the deposit was not made by the Issuer with
the intent of defeating, hindering, delaying or defrauding any creditors of the
Issuer or any Guarantor or others; and
(i) the Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel (which Opinion of Counsel may be
subject to customary assumptions and exclusions) each stating that all
conditions precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance, as the case may be, have been complied with.
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 Issuer or a Guarantor acting as Paying
76
Agent) as the Trustee may determine, to the Holders of such Notes of all sums
due and to become due thereon in respect of principal, premium, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Issuer shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or 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 Issuer from time to time upon the
request of the Issuer 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 Issuer.
-------------------
Any money deposited with the Trustee or any Paying Agent, or
then held by the Issuer, in trust for the payment of the principal of, premium,
if any, or interest on any Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Issuer on its request or (if then held by the Issuer) shall be
discharged from such trust; and the Holder of such Note shall thereafter look
only to the Issuer for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Issuer
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 Issuer'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 Issuer makes any payment of
principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Issuer shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
-----------------------------------
Notwithstanding Section 9.02 hereof, the Issuer and the
Trustee may amend or supplement this Indenture and any Guarantee or Notes
without the consent of any Holder:
(a) to provide for uncertificated Notes of such series in
addition to or in place of certificated Notes;
(b) to comply with Section 5.01 hereof;
77
(c) to secure the Notes as required by this Indenture
including pursuant to Section 4.08;
(d) to evidence and provide for the acceptance and appointment
under this Indenture of a successor Trustee thereunder pursuant to the
requirements thereof;
(e) to provide for the issuance of exchange notes or private
exchange notes, which are identical to exchange notes except that they are not
freely transferable;
(f) to add a Guarantor under this Indenture;
(g) during any period that is not a Holding Period, to make
any amendment to the provisions of this Indenture relating to the transfer and
legending of Notes as permitted by this Indenture, including, without limitation
to facilitate the issuance and administration of the Notes; provided, however,
that, (i) compliance with this Indenture as so amended would not result in Notes
being transferred in violation of the Securities Act or any applicable
securities law and (ii) such amendment does not adversely affect the rights of
Holders to transfer Notes;
(h) during any period that is not a Holding Period, to cure
any ambiguity, omission, defect or inconsistency contained herein;
(i) during any period that is not a Holding Period, to add to
the covenants of the Issuer for the benefit of the Holders or to surrender any
right or power conferred upon the Issuer or the other Obligors; or
(j) during any period that is not a Holding Period, to make
any change that does not adversely affect the legal rights hereunder of any
Holder.
Upon the request of the Issuer accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 7.02 and 9.05 hereof, the Trustee shall join with the
Issuer in the execution of any amended or supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall
not be obligated to enter into such amended or supplemental indenture that
affects its own rights, duties or immunities under this Indenture or otherwise.
Section 9.02 With Consent of Holders of Notes.
--------------------------------
(a) Except as provided below in this Section 9.02, the Issuer
and the Trustee may amend or supplement this Indenture, the Notes and the
Guarantees with the consent of the Required Holders voting as a single class
(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 (other
than a Default or Event of Default in the payment of the principal of, premium,
if any, or interest on the Notes, except a payment default resulting from an
acceleration that has been rescinded) or compliance with any provision of this
Indenture, the Guarantees or the Notes may be waived with the consent of the
Required Holders voting as a single class (including 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.
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Upon the request of the Issuer accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid,
and upon receipt by the Trustee of the documents described in Section 7.02 and
9.05 hereof, the Trustee shall join with the Issuer in the execution of such
amended or supplemental indenture unless such amended or supplemental indenture
directly affects the Trustee's own rights, duties or immunities under this
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.
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Issuer shall deliver to the Holders of Notes
affected thereby such amendment, supplement or waiver and a notice briefly
describing the amendment, supplement or waiver. Any failure of the Issuer to
deliver 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.
(b) Without the consent of each Holder of Notes, an amendment,
supplement or waiver under this Section 9.02 may not:
(i) reduce the principal amount of Notes whose
Holders must consent to an amendment or waiver;
(ii) change the fixed final maturity of any such Note
or alter or waive the provisions with respect to the redemption of such
Notes (other than provisions relating to Section 3.10, Section 4.09 and
Section 4.10 hereof to the extent that any such amendment or waiver
does not have the effect of reducing the principal of or changing the
fixed final maturity of any such Note or altering or waiving the
provisions with respect to the redemption of such Notes);
(iii) reduce the rate of or change the time for
payment of interest on any Note;
(iv) make any Note payable in money other than that
stated therein;
(v) make any change in the provisions of this
Indenture relating to the rights of Holders to receive payments of
principal of or premium, if any, or interest on the Notes;
(vi) make any change in the amendment and waiver
provisions of this Section 9.02(b);
(vii) impair the right of any Holder to receive
payment of principal of, or interest on such Holder's Notes on or after
the due dates therefor or to institute suit for the enforcement of any
payment on or with respect to such Holder's Notes; or
(viii) except as expressly permitted by this
Indenture, modify the Guarantees in any manner adverse to the Holders
of the Notes.
Section 9.03 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 receives written
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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.
The Issuer 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 9.04 Notation on or Exchange of Notes.
--------------------------------
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The Issuer
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 9.05 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 Issuer 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 referred to in
by Section 7.02 hereof, an Officer's Certificate and an Opinion of Counsel
stating that (i) the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture including, Section 9.01(g)(i) and (ii)
and Section 9.01(j) and (ii) that such amendment, supplement or waiver is the
legal, valid and binding obligation of the Issuer and any Guarantors party
thereto, enforceable against them in accordance with its terms, subject to
customary exceptions, and complies with the provisions hereof. Notwithstanding
the foregoing, no Opinion of Counsel will be required for the Trustee to execute
any amendment or supplement adding a new Guarantor under this Indenture.
Section 9.06 Payment for Consent.
-------------------
Neither the Issuer nor any Affiliate of the Issuer shall,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder 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 all Holders and is paid to
all Holders that so consent, waive or agree to amend in the time frame set forth
in solicitation documents relating to such consent, waiver or agreement.
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ARTICLE 10
GUARANTEES
Section 10.01 Guarantee.
---------
Subject to this Article 10, each of the Guarantors hereby,
jointly and severally, absolutely and 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 or the obligations of the Issuer hereunder or thereunder,
that: (a) the principal of, interest, and premium, if any, on the Notes shall be
promptly paid in full when due, whether at maturity, by acceleration, demand,
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 Issuer to the
Holders or the Trustee 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, the same Obligations 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 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 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
Issuer, 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 Issuer,
any right to require a proceeding first against the Issuer, 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 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 Issuer, the Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Issuer or
the Guarantors, any amount paid either to the Trustee 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, (a) 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 (b) 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.
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Each Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Issuer
for liquidation, reorganization, should the Issuer 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 Issuer'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.
The Guarantee issued by any Guarantor shall be a general
senior obligation of such Guarantor.
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 Subsidiary 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 Subsidiary 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 or
foreign law to the extent applicable to any guarantee. To effectuate the
foregoing intention, the Trustee, the Holders and the Subsidiary Guarantors
hereby irrevocably agree that the obligations of each Subsidiary 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 Subsidiary
Guarantor (including, without limitation, all senior Indebtedness of such
Subsidiary 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
Subsidiary Guarantor under this Article 10, result in the obligations of such
Subsidiary Guarantor under its guarantee not constituting a fraudulent
conveyance or fraudulent transfer under applicable law. Each Subsidiary
Guarantor that makes a payment under the Guarantee shall be entitled upon
payment in full of all guaranteed obligations under this Indenture to a
contribution from each other Subsidiary Guarantor in an amount equal to such
other Subsidiary Guarantor's pro rata portion of such payment based on the
respective net assets of all the Subsidiary Guarantors at the time of such
payment determined in accordance with GAAP.
Section 10.03 Execution and Delivery.
----------------------
To evidence its Guarantee set forth in Section 10.01 hereof,
each Guarantor hereby agrees that this Indenture shall be executed on behalf of
such Guarantor by its President, one of its Vice Presidents or one of its
Assistant Vice Presidents or a Director in the case of each Obligor organized
and operated under the laws of England and Wales.
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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 of a Guarantor 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.
Section 10.04 Subrogation.
-----------
Each Guarantor shall be subrogated to all rights of Holders of
Notes against the Issuer 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 Issuer 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 Guarantee by a Guarantor shall be automatically and
unconditionally released and discharged, and no further action by such
Guarantor, the Issuer or the Trustee is required for the release of such
Guarantor's Guarantee, upon:
(a) (A) any sale, exchange or transfer (by merger or
otherwise) of the Capital Stock of such Guarantor (including any sale,
exchange or transfer), after which the applicable Guarantor is no
longer a Subsidiary of Holdings or all or substantially all the assets
of such Guarantor, which sale, exchange or transfer is made in
compliance with the applicable provisions of this Indenture; or (B) the
Issuer exercising its Legal Defeasance option or Covenant Defeasance
option in accordance with Article 8 hereof or the Issuer's obligations
under this Indenture being discharged in accordance with the terms of
this Indenture; and
(b) delivery by such Guarantor to the Trustee and (during any
period that is a Holding Period, the Holders) of 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.
Section 10.07 Rights of Holders.
-----------------
The Guarantors consent and agree that the Holders may, at any
time and from time to time, without notice or demand, and without affecting the
enforceability or continuing effectiveness hereof: (i) amend, extend, renew,
compromise, discharge, accelerate or otherwise change the time for payment or
the terms of the Obligations under the Financing Documents or any part thereof;
and (ii) release or substitute one or more of any endorsers or other guarantors
of any of the Obligations under the Financing Documents. Without limiting the
83
generality of the foregoing, the Guarantors consent to the taking of, or failure
to take, any action which might in any manner or to any extent vary the risks of
the Guarantors under this Guarantee or which, but for this provision, might
operate as a discharge of the Guarantors.
Section 10.08 Certain Waivers.
---------------
The Guarantors hereby waive: (i) any defense arising by reason
of any disability or other defense of the Issuer or any Guarantor, or the
cessation from any cause whatsoever (including any act or omission of any
Obligor) of the liability of the Issuer; (ii) any defense based on any claim
that the Guarantors obligations exceed or are more burdensome than those of the
Issuer; (iii) the benefit of any statute of limitations affecting the
Guarantors' liability hereunder; (iv) any right to proceed against the Issuer,
proceed against or exhaust any security for the Obligations under the Financing
Documents, or pursue any other remedy in the power of any Obligor whatsoever;
(v) any benefit of and any right to participate in any security now or hereafter
held by any Obligor; and (vi) to the fullest extent permitted by law, any and
all other defenses or benefits that may be derived from or afforded by
applicable law limiting the liability of or exonerating guarantors or sureties.
The Guarantors expressly waive all setoffs and counterclaims and all
presentments, demands for payment or performance, notices of nonpayment or
nonperformance, protests, notices of protest, notices of dishonor and all other
notices or demands of any kind or nature whatsoever with respect to the
Obligations under the Financing Documents, and all notices of acceptance of the
Guarantee or of the existence, creation or incurrence of new or additional
Obligations under the Financing Documents.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge.
--------------------------
This Indenture shall be discharged and shall cease to be of
further effect as to all Notes, when either:
(a) all 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, have been delivered
to the Trustee for cancellation; or
(b) (A) all Notes not theretofore delivered to the Trustee for
cancellation have become due and payable by reason of the making of a notice of
redemption or otherwise, shall become due and payable within one year or are to
be called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Issuer and the Issuer or any Guarantor have irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust
solely for the benefit of the Holders of the Notes, cash in U.S. dollars,
Government Securities, or a combination thereof, in such amounts as will be
sufficient without consideration of any reinvestment of interest to pay and
discharge the entire indebtedness on the Notes not theretofore delivered to the
Trustee for cancellation for principal, premium, if any, and accrued interest to
the date of maturity or redemption;
(B) no Default (other than that resulting from
borrowing funds to be applied to make such deposit and any similar and
simultaneous deposit relating to other Indebtedness) with respect to this
Indenture or the Notes shall have occurred and be continuing on the date of such
deposit or shall occur as a result of such deposit and such deposit will not
result in a breach or violation of, or constitute a default under the Credit
84
Facilities or any other material agreement or instrument (other than this
Indenture) to which the Issuer or any Guarantor is a party or by which the
Issuer or any Guarantor is bound (other than that resulting from any borrowing
of funds to be applied to make such deposit and any similar and simultaneous
deposit relating to other Indebtedness, and the granting of Liens in connection
therewith);
(C) the Issuer has paid or caused to be paid all
sums payable by it under this Indenture; and
(D) the Issuer has delivered irrevocable instructions to
the Trustee to apply the deposited money toward the payment of the Notes at
maturity or the redemption date, as the case may be.
In addition, the Issuer must deliver an Officer's Certificate
and an Opinion of Counsel to the Trustee stating that all conditions precedent
to satisfaction and discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this
Indenture, Section 7.06 shall survive and if money shall have been deposited
with the Trustee pursuant to subclause (A) of clause (b) 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 Issuer acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) 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 judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Issuer'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 Issuer has made any
payment of principal of, premium, if any, or interest on any Notes because of
the reinstatement of its obligations, the Issuer 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.
ARTICLE 12
MISCELLANEOUS
Section 12.01 Notices.
-------
Any notice or communication by the Issuer, any Guarantor or
the Trustee to the others is duly given if in writing and delivered in person or
mailed by first-class mail (or registered or certified, return receipt
requested), fax or overnight air courier guaranteeing next day delivery, to the
others' address:
85
If to the Issuer and/or any Guarantor:
Trinity Acquisition Limited
c/x Xxxxxx Group Holdings Limited
00 Xxxx Xxxxxx
Xxxxxx XX
Xxxxxx Xxxxxxx
Fax No.: 00 (0)00 0000 0000
Attention: Xxxx X. Xxxxxxxx
with a copy to:
Willis Legal
One World Financial Center
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: 000-000-0000
Attention: Xxxx X. Xxxxxxxx
with a copy to:
Xxxx Xxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
If to the Trustee:
The Bank of New York Mellon
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, XX 00000
Attention: Corporate Trust Global Finance Unit
Fax No.: (000) 000-0000
The Issuer, 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: (i) at the time delivered by
hand, if personally delivered; (ii) five calendar days after being deposited in
the mail, postage prepaid, if mailed by first-class mail; (iii) when receipt
acknowledged, if faxed; (iv) and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery;
provided that any notice or communication delivered to the Trustee shall be
deemed effective upon actual receipt thereof.
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. 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.
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If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Issuer mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
In addition to the foregoing, the Trustee agrees to accept and
act upon instructions or directions pursuant to this Indenture sent by unsecured
electronic methods; provided, however, that (a) the party providing such written
instructions, subsequent to such transmission or written instructions, shall
provide the originally executed instructions or directions to the Trustee in a
timely manner, and (b) such originally executed instructions or directions shall
be signed by an authorized representative of the party providing such
instructions or directions. If the party elects to give the Trustee e-mail or
facsimile instructions (or instructions by a similar electronic method) and the
Trustee in its discretion elects to act upon such instructions, the Trustee's
understanding of such instructions shall be deemed controlling. The Trustee
shall not be liable for any losses, costs or expenses arising directly or
indirectly from the Trustee's reliance upon and compliance with such
instructions notwithstanding if such instructions conflict or are inconsistent
with a subsequent written instruction. The party providing electronic
instructions agrees to assume all risks arising out of the use of such
electronic methods to submit instructions and directions to the Trustee,
including without limitation the risk of the Trustee acting on unauthorized
instructions, and the risk or interception and misuse by third parties.
Section 12.02 Service of Process.
------------------
Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 12.01. In addition,
each Obligor not organized in the US or a State thereof (each such Obligor a
"Foreign Obligor") hereby irrevocably appoints CT Corporation System (the
"Process Agent") with an office on the date hereof at 000 Xxxxxx Xxxxxx, Xxx
Xxxx, XX 00000, as its agent to receive on behalf of such Obligor and its
property service of copies of the summons and complaint and any other process
which may be served in any such action or proceeding. Such service may be made
by mailing or delivering a copy of such process to such Obligor in care of the
Process Agent at the Process Agent's address above, and such Obligor hereby
irrevocably authorizes and directs the Process Agent to receive such service on
its behalf. As an alternative method of service, each Obligor also irrevocably
consents to the service of any and all process in any such action or proceeding
by the mailing of copies of such process to such Obligor at its address
specified in Section 12.01 (such service to be effective seven days after
mailing thereof). Each Foreign Obligor covenants and agrees that it shall take
any and all reasonable action, including the execution and filing of any and all
documents, that may be necessary to continue the designation of the Process
Agent above in full force and effect, and to cause the Process Agent to continue
to act in such capacity.
Nothing in this Section 12.02 shall affect the right of any
Purchaser or the Trustee to serve legal process in any other manner permitted by
applicable law or affect the right of any Purchaser or the Trustee to bring any
suit, action or proceeding against each Obligor or its property in the courts of
other jurisdictions, including England and Wales.
Section 12.03 Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Issuer or any of the
Guarantors to the Trustee to take any action under this Indenture, the Issuer or
such Guarantor, as the case may be, shall furnish to the Trustee upon request:
87
(a) An Officer's Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.04 hereof) stating that, in the opinion of the signer, all conditions
precedent and covenants, if any, provided for in this Indenture 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 12.04 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
Section 12.04 Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture 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 or her
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 12.05 Rules by Trustee and Agents.
---------------------------
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
Section 12.06 No Personal Liability of Directors, Officers, Employees and
Stockholders.
------------
No director, officer, employee, incorporator or stockholder of
the Issuer or any Guarantor or any of their parent companies shall have any
liability for any obligations of the Issuer or the Guarantors under the Notes,
the Guarantees or this Indenture or for any claim based on, in respect of, or by
reason of such obligations or their creation. Each Holder by accepting Notes
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
Section 12.07 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 12.08 Waiver of Jury Trial.
--------------------
EACH OF THE ISSUER, 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
88
THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 12.09 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; it being
understood that the Trustee shall use reasonable efforts, which are consistent
with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.
Section 12.10 No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Issuer or its Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section 12.11 Successors.
----------
All agreements of the Issuer in this Indenture and the Notes
shall bind its successors. All agreements of the Trustee 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 10.06 hereof.
Section 12.12 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 12.13 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.
Section 12.14 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.
[Signatures on following page]
89
IN WITNESS WHEREOF, the parties have executed this Indenture
as of the date first written above.
TRINITY ACQUISITION LIMITED
By: _____________________________
Name:
Title:
XXXXXX GROUP HOLDINGS LIMITED
By: _____________________________
Name:
Title:
XXXXXX INVESTMENT UK HOLDINGS LIMITED
TA I LIMITED
XX XX LIMITED
TA III LIMITED
XX XX LIMITED
XXXXXX GROUP LIMITED
By: _____________________________
Name:
Title:
XXXXXX NORTH AMERICA INC.
By: _____________________________
Name:
Title:
THE BANK OF NEW YORK MELLON,
as Trustee
By:
---------------------------------
Name:
Title:
