EXECUTION COPY
EXHIBIT 4
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K&F ACQUISITION, INC.
(to be known as
K&F Industries, Inc.
following the consummation of the Merger)
and
U.S. BANK NATIONAL ASSOCIATION
as Trustee
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INDENTURE
Dated as of November 18, 2004
7-3/4% SENIOR SUBORDINATED NOTES DUE 2014
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
--------------- -----------------
310(a)(1).......................................................................... 7.10
(a)(2)......................................................................... 7.10
(a)(3)......................................................................... N.A.
(a)(4)......................................................................... N.A.
(a)(5)......................................................................... 7.10
(b)............................................................................ 7.10
(c)............................................................................ N.A.
311(a)............................................................................. 7.11
(b)............................................................................ 7.11
(c)............................................................................ N.A.
312(a)............................................................................. 2.05
(b)............................................................................ 11.03
(c)............................................................................ 11.03
313(a)............................................................................. 7.06
(b)(1)......................................................................... 10.03
(b)(2)......................................................................... 7.06, 7.07
(c)............................................................................ 7.06, 11.02
(d)............................................................................ 7.06
314(a)............................................................................. 11.05
(b)............................................................................ N.A.
(c)(1)......................................................................... N.A.
(c)(2)......................................................................... N.A.
(c)(3)......................................................................... N.A.
(d)............................................................................ N.A.
(e)............................................................................ 10.05
(f)............................................................................ NA
315(a)............................................................................. 7.01
(b)............................................................................ N.A.
(c)............................................................................ 7.01
(d)............................................................................ 7.01
(e)............................................................................ 6.11
316(a)(last sentence).............................................................. 2.09
(a)(1)(A)...................................................................... 6.05
(a)(1)(B)...................................................................... 6.04
(a)(2)......................................................................... N.A.
(b)............................................................................ 6.07
(c)............................................................................ 2.12
317(a)(1).......................................................................... 6.08
(a)(2)......................................................................... 6.09
(b)............................................................................ 2.04
318(a)............................................................................. N.A.
(b)............................................................................ N.A.
(c)............................................................................ 11.01
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N.A. means Not Applicable
*This Cross-Reference Table is not part of the Indenture
TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE............................................................. 1
SECTION 1.01. Definitions........................................................................ 1
SECTION 1.02. Other Definitions.................................................................. 24
SECTION 1.03. Incorporation by Reference of TIA.................................................. 24
SECTION 1.04. Rules of Construction.............................................................. 25
ARTICLE 2 THE NOTES.............................................................................................. 25
SECTION 2.01. Form and Dating.................................................................... 25
SECTION 2.02. Denominations...................................................................... 28
SECTION 2.03. Execution and Authentication....................................................... 28
SECTION 2.04. Registrar and Paying Agent......................................................... 29
SECTION 2.05. Paying Agent to Hold Money in Trust................................................ 29
SECTION 2.06. Holder Lists....................................................................... 30
SECTION 2.07. Transfer and Exchange.............................................................. 30
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Notes......................................... 41
SECTION 2.09. Outstanding Notes.................................................................. 42
SECTION 2.10. Treasury Notes..................................................................... 42
SECTION 2.11. Temporary Notes.................................................................... 42
SECTION 2.12. Cancellation....................................................................... 42
SECTION 2.13. Defaulted Interest................................................................. 43
SECTION 2.14. Computation of Interest............................................................ 43
SECTION 2.15. Issuance of Additional Notes....................................................... 43
SECTION 2.16. One Class of Notes................................................................. 43
SECTION 2.17. CUSIP, ISIN or Other Similar Numbers............................................... 43
ARTICLE 3 REDEMPTION AND PREPAYMENT.............................................................................. 44
SECTION 3.01. Notices to Trustee................................................................. 44
SECTION 3.02. Selection of Notes to Be Redeemed.................................................. 44
SECTION 3.03. Notice of Redemption............................................................... 44
SECTION 3.04. Effect of Notice of Redemption..................................................... 45
SECTION 3.05. Deposit of Redemption Price........................................................ 45
SECTION 3.06. Notes Redeemed in Part............................................................. 46
SECTION 3.07. Optional Redemption................................................................ 46
SECTION 3.08. Mandatory Special Redemption....................................................... 46
SECTION 3.09. Mandatory Redemption............................................................... 47
ARTICLE 4 COVENANTS.............................................................................................. 47
SECTION 4.01. Payment of Notes................................................................... 47
SECTION 4.02. Maintenance of Office or Agency.................................................... 47
SECTION 4.03. Reports............................................................................ 48
SECTION 4.04. Compliance Certificate............................................................. 49
SECTION 4.05. Taxes.............................................................................. 49
SECTION 4.06. Stay, Extension and Usury Laws..................................................... 49
SECTION 4.07. Restricted Payments................................................................ 49
SECTION 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries..................... 52
SECTION 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock......................... 54
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SECTION 4.10. Asset Sales........................................................................ 57
SECTION 4.11. Transactions with Affiliates....................................................... 60
SECTION 4.12. Liens.............................................................................. 62
SECTION 4.13. Business Activities................................................................ 62
SECTION 4.14. Corporate Existence................................................................ 62
SECTION 4.15. Offer to Repurchase upon Change of Control......................................... 62
SECTION 4.16. Future Subsidiary Guarantees....................................................... 64
SECTION 4.17. Designation of Restricted and Unrestricted Subsidiaries............................ 64
SECTION 4.18. Payments for Consent............................................................... 64
SECTION 4.19. Limitation on Layering Debt........................................................ 64
ARTICLE 5 SUCCESSORS............................................................................................. 65
SECTION 5.01. Merger, Consolidation or Sale of Assets............................................ 65
SECTION 5.02. Successor Corporation Substituted.................................................. 66
ARTICLE 6 DEFAULTS AND REMEDIES.................................................................................. 66
SECTION 6.01. Events of Default.................................................................. 66
SECTION 6.02. Acceleration....................................................................... 68
SECTION 6.03. Other Remedies..................................................................... 68
SECTION 6.04. Waiver of Past Defaults............................................................ 69
SECTION 6.05. Control by Majority................................................................ 69
SECTION 6.06. Limitation on Suits................................................................ 69
SECTION 6.07. Rights of Holders of Notes to Receive Payment...................................... 69
SECTION 6.08. Collection Suit by Trustee......................................................... 70
SECTION 6.09. Trustee May File Proofs of Claim................................................... 70
SECTION 6.10. Priorities......................................................................... 70
SECTION 6.11. Undertaking for Costs.............................................................. 71
ARTICLE 7 TRUSTEE................................................................................................ 71
SECTION 7.01. Duties of Trustee.................................................................. 71
SECTION 7.02. Rights of Trustee.................................................................. 72
SECTION 7.03. Individual Rights of Trustee....................................................... 73
SECTION 7.04. Trustee's Disclaimer............................................................... 73
SECTION 7.05. Notice of Defaults................................................................. 73
SECTION 7.06. Reports by Trustee to Holders of the Notes......................................... 74
SECTION 7.07. Compensation and Indemnity......................................................... 74
SECTION 7.08. Replacement of Trustee............................................................. 75
SECTION 7.09. Successor Trustee by Merger, etc................................................... 75
SECTION 7.10. Eligibility; Disqualification...................................................... 76
SECTION 7.11. Preferential Collection of Claims Against the Company.............................. 76
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE............................................................... 76
SECTION 8.01. Option to Effect Legal Defeasance or Covenant Defeasance........................... 76
SECTION 8.02. Legal Defeasance and Discharge..................................................... 76
SECTION 8.03. Covenant Defeasance................................................................ 77
SECTION 8.04. Conditions to Legal or Covenant Defeasance......................................... 77
SECTION 8.05. Deposited Money and Government Securities to Be Held in Trust;
Other Miscellaneous Provisions................................................ 78
SECTION 8.06. Repayment to the Company........................................................... 79
SECTION 8.07. Reinstatement...................................................................... 79
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ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER....................................................................... 79
SECTION 9.01. Without Consent of Holders of Notes................................................ 79
SECTION 9.02. With Consent of Holders of Notes................................................... 80
SECTION 9.03. Compliance with Trust Indenture Act................................................ 81
SECTION 9.04. Revocation and Effect of Consents.................................................. 81
SECTION 9.05. Notice of Amendment; Notation on or Exchange of Notes.............................. 82
SECTION 9.06. Trustee to Sign Amendments, etc.................................................... 82
ARTICLE 10 SUBSIDIARY GUARANTEES................................................................................. 82
SECTION 10.01. Guarantee.......................................................................... 82
SECTION 10.02. Limitation on Guarantor Liability.................................................. 83
SECTION 10.03. Guarantors May Consolidate, etc., on Certain Terms................................. 84
SECTION 10.04. Releases of Subsidiary Guarantees.................................................. 84
ARTICLE 11 SATISFACTION AND DISCHARGE............................................................................ 84
SECTION 11.01. Satisfaction and Discharge......................................................... 84
SECTION 11.02. Application of Trust Funds......................................................... 85
SECTION 11.03. Repayment to Company............................................................... 85
SECTION 11.04. Reinstatement...................................................................... 86
ARTICLE 12 SUBORDINATION......................................................................................... 86
SECTION 12.01. Agreement to Subordinate........................................................... 86
SECTION 12.02. Liquidation; Dissolution; Bankruptcy............................................... 86
SECTION 12.03. Default on Designated Senior Debt.................................................. 87
SECTION 12.04. Acceleration of Notes.............................................................. 87
SECTION 12.05. When Distribution Must Be Paid Over................................................ 88
SECTION 12.06. Notice by the Company.............................................................. 88
SECTION 12.07. Subrogation........................................................................ 88
SECTION 12.08. Relative Rights.................................................................... 88
SECTION 12.09. Subordination May Not Be Impaired by the Company................................... 89
SECTION 12.10. Distribution or Notice to Representative........................................... 89
SECTION 12.11. Rights of Trustee and Paying Agent................................................. 89
SECTION 12.12. Authorization to Effect Subordination.............................................. 90
ARTICLE 13 MISCELLANEOUS......................................................................................... 90
SECTION 13.01. Trust Indenture Act Controls....................................................... 90
SECTION 13.02. Notices............................................................................ 90
SECTION 13.03. Communication by Holders of Notes with Other Holders of Notes...................... 91
SECTION 13.04. Certificate and Opinion as to Conditions Precedent................................. 91
SECTION 13.05. Statements Required in Certificate or Opinion...................................... 92
SECTION 13.06. Rules by Trustee and Agents........................................................ 92
SECTION 13.07. No Personal Liability of Directors, Officers, Employees and
Stockholders.................................................................. 92
SECTION 13.08. Governing Law...................................................................... 93
SECTION 13.09. No Adverse Interpretation of Other Agreements...................................... 93
SECTION 13.10. Successors......................................................................... 93
SECTION 13.11. Severability....................................................................... 93
SECTION 13.12. Counterpart Originals.............................................................. 93
SECTION 13.13. Table of Contents, Headings, etc................................................... 93
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SECTION 13.14. Benefits of Indenture.............................................................. 93
SECTION 13.15. Legal Holidays..................................................................... 93
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING ACCREDITED INVESTORS/INSTITUTIONAL
ACCREDITED INVESTORS
Exhibit E-1 FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT
GUARANTORS
Exhibit E-2 FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY A PERMITTED
SUCCESSOR TO THE COMPANY
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INDENTURE dated as of November 18, 2004 between K&F
Acquisition, Inc., a Delaware corporation (to be known as K&F Industries, Inc.
following the consummation of the Merger) (the "Company") and U.S. Bank National
Association, a national banking association organized under the laws of the
United States, as trustee (the "Trustee").
The Company, the Guarantors and the Trustee agree as follows
for the benefit of each other and for the equal and ratable benefit of the
Holders of the Initial Notes, any Additional Notes and the Exchange Notes (in
each case as defined herein):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS
"144A Global Note" means one or more Restricted Global Notes
that shall represent the aggregate principal amount of the Notes sold in
reliance on Rule 144A.
"Accredited Investor" means an "accredited investor" as
defined in Rule 501(a)(1), (2), (3), (4), (5), (6) or (7) under the Securities
Act.
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such
other Person is merged with or into or became a Subsidiary of such
specified Person, whether or not such Indebtedness is incurred in
connection with, or in contemplation of, such other Person merging with
or into, or becoming a Subsidiary of, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
"Acquisition" shall have the meaning specified in the Offering
Memorandum.
"Additional Interest" means all additional interest then owing
pursuant to the Registration Rights Agreement.
"Additional Notes" means 7-3/4% Senior Subordinated Notes due
2014 of the Company issued in compliance with and under this Indenture after the
Issue Date and having identical terms to the Initial Notes or the Exchange
Notes.
"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," as used with respect to any Person, means 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. For purposes of this definition, the terms
"controlling," "controlled by" and "under common control with" have correlative
meanings.
"Agent" means any Registrar, co-registrar, Paying Agent or
additional paying agent.
"AI Definitive Note" means one or more Restricted Definitive
Note issued to Accredited Investors.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear or Clearstream, as the case may be, that
apply to such transfer or exchange.
"Asset Sale" means:
(1) the sale, lease, conveyance or other disposition of any
assets or rights; provided that the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company
and its Restricted Subsidiaries taken as a whole shall be governed by
the provisions of Section 4.15 and/or the provisions of Section 5.01
and not by the provisions of Section 4.10; and
(2) the issuance of Equity Interests in any of the Company's
Restricted Subsidiaries or the sale of Equity Interests in any of its
Restricted Subsidiaries.
Notwithstanding the preceding, the following items shall not
be deemed to be Asset Sales:
(1) any single transaction or series of related transactions
that involves assets having a fair market value of less than $5.0
million;
(2) a transfer of assets between or among the Company and its
Restricted Subsidiaries;
(3) an issuance of Equity Interests by a Restricted Subsidiary
to the Company or to another Restricted Subsidiary;
(4) the sale or lease of equipment, inventory, accounts
receivable or other assets in the ordinary course of business;
(5) the sale or other disposition of cash or Cash Equivalents;
and
(6) a Restricted Payment or Permitted Investment that is
permitted by Section 4.07 hereof.
"Attributable Debt" in respect of a sale and leaseback
transaction means, at the time of determination, the present value of the
obligation of the lessee for net rental payments during the remaining term of
the lease included in such sale and leaseback transaction including any period
for which such lease has been extended or may, at the option of the lessor, be
extended. Such present value shall be calculated using a discount rate equal to
the rate of interest implicit in such transaction, determined in accordance with
GAAP.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"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" (as that term is used in Section
13(d)(3) of the Exchange Act), such "person" shall be deemed to have beneficial
ownership of all securities that such "person" has the right to acquire by
conversion or exercise of other securities, whether such right is currently
exercisable or is exercisable only upon the occurrence of a subsequent
condition.
"Board of Directors" means:
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(1) with respect to a corporation, the board of directors of
the corporation;
(2) with respect to a partnership, the board of directors of
the general partner of the partnership; and
(3) with respect to any other Person, the board of directors
or committee of such Person serving a similar function.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of a company to have been duly adopted
by the Board of Directors of such company and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"Broker-Dealer" means any broker or dealer registered under
the Exchange Act.
"Business Day" means each day that is not a Legal Holiday.
"Capital Lease Obligation" means, at the time any
determination is to be made, the amount of the liability in respect of a capital
lease that would at that time be required to be capitalized on a balance sheet
in accordance with GAAP.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(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 or limited liability company,
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.
"Cash Equivalents" means:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or
instrumentality of the United States government (provided that the full
faith and credit of the United States is pledged in support of those
securities) having maturities of not more than twelve months from the
date of acquisition;
(3) (i) demand deposits, (ii) certificates of deposit and
eurodollar time deposits with maturities of one year or less from the
date of acquisition, (iii) bankers' acceptances with maturities not
exceeding one year and (iv) overnight bank deposits and other similar
types of investments routinely offered by commercial banks, in each
case, with any lender party to the Credit Agreement or with any
domestic commercial bank having capital and surplus in excess of $250.0
million and a Thomson Bank Watch Rating of "B" or better;
(4) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clauses (2)
and (3) above entered into with any financial institution meeting the
qualifications specified in clause (3) above;
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(5) commercial paper having a rating of at least A-3 from
Xxxxx'x Investors Service, Inc. or P-3 from Standard & Poor's Rating
Services and in each case maturing within 270 days after the date of
acquisition;
(6) securities with maturities of one year or less from the
date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or
territory, the securities of which state, commonwealth, territory,
political subdivision or taxing authority (as the case may be) are
rated at least A by Xxxxx'x Investors Service, Inc. or A by Standard &
Poor's Rating Services; and
(7) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (1)
through (6) of this definition.
"Change of Control" means the occurrence of any of the
following:
(1) the direct or indirect sale, lease, transfer, conveyance
or other disposition (other than by way of merger or consolidation), in
one or a series of related transactions, of all or substantially all of
the properties or assets of the Company and its Restricted Subsidiaries
taken as a whole to any "person" (as that term is used in Section
13(d)(3) of the Exchange Act) other than a Permitted Holder;
(2) the adoption of a plan relating to the liquidation or
dissolution of the Company;
(3) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that
any "person" (as that term is used in Section 13(d)(3) of the Exchange
Act) other than a Permitted Holder becomes the Beneficial Owner,
directly or indirectly, of more than 50% of the Voting Stock of the
Company, measured by voting power rather than number of shares; or
(4) the first day on which a majority of the members of the
Board of Directors of the Company are not Continuing Directors.
"Clearstream" means Clearstream Banking, societe anonyme.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the United States Securities and Exchange
Commission.
"Company" means K&F Acquisition, Inc., until a successor shall
have become such pursuant to the applicable provisions of this Indenture and
thereafter "Company" shall mean such successor.
"Company Order" means a written order of the Company signed by
two Officers of the Company.
"Consolidated Cash Flow" means, with respect to any specified
Person for any period, the Consolidated Net Income of such Person for such
period plus:
(1) provision for taxes based on income or profits of such
Person and its Restricted Subsidiaries for such period, to the extent
that such provision for taxes was deducted in computing such
Consolidated Net Income; plus
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(2) consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued and
whether or not capitalized (including, without limitation, amortization
of debt issuance costs and original issue discount, non-cash interest
payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect
of letter of credit or bankers' acceptance financings, and net of the
effect of all payments made or received (if any) pursuant to Hedging
Obligations), in each such case to the extent that any of the foregoing
was deducted in computing such Consolidated Net Income; plus
(3) depreciation, amortization (including amortization of
goodwill and other intangibles but excluding amortization of prepaid
cash expenses that were paid in a prior period) and other non-cash
charges (excluding any such non-cash charge to the extent that it
represents an accrual of or reserve for cash charges in any future
period or amortization of a prepaid cash expense that was paid in a
prior period) of such Person and its Restricted Subsidiaries for such
period, in each such case to the extent that such depreciation,
amortization and other non-cash charges were deducted in computing such
Consolidated Net Income; plus
(4) management fees and related expenses to Aurora Management
Partners LLC and its Affiliates not to exceed $2.0 million for such
fees in any twelve month period, in each case, to the extent deducted
in computing such Consolidated Net Income; plus
(5) without duplication for periods prior to the date of this
Indenture, all items added back to "EBITDA" for purposes of calculating
"Adjusted EBITDA" in footnote (d) under "Summary Historical and Pro
Forma Consolidated Financial Information" in the Offering Memorandum;
minus
(6) non-cash items increasing such Consolidated Net Income for
such period, other than (i) the accrual of revenue in the ordinary
course of business and (ii) any non-cash items reversing an accrual or
reserve that was excluded from the determination of Consolidated Cash
Flow pursuant to the preceding clause (3)); minus
(7) but solely for the purposes of determining Cumulative
Operating Cash Flow, upon and following the election of the Company to
capitalize Program Investments on its balance sheet, the amount of
Program Investments capitalized for such period.
in each case, on a consolidated basis and determined in accordance with GAAP.
Notwithstanding the preceding sentence, clauses (1) through
(6) relating to amounts of a Restricted Subsidiary of a Person will be added to
(or subtracted from) Consolidated Net Income to compute Consolidated Cash Flow
of such Person only to the extent (and in the same proportion) that the net
income (loss) of such Restricted Subsidiary was included in calculating the
Consolidated Net Income of such Person.
"Consolidated Interest Expense" means, with respect to any
specified Person for any period, the sum, without duplication, of:
(1) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued
(including, without limitation, amortization of debt issuance costs and
original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component
of all payments associated with Capital Lease Obligations, imputed
interest with respect to Attributable Debt, commissions, discounts
-5-
and other fees and charges incurred in respect of letter of credit or
bankers' acceptance financings, and net of the effect of all payments
made or received (if any) pursuant to Hedging Obligations); plus
(2) the consolidated interest of such Person and its
Restricted Subsidiaries that was capitalized during such period.
"Consolidated Net Income" means, with respect to any Person
for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided that:
(1) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of
dividends or distributions paid in cash to the referent Person or a
Restricted Subsidiary thereof;
(2) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of that Net Income
is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its
stockholders;
(3) the cumulative effect of a change in accounting principles
shall be excluded;
(4) any non-cash compensation expense realized for grants of
performance shares, stock options or other rights to officers,
directors and employees of the Company or any Restricted Subsidiary
shall be excluded, provided that such shares, options or other rights
can be redeemed at the option of the holder only for Equity Interests
of the Company (other than Disqualified Stock);
(5) any step-up in cost of sales for inventory arising out of
the application of purchase accounting treatment in connection with the
Transactions shall be excluded; and
(6) to the extent deducted in determining Net Income, (a) the
fees, expenses and other costs incurred in connection with the
consummation of the Transactions and (b) any increase in amortization
or write-off of goodwill or other intangible assets or increased
depreciation or amortization expense arising solely from such
Transactions shall be excluded.
"Continuing Directors" means, as of any date of determination,
any member of the Board of Directors of the Company who:
(1) was a member of such Board of Directors on the date of
this Indenture; or
(2) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing Directors
who were members of such Board at the time of such nomination or
election.
"Corporate Trust Office of the Trustee" means the office of
the Trustee located at 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx or such other
office as it shall notify the Company in writing.
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"Credit Agreement" means that certain Credit Agreement, to be
entered into in connection with the Acquisition, among K&F Acquisition, Inc.,
the lenders parties thereto and Xxxxxx Brothers Inc. and X.X.Xxxxxx Securities
Inc., as Joint Lead Arrangers and Joint Bookrunners, X.X. Xxxxxx Securities
Inc., as Syndication Agent, Xxxxxxx, Sachs & Co. and Citigroup Global Markets
Inc., as Co-Documentation Agents and Xxxxxx Commercial Paper Inc., as
Administrative Agent, including any related notes, guarantees, collateral
documents, instruments and agreements executed in connection therewith, and in
each case as amended, modified, renewed, refunded, replaced or refinanced from
time to time (whether with the original agents or lenders or other agents and
lenders or otherwise, and whether provided under the original credit agreement
or other credit agreements).
"Credit Facilities" means, one or more debt facilities
(including, without limitation, the Credit Agreement) or commercial paper
facilities or indentures, in each case with banks or other institutional lenders
or investors providing for revolving credit loans, term loans, debt securities,
receivables financing (including through the sale of receivables to such lenders
or to special purpose entities formed to borrow from such lenders against such
receivables) or letters of credit and any agreement or agreements governing
Indebtedness incurred to refinance, replace, restructure or refund such
agreements in whole or in part from time to time (whether with the original
agent and lenders or other agents and lenders or otherwise).
"Cumulative Operating Cash Flow" means, for the period
beginning October 1, 2004 through and including the end of the last fiscal
quarter (taken as one accounting period) preceding the date of any proposed
Restricted Payment, Consolidated Cash Flow for the Company and its consolidated
Restricted Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP.
"Cumulative Total Interest Expense" means, for the period
beginning October 1, 2004 through and including the end of the last fiscal
quarter (taken as one accounting period) preceding the date of any proposed
Restricted Payment, Consolidated Interest Expense for the Company and its
consolidated Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP.
"Default" means any event that is, or with the passage of time
or the giving of notice or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 2.01 hereof, 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.
"Depositary" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.01
hereof as the Depositary with respect to the Notes, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Designated Senior Debt" means:
(1) any Indebtedness outstanding under the Credit Agreement;
and
(2) any other Senior Debt permitted under this Indenture the
principal amount of which is $25.0 million or more and that has been
designated in the agreement or instrument governing such Senior Debt as
"Designated Senior Debt."
-7-
"Disqualified Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible, or for
which it is exchangeable, in each case at the option of the holder of the
Capital Stock), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder of the Capital Stock, in whole or in part, on or prior
to the date that is 91 days after the date on which the Notes mature.
Notwithstanding the preceding sentence, any Capital Stock that would constitute
Disqualified Stock solely because the holders of the Capital Stock have the
right to require the Company to repurchase such Capital Stock upon the
occurrence of a change of control or an asset sale shall not constitute
Disqualified Stock if the terms of such Capital Stock provide that the Company
may not repurchase or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies with the covenant contained in
Section 4.07.
"Distribution Compliance Period" means the 40-day distribution
compliance period as defined in Regulation S.
"Domestic Subsidiary" means any Restricted Subsidiary of the
Company that (x) was formed under the laws of the United States or any state of
the United States or the District of Columbia or (y) guarantees or otherwise
provides direct credit support for any Indebtedness of the Company.
"Escrow Agreement" means that certain Escrow and Security
Agreement, to be entered into in the event that the Acquisition does not close
prior to or substantially concurrent with the closing of the issuance of the
Notes, among K&F Acquisition, Inc., U.S. Bank National Association, and Xxxxxx
Brothers Inc., Xxxxxxx, Xxxxx & Co., Citigroup Global Markets Inc. and X.X.
Xxxxxx Securities Inc.
"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 Capital
Stock (other than Disqualified Stock) made for cash on a primary basis by the
Company after the date of this Indenture (but excluding in any event any
issuance pursuant to employee benefit plans or otherwise in compensation to
officers, directors or employees).
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear system, or any successor securities electing agency.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means the 7-3/4% Senior Subordinated Notes
due 2014 to be issued by the Company upon the expiration of an Exchange Offer
pursuant to the terms of a Registration Rights Agreement containing terms
substantially identical to the Initial Notes (except that (i) the transfer
restrictions thereon shall be eliminated (other than as may be imposed by state
securities laws) and (ii) there will be no provision for the payment of
Additional Interest).
"Exchange Offer" means, subject to the terms of a Registration
Rights Agreement, the offer by the Company to the Holders of the opportunity to
exchange their Initial Notes for Exchange Notes pursuant to a registration
statement filed with the Commission.
"Exchange Offer Registration Statement" has the meaning set
forth for such term in a Registration Rights Agreement.
-8-
"Existing Indebtedness" means Indebtedness of the Company and
its Restricted Subsidiaries (other than Indebtedness under the Credit Agreement)
in existence on the date of this Indenture, until such amounts are repaid.
"Fixed Charge Coverage Ratio" means with respect to any
specified Person for any period, the ratio of the Consolidated Cash Flow of such
Person for such period to the Fixed Charges of such Person for such period. In
the event that the specified Person or any of its Restricted Subsidiaries
incurs, assumes, guarantees, repays, repurchases or redeems any Indebtedness
(other than ordinary working capital borrowings) or issues, repurchases or
redeems preferred stock subsequent to the commencement of the period for which
the Fixed Charge Coverage Ratio is being calculated and on or prior to the date
on which the event for which the calculation of the Fixed Charge Coverage Ratio
is made (the "Calculation Date"), then the Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect to such incurrence, assumption, guarantee,
repayment, repurchase or redemption of Indebtedness, or such issuance,
repurchase or redemption of preferred stock, and the use of the proceeds
therefrom as if the same had occurred at the beginning of the applicable
four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge
Coverage Ratio:
(1) acquisitions that have been made by the specified Person
or any of its Restricted Subsidiaries, including through mergers,
consolidations or otherwise (including acquisitions of assets used in a
Permitted Business) and including any related financing transactions
(including any repayments of Indebtedness), during the four-quarter
reference period or subsequent to such reference period and on or prior
to the Calculation Date shall be given pro forma effect as if they had
occurred on the first day of the four-quarter reference period,
including any Consolidated Cash Flow (including interest income
reasonably anticipated by such Person to be received from cash or Cash
Equivalents held by such Person or any of its Restricted Subsidiaries)
and any pro forma expense and cost reductions that have occurred or are
reasonably expected to occur within the twelve month period following
the transaction, in the reasonable judgment of the chief financial
officer or chief accounting officer of the Company (regardless of
whether those cost savings or operating improvements could then be
reflected in pro forma financial statements in accordance with
Regulation S-X promulgated under the Securities Act or any other
regulation or policy of the Commission related thereto) or any other
regulation or policy of the Commission related thereto); provided that
such adjustments are set forth in an Officer's Certificate signed by
the Company's chief financial officer which states (i) the amount of
such adjustment or adjustments, (ii) that such adjustment or
adjustments are based on the reasonable good faith belief of the
Company at the time of such execution and (iii) that any related
incurrence of Indebtedness is permitted pursuant to this Indenture;
(2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses disposed of prior to the Calculation Date, shall be
excluded; and
(3) the Fixed Charges attributable to discontinued operations,
as determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, shall be excluded, but only
to the extent that the obligations giving rise to such Fixed Charges
shall not be obligations of the specified Person or any of its
Restricted Subsidiaries following the Calculation Date.
"Fixed Charges" means, with respect to any specified Person
for any period, the sum, without duplication, of:
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(1) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued
(including, without limitation, amortization of debt issuance costs and
original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component
of all payments associated with Capital Lease Obligations, imputed
interest with respect to Attributable Debt, commissions, discounts and
other fees and charges incurred in respect of letter of credit or
bankers' acceptance financings, and net of the effect of all payments
made or received (if any) pursuant to Hedging Obligations); plus
(2) the consolidated interest of such Person and its
Restricted Subsidiaries that was capitalized during such period; plus
(3) any interest expense on Indebtedness of another Person
that is guaranteed by such Person or one of its Restricted Subsidiaries
or secured by a Lien on assets of such Person or one of its Restricted
Subsidiaries (whether or not such guarantee or Lien is called upon);
plus
(4) the product of (a) all dividends paid (whether or not in
cash) on any series of preferred stock, other than dividends on Equity
Interests payable solely in Equity Interests of the Company (other than
Disqualified Stock) or to the Company or a Restricted Subsidiary of the
Company, times (b) a fraction, the numerator of which is one and the
denominator of which is one minus the then current combined federal,
state and local statutory tax rate of such Person, expressed as a
decimal, in each case, on a consolidated basis and in accordance with
GAAP.
"Foreign Subsidiary" means any Restricted Subsidiary that is
not a Domestic Subsidiary.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect from time to time.
"Global Note Legend" means the legend set forth in Section
2.01(d)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"Global Notes" means one or more global notes deposited with
or on behalf of, and registered in the name of, the Depositary or its nominee
and issued in accordance with Sections 2.01 and 2.07 hereof.
"Government Securities" means securities that are (i) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (ii) 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 issuer 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
Governmental 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 U.S. Government Obligation evidenced by such depository receipt.
-10-
"Guarantor" means any Person that guarantees the Notes;
provided that upon the release or discharge of such Person from its Subsidiary
Guarantee in accordance with the provisions of this Indenture, such Person shall
cease to be a Guarantor.
"Hedging Obligations" means, with respect to any specified
Person, the obligations of such Person incurred in the normal course of business
and not for speculative purposes under:
(1) interest rate swap agreements (whether from fixed to
floating or from floating to fixed), interest rate cap agreements and
interest rate collar agreements;
(2) foreign exchange contracts and currency protection
agreements entered into with one or more financial institutions and
designed to protect the person or entity entering into the agreement
against fluctuations in currency exchange rates with respect to
Indebtedness incurred;
(3) any commodity futures contract, commodity option or other
similar agreement or arrangement designed to protect against
fluctuations in the price of commodities used by that entity at the
time; and
(4) other agreements or arrangements designed to protect such
person against fluctuations in interest rates or currency exchange
rates.
"Holder" means any Person (which may include the Depositary or
its nominee) in whose name the Notes are registered.
"IAI Global Note" means a 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 Depositary or
its nominee that shall be issued in a denomination equal to the outstanding
principal amount at maturity of the Notes sold to Institutional Accredited
Investors.
"Indebtedness" means (without duplication), with respect to
any specified Person, any indebtedness of such Person, whether or not
contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in
respect thereof);
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations;
(5) representing the balance deferred and unpaid of the
purchase price of any property, except any such balance that
constitutes an accrued expense or trade payable;
(6) all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock or,
with respect to any Subsidiary, any preferred stock (but excluding, in
each case, any accrued dividends); or
(7) representing any Hedging Obligations,
-11-
if and to the extent any of the foregoing indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance sheet
of the specified Person prepared in accordance with GAAP.
In addition, the term "Indebtedness" includes all Indebtedness
of others secured by a
Lien on any asset of the specified Person (whether or not such Indebtedness is
assumed by the specified Person) and, to the extent not otherwise included, the
guarantee by the specified Person of any indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date
shall be:
(1) the accreted value of the Indebtedness, in the case of any
Indebtedness issued with original issue discount;
(2) in the case of any Disqualified Stock or preferred stock,
the repurchase price calculated in accordance with the terms of such
Disqualified Stock or preferred stock as if such Disqualified Stock or
preferred stock were repurchased on the date on which Indebtedness is
required to be determined pursuant to this Indenture; provided that if
such Disqualified Stock or preferred stock is not then permitted to be
repurchased, the book value of Disqualified Stock or preferred stock;
(3) in the case Indebtedness of others secured by a Lien on
any asset of the specified Person, the lesser of (A) the fair market
value of such asset on the date on which Indebtedness is required to be
determined pursuant to this Indenture and (B) the amount of the
Indebtedness so secured;
(4) in the case of the guarantee by the specified Person of
any Indebtedness of any other Person, the maximum liability to which
the specified Person may be subject upon the occurrence of the
contingency giving rise to the obligation;
(5) in the case of any Hedging Obligations, the net amount
payable if such Hedging Obligations were terminated at that time due to
default by such Person (after giving effect to any contractually
permitted set-off); and
(6) the principal amount of the Indebtedness, together with
any interest on the Indebtedness that is more than 30 days past due, in
the case of any other Indebtedness.
"Indenture" means this Indenture, as amended or supplemented
from time to time, and provisions of the TIA that are deemed by the TIA to be a
part hereof.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Initial Notes" means the $315,000,000 aggregate principal
amount of 7-3/4% Senior Subordinated Notes due 2014 issued by the Company on the
Issue Date.
"Initial Purchasers" means (i) with respect to the Initial
Notes issued on the Issue Date, Xxxxxx Brothers Inc., Xxxxxxx, Sachs & Co.,
Citigroup Global Markets Inc. and X.X. Xxxxxx Securities Inc. and (2) with
respect to each issuance of Additional Notes, the Persons purchasing such
Additional Notes under the related purchase agreement.
-12-
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act, who are not also QIBs.
"Investments" means, with respect to any Person, all direct or
indirect investments by such Person in other Persons (including Affiliates) in
the forms of loans (including guarantees or other obligations), advances or
capital contributions (excluding commission, travel and similar advances to
officers and employees made in the ordinary course of business), purchases or
other acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. If the Company
or any Restricted Subsidiary of the Company sells or otherwise disposes of any
Equity Interests of any direct or indirect Restricted Subsidiary of the Company
such that, after giving effect to any such sale or disposition, such Person is
no longer a Subsidiary of the Company, the Company shall be deemed to have made
an Investment on the date of any such sale or disposition in an amount equal to
the fair market value of the Equity Interests of such Subsidiary not sold or
disposed of in an amount determined as provided in the final paragraph of
Section 4.07. The acquisition by the Company or any Subsidiary of the Company of
a Person that holds an Investment in a third Person shall be deemed to be an
Investment made by the Company or such Subsidiary in such third Person in an
amount equal to the fair market value of the Investment held by the acquired
Person in such third Person on the date of any such acquisition in an amount
determined as provided in the final paragraph of Section 4.07.
"Issue Date" means the date on which the Notes are originally
issued under this Indenture.
"Legal Holiday" means a Saturday, Sunday or other day on which
banking institutions in New York, New York are authorized or required by law to
close. If a payment date is a Legal Holiday at a place of payment, payment may
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue on such payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Notes for use by such
Holders in connection with the Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law, including any conditional sale or other title retention agreement, any
lease in the nature thereof, and any agreement to give a security interest under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"Merger" shall have the meaning specified in the Offering
Memorandum.
"Net Income" means, with respect to any specified Person, the
net income (loss) of such Person, determined in accordance with GAAP and before
any reduction in respect of preferred stock dividends, excluding, however:
(1) any gain or loss, together with any related provision for
taxes on such gain or loss, realized in connection with (a) any Asset
Sale (including, without limitation, dispositions pursuant to sale and
leaseback transactions) or (b) the disposition of any securities by
such Person or any of its Restricted Subsidiaries or the extinguishment
of any Indebtedness of such Person or any of its Restricted
Subsidiaries; and
(2) any extraordinary or nonrecurring gain or loss, together
with any related provision for taxes on such extraordinary or
nonrecurring gain or loss.
-13-
"Net Proceeds" means the aggregate cash proceeds received by
the Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
the direct costs relating to such Asset Sale, including, without limitation,
legal, accounting and investment banking fees, and sales commissions, and any
relocation expenses incurred as a result of the Asset Sale, taxes paid or
payable as a result of the Asset Sale (as reasonably estimated by the Company),
in each case, after taking into account any available tax credits or deductions
and any tax sharing arrangements, amounts required to be applied to the
repayment of Indebtedness, secured by a Lien on the asset or assets that were
the subject of such Asset Sale, and any reserve for adjustment in respect of the
sale price of such asset or assets established in accordance with GAAP.
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither the Company nor any of its Restricted
Subsidiaries (a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute
Indebtedness), (b) is directly or indirectly liable as a guarantor or
otherwise, or (c) is the lender;
(2) no default with respect to which (including any rights
that the holders of the Indebtedness may have to take enforcement
action against an Unrestricted Subsidiary) would permit upon notice,
lapse of time or both any holder of any other Indebtedness (other than
the Notes) of the Company or any of its Restricted Subsidiaries to
declare a default on such other Indebtedness or cause the payment of
the Indebtedness to be accelerated or payable prior to its Stated
Maturity; and
(3) as to which the lenders have been notified in writing that
they shall not have any recourse to the stock or assets of the Company
or any of its Restricted Subsidiaries.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Custodian" means U.S. Bank National Association, as
custodian for the Depositary with respect to the Notes in global form, or any
successor entity thereto.
"Notes" means the Initial Notes, the Exchange Notes and any
Additional Notes issued under this Indenture.
"Obligations" means any principal, premium, if any, interest
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization, whether or not a claim for post-filing
interest is allowed in such proceeding), penalties, fees, charges, expenses,
indemnifications, reimbursement obligations, damages, guarantees and other
liabilities or amounts payable under the documentation governing any
Indebtedness or in respect thereto.
"Offering Memorandum" means the offering memorandum of the
Company, dated November 5, 2004, in connection with the offering of the Initial
Notes.
"Officer" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, the Controller, the
Secretary or any Vice President of such Person.
"Officers' Certificate" means a certificate signed by two
Officers or by one Officer and any Assistant Treasurer or Assistant Secretary of
the Company, which complies with the provisions of Section 13.05 hereof.
-14-
"144A Global Note" means one or more global notes in the form
of Exhibit A hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that shall represent the aggregate principal amount of
the Notes sold in reliance on Rule 144A.
"Opinion of Counsel" means an opinion from legal counsel, who
is reasonably acceptable to the Trustee, which meets the requirements of Section
13.04 hereof. The counsel may be an employee of or counsel to the Company or any
Subsidiary.
"Participant" means, with respect to the Depositary, Euroclear
or Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to The Depository Trust Company,
shall include Euroclear and Clearstream).
"Participating Broker-Dealer" has the meaning set forth in the
Registration Rights Agreement.
"Permitted Business" means the lines of business conducted by
the Company and its Restricted Subsidiaries on the date of this Indenture and
any business incidental or reasonably related thereto or which is a reasonable
extension thereof as determined in good faith by the Board of Directors.
"Permitted Holder" means:
(1) each of Aurora Industrial Holdings LLC, Aurora Equity
Partners II L.P., Aurora Overseas Equity Partners II, L.P., Aurora
Equity Partners III L.P. and Aurora Overseas Equity Partners III, L.P.
(the "Limited Partnerships");
(2) Aurora Capital Partners II L.P., Aurora Overseas Capital
Partners II, L.P., Aurora Capital Partners III L.P. and Aurora Overseas
Capital Partners III, L.P. (the "General Partners");
(3) Aurora Advisors II LLC, Aurora Advisors III LLC, Aurora
Overseas Advisors II, LDC and Aurora Overseas Advisors III, LDC (the
"Ultimate General Partners");
(4) any limited partners of the Limited Partnerships or any
limited partners of the General Partners, provided that such limited
partner gives a proxy to, or otherwise agrees that it will vote in a
manner consistent with, any of the Limited Partnerships or the General
Partners;
(5) any managing director, consultant or employee of Aurora
Management Partners LLC, provided that such managing director,
consultant or employee gives a proxy to, or otherwise agrees that he or
she will vote in a manner consistent with, the Limited Partnerships or
the General Partners;
(6) any member of the Advisory Board of Aurora Management
Partners LLC, provided that such member gives a proxy to, or otherwise
agrees that he or she will vote in a manner consistent with, the
Limited Partnerships or the General Partners;
(7) any Affiliate of Aurora Management Partners LLC, provided
that such Affiliate gives a proxy to, or otherwise agrees that it will
vote in a manner consistent with, the Limited Partnerships or the
General Partners; or
(8) any investment fund or other entity controlled by or under
common control with, any one or more of the Ultimate General Partners
or Aurora Management Partners LLC or the
-15-
principals that control any one or more of the Ultimate General
Partners or Aurora Management Partners LLC.
"Permitted Investments" means:
(1) any Investment in the Company or in a Restricted
Subsidiary of the Company;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Subsidiary of the
Company in a Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of
the Company; or
(b) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the
Company or a Restricted Subsidiary of the Company;
(4) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with the covenant contained in the Section 4.10 or any
non-cash consideration received in connection with a disposition of
assets excluded from the definition of "Asset Sales;"
(5) workers' compensation, utility, lease and similar deposits
and prepaid expenses in the ordinary course of business and
endorsements of negotiable instruments and documents in the ordinary
course of business;
(6) loans or advances to employees (or guarantees of third
party loans to employees) made in the ordinary course of business of
the Company or such Restricted Subsidiary in aggregate amount not to
exceed $2.0 million at any one time outstanding;
(7) any Investments in any Person solely in exchange for the
issuance of Equity Interests (other than Disqualified Stock) of the
Company;
(8) any Investments received in compromise of obligations of
trade creditors or customers that were incurred in the ordinary course
of business, including pursuant to any plan of reorganization or
similar arrangement upon the bankruptcy or insolvency of any trade
creditor or customer;
(9) Hedging Obligations;
(10) advances or extensions of credit on terms customary in
the industry in the form of accounts or other receivables incurred, and
loans and advances made in settlement of such accounts receivable, all
in the ordinary course of business;
(11) Investments existing on the date of this Indenture;
(12) guarantees in accordance with the covenant set forth
under Section 4.09;
(13) advances, loans or extensions of credit to suppliers and
vendors in the ordinary course of business;
-16-
(14) Investments by the Company or any Restricted Subsidiary
in joint ventures operating primarily in a Permitted Business in an
aggregate amount at any one time outstanding not to exceed $20.0
million;
(15) reclassification of any Investment initially made in the
form of equity as a loan or advance, and reclassification of any
Investment initially made in the form of a loan or advance as equity;
provided in each case that the amount of such Investment is not
increased thereby; and
(16) other Investments in any Person having an aggregate fair
market value (measured on the date each such Investment was made and
without giving effect to subsequent changes in value), when taken
together with all other Investments made pursuant to this clause (16)
that are at the time outstanding not to exceed $10.0 million.
"Permitted Junior Securities" means:
(1) Equity Interests in the Company; or
(2) debt securities that are subordinated in right of payment
to all Senior Debt that may at the time be outstanding, to
substantially the same extent as, or to a greater extent than, the
Notes and the Subsidiary Guarantees are subordinated to Senior Debt
pursuant to this Indenture, and such securities shall not be entitled
to the benefits of covenants or defaults materially more beneficial to
the holders of such securities than those in effect with respect to the
Notes on the date of this Indenture.
"Permitted Liens" means:
(1) Liens of the Company and any Guarantor securing Senior
Debt that was permitted by the terms of this Indenture to be incurred;
(2) Liens in favor of the Company or any Guarantor;
(3) Liens on property of a Person existing at the time such
Person is merged with or into or consolidated with the Company or any
Restricted Subsidiary of the Company or becomes a Restricted Subsidiary
of the Company or renewals or replacement of such Liens in connection
with the incurrence of Permitted Refinancing Indebtedness in respect of
Indebtedness secured by such Liens; provided that such Liens were in
existence prior to the contemplation of such merger or consolidation
and do not extend to any assets other than those of the Person merged
into or consolidated with the Company or the Restricted Subsidiary;
(4) Liens on property existing at the time of acquisition of
the property by the Company or any Restricted Subsidiary of the Company
or renewals or replacement of such Liens in connection with the
incurrence of Permitted Refinancing Indebtedness in respect of
Indebtedness secured by such Liens; provided that such Liens were in
existence prior to the contemplation of such acquisition;
(5) Liens existing on the date of this Indenture and any
extensions or renewals thereof, provided that such Liens do not extend
to or cover any other property or assets of the Company or any
Restricted Subsidiary;
(6) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by clause (4) of the second paragraph of Section
4.09 covering only the assets acquired with such
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Indebtedness or permitted by clause (5) of such paragraph, to the
extent such Liens secure Permitted Refinancing Indebtedness initially
incurred under clause (4);
(7) statutory Liens or landlords and carriers',
warehouseman's, mechanics', suppliers', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business;
(8) Liens for taxes, assessments, government charges or claims
which are not yet delinquent or are being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted
and if a reserve or other appropriate provision, if any, as shall be
required in conformity with GAAP shall have been made therefor;
(9) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security;
(10) Liens created or deposits made to secure the performance
of tenders, bids, leases, statutory obligations, surety and appeal
bonds, government contracts, performance and return-of-money bonds and
other obligations of a like nature incurred in the ordinary course of
business (exclusive of obligations for the payment of borrowed money);
(11) easements, rights-of-way, restrictions and other similar
charges or encumbrances not interfering in any material respect with
the business of the Company incurred in the ordinary course of
business;
(12) judgment liens in respect of judgments that do not
constitute an Event of Default so long as such Liens are adequately
bonded and any appropriate legal proceedings that may have been duly
initiated for the review of such judgment have not been fully
terminated or the period within which such proceedings may be initiated
has not expired;
(13) any other Liens imposed by operation of law which do not
materially affect the Company's ability to perform its obligations
under the Notes and this Indenture;
(14) rights of banks to set off deposits against debts owed to
said bank;
(15) Liens upon specific items of inventory or other goods and
proceeds of the Company or its Subsidiaries securing the Company's or
any Restricted Subsidiary's obligations in respect of bankers'
acceptances issued or created for the account of any such Person to
facilitate the purchase, shipment or storage of such inventory or other
goods;
(16) Liens securing reimbursement obligations with respect to
letters of credit which encumber documents and other property relating
to such letters of credit and the products and proceeds thereof;
(17) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection
with the importation of goods;
(18) Liens encumbering property or assets under construction
arising from progress or partial payments by a customer of the Company
or one of its Subsidiaries relating to such property or assets;
(19) Liens pursuant to master netting agreements entered into
in the ordinary course of business in connection with Hedging
Obligations;
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(20) Liens on assets that are the subject of a sale and
leaseback transaction permitted hereby;
(21) Liens on the property or assets of the Company or its
Restricted Subsidiaries in favor of the PBGC in respect of unfunded
pension obligations, which liens are junior to the liens permitted
under any Credit Facility;
(22) Liens incurred in the ordinary course of business of the
Company or any Restricted Subsidiary of the Company with respect to
obligations that do not exceed $5.0 million at any one time
outstanding;
(23) Liens securing the obligations under the Escrow
Agreement.
"Permitted Refinancing Indebtedness" means any Indebtedness of
the Company or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that:
(1) the principal amount (or accreted value, if applicable) of
such Permitted Refinancing Indebtedness does not exceed the principal
amount (or accreted value, if applicable) of the Indebtedness extended,
refinanced, renewed, replaced, defeased or refunded (plus all accrued
interest on the Indebtedness and the amount of all expenses and
premiums incurred in connection with the extension, refinancing,
renewal, replacement, defeasance or refunding);
(2) such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to
the Notes, such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and is subordinated in
right of payment to the Notes on terms at least as favorable to the
Holders of the Notes as those contained in the documentation governing
the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; and
(4) such Indebtedness is incurred either by the Company or by
the Restricted Subsidiary that is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or other entity.
"Program Investments" means, for any period, the amount of
investments made by the Company and its Restricted Subsidiaries during such
period consisting of the sale of original wheel and brake assemblies to
customers below cost in accordance with industry practice in the commercial,
general aviation and military industries.
"Predecessor Note" of any particular Note means every previous
Note evidencing all or a portion of the same Indebtedness as that evidenced by
such particular Note; and any Note authenticated
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and delivered under Section 2.08 in lieu of a mutilated, lost, destroyed or
stolen Note shall be deemed to evidence the same Indebtedness as the mutilated,
lost, destroyed or stolen Note.
"Private Placement Legend" means the legend set forth in
Section 2.01(d)(i)(A) 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.
"Qualified Proceeds" any of the following or any combination
of the following: (i) cash, (ii) Cash Equivalents, (iii) assets that are used or
useful in a Permitted Business (excluding Permitted Investments made in Persons
other than Restricted Subsidiaries pursuant to clause (7) of the definition of
"Permitted Investments") by the Company or any Restricted Subsidiary of the
Company and (iv) the Capital Stock of any Person engaged in a Permitted Business
that becomes a Restricted Subsidiary of the Company as a result of the
acquisition of such Capital Stock by the Company or any Restricted Subsidiary of
the Company.
"Registration Rights Agreement" means (a) with respect to the
Initial Notes issued on the Issue Date, the Registration Rights Agreement dated
as of the date hereof among the Company and the Initial Purchasers, as
supplemented by any joinder agreement and (b) with respect to each issuance of
Additional Notes issued in a transaction exempt from the registration
requirements of the Securities Act, the registration rights agreement, if any,
among the Company, the Guarantors and the Persons purchasing such Additional
Notes under the related purchase agreement.
"Registration Statement" means any registration statement
filed under the Securities Act by the Company pursuant to the provisions of the
Registration Rights Agreement relating to (a) an offering of Exchange Notes
pursuant to an Exchange Offer or (b) the registration for resale of Notes issued
in a transaction exempt from the registration requirements of the Securities Act
pursuant to the Shelf Registration Statement.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Note" means the Regulation S Temporary
Global Note or the Regulation S Permanent Global Note, as the case may be.
"Regulation S Permanent Global Note" means a permanent global
note bearing the Global Note Legend and the Private Placement Legend and
deposited with, or on behalf of, and registered in the name of, the Depositary
or its nominee, that shall equal the outstanding principal amount at maturity of
the Regulation S Temporary Global Note upon expiration of the Distribution
Compliance Period.
"Regulation S Temporary Global Note" means one or more global
notes bearing the Global Note Legend, the Temporary Global Note Legend and the
Private Placement Legend and deposited with, or on behalf of, and registered in
the name of, the Depositary or its nominee that shall represent the aggregate
principal amount at maturity of the Notes sold in reliance on Regulation S.
"Representative" means, for any Senior Debt, the trustee,
agent or representative with respect to such Senior Debt.
"Responsible Officer" means when used with respect to the
Trustee, an officer within the Corporate Trust Division of the Trustee (or any
successor unit, department or division of the Trustee) located at the Corporate
Trust Office of the Trustee, who has direct responsibility for the
administration
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of this Indenture and, for the purposes of Section 7.01(c)(ii) and the second
sentence of Section 7.05 shall also include any officer of the Trustee to whom
any corporate trust matter is referred because of such person's knowledge of and
familiarity with the particular subject.
"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 Note" means a Restricted Definitive Note or a
Restricted Global Note, as the case may be.
"Restricted Subsidiary" of a Person means any Subsidiary of
the referent Person that is not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities
Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Rule 144A Global Note" means one or more Restricted Global
Notes that shall represent the aggregate principal amount of Notes sold in
reliance on Rule 144A.
"Rule 903" means Rule 903 promulgated under the Securities
Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" means:
(1) all Indebtedness and other monetary obligations (whether
now existing or hereafter incurred) of the Company and any Guarantor
on, under or in respect of, the Credit Agreement and including all
fees, expenses (including reasonable fees and expenses of counsel),
claims, charges, indemnity obligations and interest accruing on or
subsequent to the filing of a petition initiating any proceeding in
bankruptcy, insolvency or like proceeding whether or not such interest
is an allowed claim in such proceeding;
(2) all other Indebtedness of the Company or any Guarantor
(other than the Notes and the Subsidiary Guarantees), whether presently
outstanding or hereafter created, incurred or assumed, unless such
Indebtedness, by the terms of the agreement or instrument creating or
evidencing such Indebtedness expressly provides that it is subordinate
in right of payment to or pari passu in right of payment with the Notes
or the Subsidiary Guarantees, as applicable; and
(3) any Hedging Obligations.
Notwithstanding the foregoing, the term "Senior Debt" shall
not include:
(1) any Indebtedness of the Company or any Guarantor which
when incurred and without respect to any election under Section 1111(b)
of the Bankruptcy Code, was without recourse to the Company or any
Guarantor;
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(2) any Indebtedness of the Company to any of its Subsidiaries
or Affiliates;
(3) any Indebtedness of the Company or any Guarantor not
otherwise permitted by the covenants contained in Section 4.09 and
Section 4.19;
(4) Indebtedness to any employee of the Company;
(5) any liability for taxes; and
(6) trade payables.
"Shelf Registration Statement" has the meaning set forth for
such term in the Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation
is in effect on the date hereof.
"Stated Maturity" means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on which the
payment of interest or principal was scheduled to be paid in the documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any specified Person:
(1) any corporation, association or other business 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 of the
corporation, association or other business entity is at the time owned
or controlled, directly or indirectly, by that Person or one or more of
the other Subsidiaries of that Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of
such Person or (b) the only general partners of which are that Person
or one or more Subsidiaries of that Person (or any combination
thereof).
"Subsidiary Guarantee" means any Guarantee by a Guarantor of
the Company's payment Obligations under this Indenture and on the Notes,
executed pursuant to the provisions of this Indenture.
"Tax Benefit Note" means the tax benefit note to be issued by
K&F Parent, Inc. to the existing stockholders and optionholders of the Company
prior to the Acquisition for estimated tax benefits to be received by the
Company due to the payment of fees and premiums in connection with the Tender
Offers.
"Tender Offers" means the tender offers and consent
solicitations initiated by K&F Industries, Inc. on October 20, 2004 for all of
K&F Industries, Inc.'s outstanding 91/4% Senior Subordinated Notes due 2007 and
95/8% Senior Subordinated Notes due 2010.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb), as in effect on the date on which this Indenture is
qualified under the TIA, provided that in the event the Trust Indenture Act of
1939 is amended after such date, "TIA" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
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"Transactions" shall have the meaning specified in the
Offering Memorandum.
"Trustee" means the party named as such above until a
successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means the successor serving hereunder.
"Unrestricted Definitive Note" means a Definitive Note that
does not and is not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a Global Note that does not
and is not required to bear the Private Placement Legend.
"Unrestricted Note" means an Unrestricted Definitive Note or
an Unrestricted Global Note, as the case may be.
"Unrestricted Subsidiary" means any Subsidiary of the Company
that is designated by the Board of Directors as an Unrestricted Subsidiary
pursuant to a Board Resolution, but only to the extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the
Company unless the terms of any such agreement, contract, arrangement
or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time
from Persons who are not Affiliates of the Company;
(3) is a Person with respect to which neither the Company nor
any of its Restricted Subsidiaries has any direct or indirect
obligation (a) to subscribe for additional Equity Interests or (b) to
maintain or preserve such Person's financial condition or to cause such
Person to achieve any specified levels of operating results; and
(4) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of the Company or any of
its Restricted Subsidiaries.
Any designation of a Subsidiary of the Company as an
Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the
Trustee a certified copy of the Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the preceding conditions and was permitted by Section 4.07. If, at
any time, any Unrestricted Subsidiary would fail to meet the preceding
requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of
such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09, the Company shall be in default of
such covenant. The Board of Directors of the Company may at any time designate
any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such
designation shall be deemed to be an incurrence of Indebtedness by a Restricted
Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if (1) such Indebtedness
is permitted under Section 4.09, calculated on a pro forma basis as if such
designation had occurred at the beginning of the four-quarter reference period;
and (2) no Default or Event of Default would be in existence following such
designation.
"U.S. Person" means a U.S. person as defined in Rule 902(k)
under the Securities Act.
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"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 at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund, serial
maturity or other required payments of principal, including payment at
final maturity, in respect of the Indebtedness, by (b) the number of
years (calculated to the nearest one-twelfth) that shall elapse between
such date and the making of such payment; by
(2) the then outstanding principal amount of such
Indebtedness.
SECTION 1.02. OTHER DEFINITIONS
Term Defined in
Section
"Affiliate Transaction"............................................................................. 4.11
"Asset Sale Offer".................................................................................. 4.10
"Authenticating Agent".............................................................................. 2.03
"Authentication Order".............................................................................. 2.03
"Change of Control Offer"........................................................................... 4.15
"Change of Control Payment"......................................................................... 4.15
"Change of Control Payment Date".................................................................... 4.15
"Covenant Defeasance"............................................................................... 8.03
"Custodian"......................................................................................... 6.01
"DTC"............................................................................................... 2.01
"Event of Default".................................................................................. 6.01
"Excess Proceeds"................................................................................... 4.10
"incur"............................................................................................. 4.09
"Legal Defeasance".................................................................................. 8.02
"Maximum Amount".................................................................................... 4.09
"New York Corporate Trust Office"................................................................... 4.02
"Offer Amount"...................................................................................... 4.10
"Paying Agent"...................................................................................... 2.04
"Payment Blockage Notice"........................................................................... 12.03
"Payment Default"................................................................................... 6.01
"Purchase Date"..................................................................................... 4.10
"Registrar"......................................................................................... 2.04
"Relevant Fixed Charge Coverage Ratio".............................................................. 4.09
"Restricted Payments"............................................................................... 4.07
"Special Redemption................................................................................. 3.08
"Special Redemption Date"........................................................................... 3.08
"Special Redemption Price".......................................................................... 3.08
SECTION 1.03 INCORPORATION BY REFERENCE OF TIA
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture. All
terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by Commission rule under the TIA have
the meanings so assigned to them.
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SECTION 1.04 RULES OF CONSTRUCTION
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and in
the plural include the singular;
(v) provisions apply to successive events and
transactions;
(vi) "herein," "hereof," "hereunder" and other words
of similar import refer to this Indenture (as amended or supplemented
from time to time) and not to any particular Article, Section or other
subdivision; and
(vii) references to sections of or rules under the
Securities Act shall be deemed to include substitute, replacement of
successor sections or rules adopted by the Commission from time to
time.
ARTICLE 2
THE NOTES
SECTION 2.01 FORM AND DATING
(a) General. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto; provided
that only Global Notes shall have the "Schedule of Exchanges of Interests in the
Global Note" attached thereto. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage. The Company, the
Guarantors and the Trustee shall approve the forms of the Notes and any
notation, legend or endorsement on them.
Each Note shall be dated the date of its authentication.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company, the Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
To the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be
controlling.
(b) Global Notes. Each Global Note shall be deposited with the
Note Custodian and registered in the name of the Depositary or the nominee of
the Depositary and shall provide that it shall represent the aggregate principal
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby shall be made by the Trustee, the Depositary or the Note
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.07 hereof. The Company
initially appoints The Depository Trust Company ("DTC") to act as
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Depositary with respect to the Global Notes. The Trustee shall act as Note
Custodian with respect to the Global Notes in accordance with its agreement with
DTC.
Notes initially offered and sold to QIBs in reliance on Rule
144A shall be issued in the form of one or more Rule 144A Global Notes.
Notes initially offered and sold outside the United States in
reliance on Regulation S shall be issued in the form of one or more Regulation S
Temporary Global Notes, which shall be deposited with the Note Custodian and
registered in the name of the Depositary or the nominee of the Depositary for
the accounts of designated agents holding on behalf of Euroclear or Clearstream.
The Distribution Compliance Period shall be terminated upon the receipt by the
Trustee of a written certificate from the Depositary, together with copies of
certificates from Euroclear and Clearstream certifying that they have received
certification of non-United States beneficial ownership of 100% of the aggregate
principal amount of the Regulation S Temporary Global Note (except to the extent
of any beneficial owners thereof who acquired an interest therein during the
Distribution Compliance Period pursuant to another exemption from registration
under the Securities Act and who took delivery of a beneficial ownership
interest in a 144A Global Note, all as contemplated by Section 2.07(b)(iii)
hereof). Following the termination of the Distribution Compliance Period,
beneficial interests in the Regulation S Temporary Global Note shall be
exchanged for an equal amount of beneficial interests in the Regulation S
Permanent Global Note pursuant to the Applicable Procedures. Simultaneously with
the authentication of the Regulation S Permanent Global Note, the Trustee shall
cancel the Regulation S Temporary Global Note.
(c) Definitive Notes. Notes initially offered and sold to
Accredited Investors shall be issued in the form of one or more AI Definitive
Notes.
(d) Legends. The following legends shall appear on the face of
all Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture:
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B)
below, each Global Note and each Definitive Note (and all
Notes issued in exchange therefor or substitution thereof)
shall bear the legend in substantially the following form:
"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
OTHER SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT. EACH PURCHASER OF THE SECURITY
EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER 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 BY ITS ACCEPTANCE HEREOF (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS NOT A U.S.
PERSON AND IS ACQUIRING ITS NOTE IN AN "OFFSHORE TRANSACTION"
PURSUANT TO RULE 904 OF REGULATION S UNDER THE SECURITIES ACT
OR (C) IT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(A)(1), (2), (3), (4), (5), (6) OR (7) UNDER
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THE SECURITIES ACT PURCHASING ITS NOTE FOR INVESTMENT PURPOSES
ONLY AND WITH NO PRESENT INTENTION TO RESELL THE NOTE, (2)
AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO
YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE
144(K) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION
THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF
(OR OF ANY PREDECESSOR OF THIS NOTE) OR THE LAST DAY ON WHICH
THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF
THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER
DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE
"RESALE RESTRICTION TERMINATION DATE"), OFFER, SELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE ISSUER, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C)FOR SO LONG AS THE
NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A INSIDE THE
UNITED STATES, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES
THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND; PROVIDED THAT THE ISSUER, THE TRUSTEE AND THE
REGISTRAR SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF
THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THE NOTE
IS COMPLETED AND DELIVERED BY THIS TRANSFEROR TO THE TRUSTEE.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT."
(B) Notwithstanding the foregoing, any
Global Note or Definitive Note issued in compliance with
subparagraphs (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii),
(e)(ii), (e)(iii) or (f) of Section 2.07 (and all Notes issued
in exchange therefor or substitution thereof), and any
Additional Notes issued pursuant to a registration statement
that has been declared effective under the Securities Act,
shall not bear the Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend
in substantially the following form:
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE
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DEPOSITARY, OR BY ANY SUCH NOMINEE OF THE DEPOSITARY, OR BY
THE DEPOSITARY OR NOMINEE OF A SUCCESSOR DEPOSITARY, OR ANY
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY. TRANSFERS OF THE GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF
CEDE & CO., OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE, AND TRANSFERS OF PORTIONS OF THE GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE."
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN."
(iii) Regulation S Temporary Global Note Legend. The
Regulation S Temporary Global Note shall bear a legend in substantially
the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL
NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE
FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS
DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS
OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON."
SECTION 2.02 DENOMINATIONS
The Notes shall be in minimum denominations of $2,000
aggregate principal amount and integral multiples of $1,000 in excess thereof.
SECTION 2.03 EXECUTION AND AUTHENTICATION
The aggregate principal amount of Notes that may be
authenticated and delivered under this Indenture is unlimited. The Trustee
shall, upon a written order of the Company signed by two Officers of the Company
or by an Officer and an Assistant Treasurer or an Assistant Secretary of the
Company (an "Authentication Order"), authenticate (i) on the Issue Date, the
Initial Notes in aggregate principal amount of $315.0 million, (ii) subject to
the provisions of Section 2.15, at any time and from time to time thereafter,
Additional Notes in an aggregate principal amount specified in such
authentication order and (iii) subject to the provisions of Section 2.07(f),
Exchange Notes issued in exchange for a like principal amount of Initial Notes
or Additional Notes tendered pursuant to an Exchange Offer. Such authentication
order shall specify (i) the amount of the Notes to be authenticated, (ii) the
date on which the Notes are to be authenticated, (iii) whether the Notes are to
be Initial Notes, Exchange Notes or Additional Notes and (iv) whether such Notes
shall bear the Global Note Legend, the Regulation S Temporary Global Note Legend
and/or the Private Placement Legend. Furthermore, Notes
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may be authenticated and delivered upon registration or transfer, or in lieu of,
other Notes pursuant to Section 2.07, 2.08, 2.11 or 9.05 or in connection with a
Change of Control Offer pursuant to Section 4.15.
An Officer of the Company shall sign the Notes for the Company
by manual or facsimile signature. If an Officer whose signature is on a Note no
longer holds that office at the time a Note is authenticated, the Note shall
nevertheless be valid.
A Note shall not be valid until an authorized signatory of the
Trustee manually authenticates the Note. The signature of the Trustee on a Note
shall be conclusive evidence that the Note has been duly and validly
authenticated and issued under this Indenture.
The Trustee may appoint an authenticating agent (the
"Authenticating Agent") acceptable to the Company to authenticate Notes. An
Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such Authenticating Agent. An Authenticating Agent has the
same rights as an Agent to deal with Holders or an Affiliate of the Company
SECTION 2.04 REGISTRAR AND PAYING AGENT
The Company shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Company shall cause each of the Registrar and the Paying Agent to maintain an
office or agency in the Borough of Manhattan, The City of New York. The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement
with any Registrar or Paying Agent not a party to this Indenture, which shall
incorporate the terms of the TIA. The agreement shall implement the provisions
of this Indenture that relate to such agent. The Company may change any Paying
Agent or Registrar without notice to any Holder. The Company shall notify the
Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar. The Company initially
appoints the Trustee to act as the Registrar and Paying Agent.
SECTION 2.05 PAYING AGENT TO HOLD MONEY IN TRUST
By no later than 11:00 a.m. (New York City time) on the date
on which any principal of, premium or Additional Interest, if any, or interest
on any Notes is due and payable, the Company shall deposit with the Paying Agent
a sum sufficient in immediately available funds to pay such amount when due. The
Company shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent shall hold in trust for the benefit of Holders or
the Trustee all money held by the Paying Agent for the payment of principal of,
premium or Additional Interest, if any, or interest on the Notes, and shall
notify the Trustee in writing of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee and to account
for any funds disbursed by such Paying Agent. Upon payment over to the Trustee,
the Paying Agent (if other than the Company or a Subsidiary) shall have no
further liability for the money. If the Company or a Subsidiary acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee shall serve as
Paying Agent for the Notes.
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SECTION 2.06 HOLDER LISTS
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA Section 312(a). If
the Trustee is not the Registrar, the Company shall furnish 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 and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.07 TRANSFER AND EXCHANGE
(a) Transfer and Exchange of Global Notes. A Global Note may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes
shall be exchanged by the Company for Definitive Notes if (i) the Company
delivers to the Trustee notice from the Depositary that it is unwilling or
unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 120 days after the date of
such notice from the Depositary, (ii) the Company in its sole discretion
determines that the Global Notes (in whole but not in part) should be exchanged
for Definitive Notes and delivers a written notice to such effect to the
Trustee; or (iii) there shall have occurred and be continuing a Default or Event
of Default with respect to the Notes; provided that in no event shall the
Regulation S Temporary Global Note be exchanged by the Company for Definitive
Notes prior to (x) the expiration of the Distribution Compliance Period and (y)
the receipt by the Registrar of any certificates required pursuant to Rule
903(c)(3)(ii)(B) under the Securities Act. Upon the occurrence of any of the
preceding events in (i), (ii) or (iii) above, Definitive Notes shall be issued
in such names as the Depositary shall instruct the Trustee. Global Notes also
may be exchanged or replaced, in whole or in part, as provided in Sections 2.08,
2.11 and 9.05 hereof. Every Note authenticated and delivered in exchange for, or
in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.07
or Section 2.08 or 2.11 or 9.05 hereof, shall be authenticated and delivered in
the form of, and shall be, a Global Note. A Global Note may not be exchanged for
another Note other than as provided in this Section 2.07(a); however, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.07(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the
Global Notes. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial interests
in the Restricted Global Notes shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. Transfers of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same
Global Note. Beneficial interests in any Restricted Global
Note may be transferred to Persons who take delivery thereof
in the form of a beneficial interest in the same Restricted
Global Note in accordance with the transfer restrictions set
forth in the Private Placement Legend and any Applicable
Procedures; provided, however, that prior to the expiration of
the Distribution Compliance Period, transfers of beneficial
interests in the Temporary Regulation S Global Note may not be
made to a U.S. Person or for the account or benefit of a U.S.
Person (other than an Initial Purchaser or a "distributor" (as
defined in Rule 902(d) of Regulation S)). Beneficial interests
in any Unrestricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest
in an
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Unrestricted Global Note. Except as may be required by
Applicable Procedures, no written orders or instructions shall
be required to be delivered to the Registrar to effect the
transfers described in this Section 2.07(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial
Interests in Global Notes. In connection with all transfers
and exchanges of beneficial interests that are not subject to
Section 2.07(b)(i) above, 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 Depositary in accordance with the Applicable
Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Note in an
amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the
Participant account to be credited with such increase or (B)
if permitted under Section 2.07(a) hereof, (1) a written order
from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures
directing the Depositary to cause to be issued a Definitive
Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding
the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in
(B)(1) above; provided that in no event shall Definitive Notes
be issued upon the transfer or exchange of beneficial
interests in the Regulation S Temporary Global Note prior to
(x) the expiration of the Distribution Compliance Period and
(y) the receipt by the Registrar of any certificates required
pursuant to Rule 903 under the Securities Act. Upon
consummation of an Exchange Offer by the Company in accordance
with Section 2.07(f) hereof, the requirements of this Section
2.07(b)(ii) shall be deemed to have been satisfied upon
receipt by the Registrar of the instructions contained in the
Letter of Transmittal delivered by the Holder of such
beneficial interests in the Restricted Global Notes. Upon
notification from the Registrar that 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 have been satisfied, the
Trustee shall adjust the principal amount of the relevant
Global Note(s) pursuant to Section 2.07(h) hereof.
(iii) Transfer of Beneficial Interests in a
Restricted Global Note 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
2.07(b)(ii) above and the Registrar and the Company receive
the following:
(A) if the transferee shall take delivery in
the form of a beneficial interest in the 144A Global
Note, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(B) if the transferee shall take delivery in
the form of a beneficial interest in the Regulation S
Temporary Global Note or 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; and
(C) if the transferee shall take delivery in
the form of a beneficial interest in the IAI Global
Note, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the
certifications and certificates and Opinion of
Counsel required by item (3) thereof, if applicable.
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(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 only
if the exchange or transfer complies with the requirements of
Section 2.07(b)(ii) above and:
(A) such exchange or transfer is effected
pursuant to an Exchange Offer in accordance with a
Registration Rights Agreement and the holder of the
beneficial interest to be transferred, in the case of
an exchange, or the transferee, in the case of a
transfer, makes any and all certifications in the
applicable Letter of Transmittal or is deemed to have
made such certifications if delivery is made through
the Applicable Procedures as may be required by the
Registration Rights Agreement;
(B) such transfer is effected pursuant to a
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) such transfer is effected by a
Participating Broker-Dealer pursuant to an Exchange
Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar and the Company receive
the following:
(1) if the holder of such beneficial
interest in a Restricted Global Note
proposes to exchange such beneficial
interest for a beneficial interest in an
Unrestricted Global Note, a certificate from
such holder in the form of Exhibit C hereto,
including the certifications in item (1)(a)
thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Note
proposes to transfer such beneficial
interest to a Person who shall take delivery
thereof in the form of a beneficial interest
in an Unrestricted Global Note, a
certificate from such holder in the form of
Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar or the Company so requests or 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 subparagraph (B)
or (D) above at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.03 hereof or in accordance with a previously delivered
Authentication Order, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to subparagraph (B) or (D)
above.
(v) Transfer or Exchange of Beneficial
Interests in Unrestricted Global Notes for Beneficial
Interests in Restricted Global Notes Prohibited. Beneficial
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interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in
the form of, beneficial interests in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests in Global
Notes for Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes
to Restricted Definitive Notes. Subject to Section 2.07(a)
hereof, if any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for
a Restricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of
a Restricted Definitive Note, then, upon receipt by the
Registrar and the Company 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 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
under the Securities Act, a certificate to the effect
set forth in 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
under the Securities Act, a certificate to the effect
set forth in 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 under the Securities Act, a
certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a)
thereof;
(E) if such beneficial interest is being
transferred to an Accredited Investor or an
Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the
Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to
the effect set forth in Exhibit B hereto, including
the certifications, certificates and Opinion of
Counsel required by item (3)(d) thereof, if
applicable;
(F) if such beneficial interest is being
transferred to the Company or any of its
Subsidiaries, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in
item (3)(b) thereof; or
(G) if such beneficial interest is being
transferred pursuant to an effective registration
statement under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including
the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to
Section 2.07(h) hereof, and the Company shall execute and upon
receipt of an Authentication Order in accordance with Section
2.03 hereof or in accordance with a previously delivered
Authentication Order, the Trustee shall authenticate and
deliver to the Person designated in the instructions a
Definitive
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Note in the appropriate principal amount. Any Restricted
Definitive Note issued in exchange for a beneficial interest
in a Restricted Global Note pursuant to this Section 2.07(c)
shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such
Restricted Definitive Notes to the Persons in whose names such
Notes are so registered. Any Restricted Definitive Note issued
in exchange for a beneficial interest in a Restricted Global
Note pursuant to this Section 2.07(c)(i) shall bear the
Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
(ii) Notwithstanding Sections 2.07(c)(i)(A) and (C)
hereof, a beneficial interest in the Regulation S Temporary
Global Note may not be exchanged for a Definitive Note or
transferred to a Person who takes delivery thereof in the form
of a Definitive Note prior to (x) the expiration of the
Distribution Compliance Period and (y) the receipt by the
Registrar of any certificates required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act, except in the case
of a transfer pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 903 or Rule
904.
(iii) Beneficial Interests in Restricted Global Notes
to Unrestricted Definitive Notes. Subject to Section 2.07(a)
hereof, a holder of a beneficial interest in a Restricted
Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial
interest to a Person who takes delivery thereof in the form of
an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected
pursuant to an Exchange Offer in accordance with the
Registration Rights Agreement and the holder of such
beneficial interest, in the case of an exchange, or
the transferee, in the case of a transfer, makes any
and all certifications in the applicable Letter of
Transmittal;
(B) such transfer is effected pursuant to a
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) such transfer is effected by a
Participating Broker-Dealer pursuant to an Exchange
Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar and the Company receive
the following:
(1) 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 in the
form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Note
proposes to transfer such beneficial
interest to a Person who shall take delivery
thereof in the form of an Unrestricted
Definitive Note, a certificate from such
holder in the form of Exhibit B hereto,
including the certifications in item (4)
thereof;
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and, in each such case set forth in this
subparagraph (D), if the Registrar or the Company 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
clauses of this Section 2.07(c)(iii), the Company shall
execute, and, upon receipt of an Authentication Order in
accordance with Section 2.03 hereof or in accordance with a
previously delivered Authentication Order, the Trustee shall
authenticate and deliver to the Person designated in the
instructions an Unrestricted Definitive Note in the
appropriate principal amount, and the Trustee shall cause the
aggregate principal amount at maturity of the applicable
Restricted Global Note to be reduced in a corresponding amount
pursuant to Section 2.07(h) hereof.
(iv) Beneficial Interests in Unrestricted Global
Notes to Unrestricted Definitive Notes. Subject to Section
2.07(a) hereof, if any holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial
interest for an Unrestricted Definitive Note or to transfer
such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note, then,
upon satisfaction of the applicable conditions set forth in
Section 2.07(b)(ii) hereof, the Trustee shall cause the
aggregate principal amount of the applicable Unrestricted
Global Note to be reduced accordingly pursuant to Section
2.07(h) hereof, and the Company shall execute and, upon
receipt of an Authentication Order in accordance with Section
2.03 hereof or in accordance with a previously delivered
Authentication Order, the Trustee shall authenticate and
deliver to the Person designated in the instructions an
Unrestricted Definitive Note in the appropriate principal
amount. Any Unrestricted Definitive Note issued in exchange
for a beneficial interest pursuant to this Section 2.07(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 the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such
Unrestricted Definitive Notes to the Persons in whose names
such Notes are so registered. Any Unrestricted Definitive Note
issued in exchange for a beneficial interest pursuant to this
Section 2.07(c)(iv) shall not bear the Private Placement
Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests in Global Notes.
(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 Notes to a Person who
takes delivery thereof in the form of a beneficial interest in
a Restricted Global Note, then, upon receipt by the Registrar
and the Company 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 in the form of Exhibit C
hereto, including the certifications in item (2)(b)
thereof;
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(B) if such Restricted Definitive Note is
being transferred to a QIB in accordance with Rule
144A, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in
item (1) thereof;
(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
under the Securities Act, a certificate to the effect
set forth in 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 to the effect
set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is
being transferred to an Institutional Accredited
Investor in reliance on an exemption from the
registration requirements of the Securities Act other
than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item
(3) thereof, if applicable;
(F) if such Restricted Definitive Note is
being transferred to either of the Company or any of
its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is
being transferred pursuant to an effective
registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(c)
thereof,
the Trustee shall cancel the Restricted Definitive Note and
increase or cause to be increased the aggregate principal
amount of the appropriate Restricted Global Note.
(ii) Restricted Definitive Notes to Beneficial
Interests in Unrestricted Global Notes. A Holder of a
Restricted Definitive Note may exchange such Note for a
beneficial interest in an Unrestricted Global Note or transfer
such Restricted Definitive Note to a Person who takes delivery
thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such exchange or transfer is effected
pursuant to an Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the
case of an exchange, or the transferee, in the case
of a transfer, makes any and all certifications in
the applicable Letter of Transmittal;
(B) such transfer is effected pursuant to a
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) such transfer is effected by a
Participating Broker-Dealer pursuant to an Exchange
Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar and the Company receives
the following:
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(1) if the Holder of such Restricted
Definitive Note proposes to exchange such
Note for a beneficial interest in an
Unrestricted Global Note, a certificate from
such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(c)
thereof; or
(2) if the Holder of such Restricted
Definitive Note proposes to transfer such
Note to a Person who shall take delivery
thereof in the form of a beneficial interest
in an Unrestricted Global Note, a
certificate from such Holder in the form of
Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this
subparagraph (D), if the Registrar and the Company
request 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 2.07(d)(ii), the Trustee shall
cancel such Restricted Definitive Note 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
Unrestricted Definitive Note 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 the
Unrestricted Global Note.
(iv) Transfer or Exchange of Unrestricted
Definitive Notes to Beneficial Interests in
Restricted Global Notes Prohibited. An Unrestricted
Definitive Note may not be exchanged for, or
transferred to Persons who take delivery thereof in
the form of, beneficial interests in a Restricted
Global Note.
(v) Issuance of Unrestricted Global Notes.
If any such exchange or transfer from a Definitive
Note to a beneficial interest in an Unrestricted
Global Note is effected pursuant to subparagraphs
(ii)(B), (ii)(D) or (iii) above at a time when an
Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.03
hereof or in accordance with a previously delivered
Authentication Order, 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 2.07(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 such Holder's attorney, duly authorized in writing. In addition, the
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requesting Holder shall provide any additional certifications, documents and
information, as applicable, required pursuant to the following provisions of
this Section 2.07(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 shall be made pursuant
to Rule 144A, then the transferor must deliver a
certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transfer shall 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; and
(C) if the transfer shall be made pursuant
to any other exemption from the registration
requirements of the Securities Act, then the
transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in
item (3)(c) thereof; and
(D) if the transfer shall be to an
Accredited Investor in reliance on an exemption from
the registration requirements of the Securities Act
other than those listed in subparagraphs (A) and (B)
above, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel
required by item (3)(d) thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted
Definitive Notes. Any Restricted Definitive Note may be
exchanged by the Holder thereof for an Unrestricted Definitive
Note or transferred to a Person or Persons who take delivery
thereof in the form of an Unrestricted Definitive Note only
if:
(A) such exchange or transfer is effected
pursuant to an Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the
case of an exchange, or the transferee, in the case
of a transfer, makes any and all certifications in
the applicable Letter of Transmittal;
(B) any such transfer is effected pursuant
to a Shelf Registration Statement in accordance with
the Registration Rights Agreement;
(C) any such transfer is effected by a
Participating Broker-Dealer pursuant to the Exchange
Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar and the Company receive
the following:
(1) if the Holder of such Restricted
Definitive Notes proposes to exchange such
Notes for an Unrestricted Definitive Note, a
certificate from such Holder in the form of
Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
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(2) if the Holder of such Restricted
Definitive Notes proposes to transfer such
Notes to a Person who shall take delivery
thereof in the form of an Unrestricted
Definitive Note, a certificate from such
Holder in the form of Exhibit B hereto,
including the certifications in item (4)
thereof;
and, in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company to the effect
that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on
transfer contained herein and in the Private
Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the clauses of Section
2.07(e)(ii), the Trustee shall cancel the prior Restricted Definitive Note and
the Company shall execute, and, upon receipt of an Authentication Order in
accordance with Section 2.03 hereof or in accordance with a previously delivered
Authentication Order, the Trustee shall authenticate and deliver to the Person
designated in the instructions an Unrestricted Definitive Note in the
appropriate principal amount.
(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) Exchange Offer. Upon the occurrence of an Exchange Offer
in accordance with a Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.03, the
Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount at maturity equal to the principal amount at maturity
of the beneficial interests in the applicable Restricted Global Notes tendered
for acceptance by Persons that make any and all certifications in the applicable
Letter of Transmittal or are deemed to have made such certifications if delivery
is made through the Applicable Procedures as may be required by such
Registration Rights Agreement and accepted for exchange in the Exchange Offer
and (ii) Unrestricted Definitive Notes in an aggregate principal amount at
maturity equal to the principal amount at maturity of the Restricted Definitive
Notes tendered for acceptance by Persons who made the foregoing certifications
and accepted for exchange in the Exchange Offer. Concurrently with the issuance
of such Notes, the Trustee shall cause the aggregate principal amount at
maturity of the applicable Restricted Global Notes to be reduced accordingly,
and the Company shall execute and the Trustee shall authenticate and deliver to
the Persons designated by the Holders of Restricted Definitive Notes so accepted
Unrestricted Definitive Notes in the appropriate principal amount.
(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 2.12 hereof. At any time prior to such cancellation, if
any beneficial interest in a Global Note is exchanged for or transferred to a
Person who shall take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the principal amount at maturity of
Notes represented by such Global Note shall be reduced accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such reduction; and if the
beneficial interest is being exchanged for or transferred to a Person who shall
take delivery thereof in the form of a beneficial interest in another Global
Note, such other Global Note shall
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be increased accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such
increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall authenticate
Global Notes and Definitive Notes upon the Company's order.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive
Note for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.11, 3.06, 4.10, 4.15 and
9.05 hereof).
(iii) The Registrar shall not be required to register
the transfer of or to exchange any Note selected for redemption in
whole or in part, except the unredeemed portion of any Note being
redeemed in part.
(iv) All Global Notes and Definitive Notes issued
upon any registration of transfer or exchange of Global Notes or
Definitive Notes shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Global Notes or Definitive Notes surrendered upon
such registration of transfer or exchange.
(v) The Registrar 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 or (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.
(vi) The Trustee, any Agent and the Company may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and
none of the Trustee, any Agent or the Company shall be affected by
notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.03
hereof.
(viii) All certifications, certificates and Opinions
of Counsel required to be submitted to the Registrar pursuant to this
Section 2.07 to effect a registration of transfer or exchange may be
submitted by facsimile.
(ix) The Trustee is hereby authorized and directed to
enter into a letter of representations with the Depositary in the form
provided by the Company and to act in accordance with such letter.
(x) Subject to compliance with any applicable
additional requirements contained in this Article, when a Note is
presented to the Registrar with a request to register a transfer
thereof or to exchange such Note for an equal principal amount of Notes
of other authorized denominations, the Registrar shall register the
transfer or make the exchange as requested; provided, however, that
every Note presented or surrendered for registration of transfer or
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exchange shall be duly endorsed or accompanied by an assignment form
and, if applicable, a transfer certificate, each in the form included
in Exhibit A attached hereto and in form satisfactory to the Registrar
and each duly executed by the Holder thereof or its attorney duly
authorized in writing. To permit registration of transfers and
exchanges, upon surrender of any Note for registration of transfer or
exchange at an office or agency maintained for such purpose pursuant to
Section 2.04, the Company shall execute, and the Trustee shall
authenticate, Notes of a like aggregate principal amount at maturity at
the Registrar's request.
(xi) Any Registrar appointed pursuant to Section 2.04
shall provide to the Trustee such information as the Trustee may
reasonably require in connection with the delivery by such Registrar of
Notes upon transfer or exchange of Notes.
(xii) 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 Participants or other beneficial owners of
interests in any Global Note) other than to require delivery of such
certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
(xiii) None of the Company, the Trustee or any Paying
Agent shall have any responsibility or liability for any aspect of the
records relating to, or payments made on account of or transfers of,
beneficial ownership interests in a Global Note or for maintaining,
supervising or reviewing any records relating to such beneficial
ownership interests.
(xiv) None of the Company, the Trustee or the
Registrar shall have any liability for any acts or omissions of the
Depositary, for any Depositary records of beneficial interests, for any
transaction between the Depositary or any Participant and/or beneficial
owners, for any transfers of beneficial interests in the Notes, or in
respect of any transfers effected by the Depositary or by any
Participant or any beneficial owner of any interest in any Notes held
through any such Participant.
SECTION 2.08 MUTILATED, DESTROYED, LOST OR STOLEN NOTES
If any mutilated Note is surrendered to the Trustee or the
Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee,
upon receipt of an Authentication Order or in accordance with a previously
delivered Authentication Order, shall authenticate a replacement Note if the
Trustee's requirements are met. If required by the Trustee or the Company, an
indemnity bond must be supplied by the Holder that is sufficient in the judgment
of the Trustee and the Company to protect the Company, the Trustee, any Agent
and any Authenticating Agent from any loss that any of them may suffer if a Note
is replaced. The Company and the Trustee may charge for their expenses in
replacing a Note.
Every replacement Note issued in accordance with this Section
2.07 is an additional obligation of the Company and any other obligor upon the
Notes and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
The Company and the Trustee may charge the Holder for their
expenses in replacing a Note. In the event any such mutilated, lost, destroyed
or wrongfully taken Note has become or is about to become due and payable, the
Company in its discretion may pay such Note instead of issuing a new Note in
replacement thereof.
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The provisions of this Section 2.08 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, lost, destroyed or wrongfully taken
Notes.
SECTION 2.09 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 as not outstanding. Except as set forth in Section 2.10 hereof, a
Note does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note.
If a Note is replaced pursuant to Section 2.08 hereof, it
ceases to be outstanding unless the Company and the Trustee receive proof
satisfactory to it that the replaced Note is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, by 11:00 a.m. New York City time, on a
redemption date or other maturity date money sufficient to pay all principal,
premium and Additional Interest, if any, and interest payable on that date with
respect to the Notes (or portions thereof) to be redeemed or maturing, as the
case may be, then on and after that date such Notes (or portions thereof) cease
to be outstanding and interest on them ceases to accrue.
SECTION 2.10 TREASURY NOTES
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company or by any Affiliate of the Company shall be deemed not to be
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes that a Responsible Officer of the Trustee actually knows are so owned
shall be so disregarded.
SECTION 2.11 TEMPORARY NOTES
In the event that Definitive Notes are to be issued under the
terms of this Indenture, until such Definitive Notes are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form, and shall carry all rights,
of Definitive Notes but may have variations that the Company considers
appropriate for temporary Notes. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate Definitive Notes. After the
preparation of Definitive Notes, the temporary Notes shall be exchangeable for
Definitive Notes upon surrender of the temporary Notes at any office or agency
maintained by the Company for that purpose and such exchange shall be without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes, the Company shall execute, and the Trustee shall authenticate
and make available for delivery in exchange therefor, one or more Definitive
Notes representing an equal principal amount of Notes. Until so exchanged, the
Holder of temporary Notes shall in all respects be entitled to the same benefits
under this Indenture as a Holder of Definitive Notes.
SECTION 2.12 CANCELLATION
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel and destroy all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation in
accordance with customary practices (subject to the record retention requirement
of the Exchange Act) and, upon request, deliver a
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certificate of such destruction to the Company unless the Company directs the
Trustee to deliver canceled Notes to the Company. The Company may not issue new
Notes to replace Notes that it has paid or that have been delivered to the
Trustee for cancellation.
SECTION 2.13 DEFAULTED INTEREST
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 4.01 hereof. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and
the date of the proposed payment. The Company 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. At least 15 days before the special record date, the
Company (or, upon the written request of the Company, the Trustee in the name
and at the expense of the Company) shall mail or cause to be mailed to Holders a
notice that states the special record date, the related payment date and the
amount of such interest to be paid.
SECTION 2.14 COMPUTATION OF INTEREST
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
SECTION 2.15 ISSUANCE OF ADDITIONAL NOTES
The Company shall be entitled, subject to its compliance with
Section 4.09, to issue Additional Notes under this Indenture which shall have
identical terms as the Initial Notes issued on the Issue Date or the Exchange
Notes, other than with respect to the date of issuance and issue price, first
payment of interest and rights under a related Registration Rights Agreement, if
any.
With respect to any Additional Notes, the Company shall set forth in a
resolution of the Board of Directors and an Officers' Certificate, a copy of
each which shall be delivered to the Trustee, the following information:
(a) the aggregate principal amount at maturity of such
Additional Notes to be authenticated and delivered pursuant to this
Indenture;
(b) the issue price, the issue date and the CUSIP number and
corresponding ISIN of such Additional Notes; and
(c) whether such Additional Notes shall be Transfer Restricted
Securities and issued in the form of Initial Notes as set forth in Exhibit A to
this Indenture or shall be issued in the form of Exchange Notes as set forth in
Exhibit A to this Indenture.
SECTION 2.16 ONE CLASS OF NOTES
The Initial Notes issued on the Issue Date, any Additional
Notes and all Exchange Notes issued in exchange therefor shall be treated as a
single class for all purposes under this Indenture.
SECTION 2.17 CUSIP, ISIN OR OTHER SIMILAR NUMBERS
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The Company in issuing the Notes may use "CUSIP," "ISIN" or
other similar numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP," "ISIN" or other similar numbers in notices of redemption or offers
to purchase as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of a redemption or offer to
purchase and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption or offer to purchase shall
not be affected by any defect in or omission of such numbers. The Company shall
promptly notify the Trustee of any change in the "CUSIP," "ISIN" or other
similar numbers.
ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01 NOTICES TO TRUSTEE
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, the Company shall furnish to the
Trustee, at least 35 days but not more than 60 days (unless a shorter period is
acceptable to the Trustee) (or, in the case of a redemption pursuant to Section
3.08, by 11:00 a.m. New York time (or such other time of day acceptable to the
Trustee which will permit it to give the notice referred to in the last
paragraph of Section 3.03) at least one Business Day prior to the Special
Redemption Date) before a redemption date, an Officers' Certificate setting
forth (i) the clause of this Indenture pursuant to which the redemption shall
occur, (ii) the redemption date, (iii) the principal amount of Notes to be
redeemed and (iv) the redemption price (expressed as a percentage or principal
amount).
SECTION 3.02 SELECTION OF NOTES TO BE REDEEMED
If less than all of the Notes are to be redeemed or purchased
in an offer to purchase at any time, the Trustee shall select the Notes to be
redeemed or purchased among the Holders of the Notes in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot
or in accordance with any other method the Trustee shall deem fair and
appropriate; provided that no Notes of $1,000 or less shall be redeemed in part.
In the event of partial redemption by lot, the particular Notes to be redeemed
shall be selected, unless otherwise provided herein, not less than 30 nor more
than 60 days prior to the redemption date by the Trustee from the outstanding
Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. Notes and
portions of Notes selected shall be in amounts of $1,000 or whole multiples of
$1,000; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not a multiple
of $1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
SECTION 3.03 NOTICE OF REDEMPTION
Except as provided in Section 3.08, at least 30 days but not
more than 60 days before a redemption date, the Company shall mail or cause to
be mailed, by first class mail, a notice of redemption to each Holder whose
Notes are to be redeemed at its registered address, except that redemption
notices may be mailed more than 60 days prior to a redemption date if the notice
is issued in connection with a defeasance of the Notes or a satisfaction and
discharge of this Indenture.
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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 being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date;
(g) the paragraph of the Notes and/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 Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided that the Company
shall have delivered to the Trustee, at least 35 days prior to the redemption
date (unless a shorter period is acceptable to the Trustee), an Officers'
Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the preceding paragraph.
Notwithstanding the foregoing, in the event that the Notes
will be redeemed pursuant to the Special Redemption as set forth in Section
3.08, the Trustee shall, at the Company's request and in the Company's name and
expense, give notice of such redemption to each Holder in accordance with this
Section at least one Business Day prior to the Special Redemption Date.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION
Once notice of redemption is mailed in accordance with Section
3.03 hereof or delivered in accordance with Section 3.08 hereof, Notes called
for redemption shall become irrevocably due and payable on the redemption date
at the redemption price. A notice of redemption may not be conditional.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE
Prior to 11:00 a.m. New York City time on the redemption date,
the Company shall deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption price of and accrued interest and Additional
Interest, if any, on all Notes to be redeemed on that date. Subject to
applicable abandoned property laws, the Trustee or the Paying Agent shall
promptly, upon request, return to the Company any money deposited with the
Trustee or the Paying Agent by the Company in excess of the amounts necessary to
pay the redemption price of, and accrued interest on, all Notes to be redeemed.
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If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after an interest record date but on or prior to the related interest
payment date, then any accrued and unpaid interest shall be paid to the Person
in whose name such Note was registered at the close of business on such record
date. If any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption
date until such principal is paid, and to the extent lawful on any interest not
paid on such unpaid principal, in each case at the rate provided in the Notes
and in Section 4.01 hereof.
SECTION 3.06. NOTES REDEEMED IN PART
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon receipt of an Authentication Order, the Trustee shall
authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.07. OPTIONAL REDEMPTION
(a) Except as set forth in clause (b) of this Section 3.07,
the Company shall not have the option to redeem the Notes pursuant to this
Section 3.07 prior to November 15, 2009. Thereafter, the Company shall have the
option to the Notes, in whole or in part at the redemption prices (expressed as
percentages of principal amount) set forth below, plus accrued and unpaid
interest and Additional Interest thereon, if any, to the applicable redemption
date, if redeemed during the twelve-month period beginning on November 15 of the
years indicated below:
Year Percentage
---- ----------
2009.............................................................. 103.875%
2010.............................................................. 102.583%
2011.............................................................. 101.292%
2012 and thereafter............................................... 100.000%
If the redemption date is on or after an interest payment
record date and on or before the related interest payment date, the accrued and
unpaid interest and Additional Interest, if any, will be paid to the Holder in
whose name the Note is registered at the close of business on such record date,
and no additional interest or Additional Interest, if any, will be payable to
Holders whose Notes will be subject to redemption by the Company.
(b) Notwithstanding the provisions of clause (a) of this
Section 3.07, at any time prior to November 15, 2007, the Company may on any one
or more occasions redeem up to 35% of the aggregate principal amount of Notes
issued under this Indenture at a redemption price equal to 107.750% of the
principal amount thereof on the redemption date, plus accrued and unpaid
interest and Additional Interest, if any, to the redemption date, with the net
cash proceeds of one or more Equity Offerings by the Company; provided that (1)
at least 65% of the aggregate principal amount of Notes issued under this
Indenture remains outstanding immediately after the occurrence of such
redemption (excluding Notes held by the Company and its Subsidiaries); and (2)
that such redemption shall occur within 90 days of the date of the closing of
such offering.
(c) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
SECTION 3.08. MANDATORY SPECIAL REDEMPTION.
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Notwithstanding the foregoing, in the event that the
Acquisition is not consummated on or prior to December 27, 2004 or if the
Acquisition Agreement is terminated prior to such time, the Company shall redeem
(the "Special Redemption") the Notes, in whole but not in part, on or prior to
December 28, 2004, at a redemption price (the "Special Redemption Price") in
cash equal to 100.0% of the principal amount of the Notes plus accrued and
unpaid interest to the Special Redemption Date. The "Special Redemption Date"
means the earlier of the date specified by the Company in an Officers'
Certificate delivered in accordance with the Escrow Agreement and December 28,
2004. The Trustee shall deliver to each Holder a written notice (specifying the
information specified in Section 3.03) of the Special Redemption one Business
Day prior to the Special Redemption Date.
SECTION 3.09. MANDATORY REDEMPTION
Except as set forth in Sections 3.08, 4.10 and 4.15, the
Company shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES
The Company shall pay or cause to be paid the principal of or
premium, if any, Additional Interest, if any, or interest on the Notes on the
dates and in the manner provided in the Notes. Principal, premium, if any,
interest and Additional Interest, if any, shall be considered paid on the date
due if the Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 11:00 a.m. Eastern Time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay
all principal of or premium, if any, Additional Interest, if any, or interest on
the Notes then due. The Company shall pay all Additional Interest, if any, in
the same manner on the dates and in the amounts set forth in the Registration
Rights Agreement.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to the then applicable interest rate on the Notes to the extent
lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Additional Interest (without regard to any applicable grace period) at the same
rate to the extent lawful.
The Company shall make all interest, premium, if any,
Additional Interest, if any, and principal payments by wire transfer of
immediately available funds to any Holder who shall have given written
directions to the Company or the Paying Agent to make such payments by wire
transfer pursuant to the wire transfer instructions supplied to the Company or
the Paying Agent by such Holder on or prior to the applicable record date. All
other payments on Notes shall be made at the office or agency of the Paying
Agent and Registrar within the City and State of New York unless the Company
elects to make interest payments by check mailed to the Holders at their address
set forth in the register of Holders.
Payments in respect of Notes represented by a Global Note
(including interest, premium, if any, Additional Interest, if any, and principal
payments) shall be made by wire transfer of immediately available funds to the
accounts specified by DTC.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY
The Company shall maintain in the Borough of Manhattan, The
City of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-
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registrar) where Notes may be surrendered for registration of transfer or for
exchange and where notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. The Company shall give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the office of the Trustee, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx (the "New York Corporate Trust Office").
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby designates the New York Corporate Trust
Office as one such office or agency of the Company in accordance with Section
2.04.
SECTION 4.03. REPORTS
Whether or not required by the Commission, so long as any
Notes are outstanding, the Company shall furnish to the Trustee and the Holders
of Notes, within the time periods specified in the Commission's rules and
regulations:
(i) all quarterly and annual financial information
that would be required to be contained in a filing with the Commission
on Forms 10-Q and 10-K if the Company was required to file such Forms,
including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and, with respect to the annual
information only, a report on the annual financial statements by the
Company's certified independent accountants; and
(ii) all current reports that would be required to be
filed with the Commission on Form 8-K if the Company were required to
file such reports.
If the Company has designated any of its Subsidiaries as
Unrestricted Subsidiaries, then the quarterly and annual financial information
required by the preceding paragraph shall include a reasonably detailed
presentation, either on the face of the financial statements or in the footnotes
thereto, and in a "Management's Discussion and Analysis of Financial Condition
and Results of Operations," of the financial condition and results of operations
of the Company and its Restricted Subsidiaries separate from the financial
condition and results of operations of the Unrestricted Subsidiaries of the
Company.
In addition, following the consummation of the Exchange Offer
contemplated by the Registration Rights Agreement, whether or not required by
the Commission, the Company shall file a copy of all of the information and
reports referred to in clauses (i) and (ii) above with the Commission for public
availability within the time periods specified in the Commission's rules and
regulations (unless the Commission will not accept such a filing) and make such
information available to securities analysts and prospective investors upon
request. In addition, the Company and the Guarantors have agreed that, for so
long as any Notes remain outstanding, they shall furnish to the Holders and to
securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
The Company also shall comply with the other provisions of TIA
Section 314(a). Delivery of such reports, information and documents to the
Trustee is for informational purposes only and
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the Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely conclusively on Officers'
Certificates). The Trustee shall have no duty or responsibility to review such
reports, information or documents.
SECTION 4.04. COMPLIANCE CERTIFICATE
(a) The Company and each Guarantor (to the extent that such
Guarantor is so required under the TIA) shall deliver to the Trustee, within 90
days after the end of each fiscal year of the Company, an Officers' Certificate
stating that a review of the activities of the Company and its Subsidiaries
during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this Indenture, and
further stating, as to each such Officer signing such certificate, that to the
best of his or her knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions of this Indenture (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of which he or she
may have knowledge and what action the Company is taking or proposes to take
with respect thereto).
(b) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, as soon as possible and in any event within
10 days after any Officer becoming aware of any Event of Default, an Officers'
Certificate specifying such Event of Default and what action the Company is
taking or proposes to take with respect thereto.
SECTION 4.05. TAXES
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent all material taxes,
assessments, and governmental charges levied or imposed upon the Company or any
Restricted Subsidiary, except such as are contested in good faith and by
appropriate proceedings or where the failure to pay or discharge the same would
not have a material adverse effect on the ability of the Company to perform its
obligations under the Notes or this Indenture.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS
The Company and each of the Guarantors covenants (to the
extent that it may lawfully do so) that it shall not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay, extension or usury law wherever enacted, now or at any time hereafter
in force, that may affect the covenants or the performance of this Indenture;
and the Company and each of the Guarantors covenants (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
SECTION 4.07. RESTRICTED PAYMENTS
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or
distribution on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests (including, without limitation, any
payment in connection with any merger or consolidation involving the
Company or any of its Restricted Subsidiaries) or to the direct or
indirect holders of the
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Company's or any of its Restricted Subsidiaries' Equity Interests in
their capacity as such (other than dividends or distributions payable
to the Company or a Restricted Subsidiary of the Company or payable in
Equity Interests (other than Disqualified Stock) of the Company);
(2) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, any payment in connection with any
merger or consolidation involving the Company) any Equity Interests of
the Company or any direct or indirect parent of the Company;
(3) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value any
Indebtedness that is subordinated to the Notes or the Subsidiary
Guarantees, except payments of interest (or the equivalent of
Additional Interest, if any) or payments of principal at the Stated
Maturity thereof; or
(4) make any Restricted Investment (all such payments and
other actions set forth in these clauses (1) through (4) above being
collectively referred to as "Restricted Payments"),
unless, at the time of and after giving effect to such Restricted Payment:
(1) no Default or Event of Default has occurred and is
continuing or would occur immediately after giving effect to such
Restricted Payment;
(2) the Company would, at the time of such Restricted Payment
and after giving pro forma effect thereto as if such Restricted Payment
had been made at the beginning of the applicable four-quarter period,
have been permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.09; and
(3) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Company and its
Restricted Subsidiaries after the date of this Indenture (excluding
Restricted Payments permitted by clauses (2), (3), (4), (5), (6) and
(7) of the next succeeding paragraph), is less than the sum, without
duplication, of:
(a) an amount equal to the difference (but not less
than zero) between (A) Cumulative Operating Cash Flow and (B)
the product of 1.3 times Cumulative Total Interest Expense,
plus
(b) 100% of the fair market value of the Qualified
Proceeds received by the Company since the date of this
Indenture as a contribution to its common equity capital
(other than any capital contribution pursuant to clause (7)(e)
of the next paragraph or from the issue or sale of Equity
Interests of the Company (other than Disqualified Stock) or
from the issue or sale of convertible or exchangeable
Disqualified Stock or convertible or exchangeable debt
securities of the Company that have been converted into or
exchanged for such Equity Interests (other than Equity
Interests (or Disqualified Stock or debt securities) sold to a
Subsidiary of the Company or an employee stock ownership plan,
option plan or similar trust to the extent such sale to an
employee stock ownership plan or similar trust is financed by
loans from or guaranteed by the Company or any Restricted
Subsidiary unless such loans have been repaid with cash on or
prior to the date of determination), plus
(c) to the extent that any Restricted Investment that
was made after the date of this Indenture is sold for cash or
otherwise liquidated or repaid for cash, the lesser of (i) the
return of capital with respect to such Restricted Investment,
whether through
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interest payments, principal payments, dividends or other
distributions or payments or Qualified Proceeds (less the cost
of disposition, if any) and (ii) the initial amount of such
Restricted Investment, plus
(d) to the extent that any Unrestricted Subsidiary of
the Company is redesignated as a Restricted Subsidiary after
the date of this Indenture, the lesser of (i) the fair market
value of the Company's Investment in such Subsidiary as of the
date of such redesignation and (ii) such fair market value as
of the date on which such Subsidiary was most recently
designated as an Unrestricted Subsidiary plus the amount of
any Investments in such Unrestricted Subsidiary subsequent to
the date such Subsidiary was most recently designated as an
Unrestricted Subsidiary.
The preceding provisions shall not prohibit:
(1) the payment of any dividend within 60 days after the date
of declaration of the dividend, if at the date of declaration the
dividend payment would have complied with the provisions of this
Indenture;
(2) the redemption, repurchase, retirement, defeasance or
other acquisition of any Indebtedness subordinated to the Notes or any
Subsidiary Guarantee or of any Equity Interests of the Company in
exchange for, or out of the net cash proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Company) of, Equity
Interests of the Company (other than Disqualified Stock and other than
Equity Interests issued or sold to an employee stock ownership plan or
similar trust to the extent such sale to an employee stock ownership
plan or similar trust is financed by loans from or guaranteed by the
Company or any Restricted Subsidiary unless such loans have been repaid
with cash on or prior to the date of determination); provided that the
amount of any such net cash proceeds that are utilized for any such
redemption, repurchase, retirement, defeasance or other acquisition
shall be excluded from clause (3)(b) of the preceding paragraph;
(3) the redemption, repurchase, retirement, defeasance or
other acquisition of Indebtedness subordinated to the Notes or any
Subsidiary Guarantee with the net cash proceeds from an incurrence of
Permitted Refinancing Indebtedness;
(4) the payment of any dividend or distribution by a
Restricted Subsidiary of the Company to the holders of its Equity
Interests on a pro rata basis (or on a basis more favorable to the
Company and its Restricted Subsidiary);
(5) so long as no Default or Event of Default shall have
occurred and be continuing or would be caused thereby, the repurchase,
redemption or other acquisition or retirement for value of any Equity
Interests of the Company or any Restricted Subsidiary of the Company or
any direct or indirect parent of the Company held by any then current
or former director, officer or employee of, or consultant to, the
Company or any of its Restricted Subsidiaries issued pursuant to any
management equity plan or stock option plan or any other management or
employee benefit plan or agreement or the declaration and payment of
dividends by the Company to, or the making of loans to, any direct or
indirect parent in order to effectuate any such repurchase, redemption
or other acquisition or retirement for value by such direct or indirect
parent; provided that the aggregate price paid for all such
repurchased, redeemed, acquired or retired Equity Interests may not
exceed $5.0 million in any fiscal year; provided that the amount
available in any given fiscal year shall be increased by the excess, if
any, of (i) $5.0 million over (ii) the amount used pursuant to this
clause (5) in the immediately preceding two fiscal years;
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(6) any payments made in connection with the consummation of
the Transactions on substantially the terms described in the offering
memorandum;
(7) the declaration and payment of dividends by the Company
to, or the making of loans to, any direct or indirect parent in amounts
required for any direct or indirect parent companies to pay:
(a) franchise taxes and other fees, taxes and
expenses required to maintain their corporate existence,
(b) federal, state and local income taxes, to the
extent such income taxes are attributable to the income of the
Company and its Restricted Subsidiaries and, to the extent of
the amount actually received from its Unrestricted
Subsidiaries, in amounts required to pay such taxes to the
extent attributable to the income of such Unrestricted
Subsidiaries,
(c) reasonable salary, bonus and other benefits
payable to directors, officers and employees of any direct or
indirect parent company of the Company to the extent such
salaries, bonuses and other benefits are attributable to the
ownership or operation of the Company and its Restricted
Subsidiaries,
(d) general corporate overhead expenses of any direct
or indirect parent company of the Company to the extent such
expenses are attributable to the ownership or operation of the
Company and its Restricted Subsidiaries, and
(e) amounts payable by K&F Parent, Inc. under the Tax
Benefit Note; provided that the aggregate principal amount of
such dividend or loan shall not exceed the lesser of (i) the
amount payable thereunder and (ii) $20.0 million; provided
further that any tax refund or cash benefit received by any
direct or indirect parent company of the Company arising from
the Tender Offers shall be contributed to the capital of the
Company as a capital contribution; and
(8) so long as no Default or Event of Default shall have
occurred and be continuing or would be caused thereby, other Restricted
Payments in an aggregate amount since the date of this Indenture not to
exceed $15.0 million.
The amount of all Restricted Payments (other than cash) will
be the fair market value on the date of the Restricted Payment of the asset(s)
or securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The fair market value of any assets or securities that are required to be valued
by this covenant will be determined by (a) an executive officer of the Company
if the value is less than $10.0 million or (b) in all other cases, by the
Company's Board of Directors.
SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or permit to exist or
become effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its
Capital Stock to the Company or any of its Restricted Subsidiaries, or
with respect to any other interest or
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participation in, or measured by, its profits, or pay any Indebtedness
owed to the Company or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its
Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company or
any of its Restricted Subsidiaries.
However, the preceding restrictions shall not apply to
encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and Credit
Facilities as in effect on the date of this Indenture and any
amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings of those
agreements, provided that the amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or
refinancings are no more restrictive, taken as a whole, with respect to
such dividend and other payment restrictions than those contained in
those agreements on the date of this Indenture;
(2) this Indenture, the Notes and the Subsidiary Guarantees
and any other agreement or instrument entered into after the date of
this Indenture; provided that such agreement or instrument is no more
restrictive, taken as a whole, than this Indenture and the Notes;
(3) applicable law, rule, regulation or order (including
agreements with regulatory authorities);
(4) any agreement or instrument governing Indebtedness or
Capital Stock of a Person acquired by the Company or any of its
Restricted Subsidiaries as in effect at the time of such acquisition
(except to the extent such Indebtedness was incurred or such Capital
Stock was issued in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the
Person, or the property or assets of the Person, so acquired, including
any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings of any such
agreements or instruments, provided that the amendments, modifications,
restatements, renewals, increases, supplements, refundings,
replacements or refinancings are no more restrictive, taken as a whole,
than those contained in the agreements governing such original
agreement or instrument as in effect on the date of this Indenture,
provided, further, that, in the case of Indebtedness, such Indebtedness
was permitted by the terms of this Indenture to be incurred;
(5) customary non-assignment provisions in leases, licenses or
contracts entered into in the ordinary course of business;
(6) Capital Lease Obligations, mortgage financings or purchase
money obligations for property acquired in the ordinary course of
business that impose restrictions on that property of the nature
described in clause (3) of the preceding paragraph;
(7) any agreement for the sale or other disposition of assets
or Capital Stock of a Restricted Subsidiary permitted under this
Indenture that restricts the sale of assets, distributions or loans by
that Restricted Subsidiary pending its sale or other disposition;
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(8) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive, taken as a whole,
than those contained in the agreements governing the Indebtedness being
refinanced;
(9) Liens securing Indebtedness otherwise permitted to be
incurred under the provisions of Section 4.12 that limit the right of
the debtor to dispose of the assets subject to such Liens;
(10) provisions with respect to the disposition or
distribution of assets or property in joint venture agreements;
provided that such restrictions apply only to the assets or property
subject to such joint venture; and
(11) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the ordinary
course of business.
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, "incur") any
Indebtedness (including Acquired Debt), and the Company shall not issue, and
shall not permit any Guarantor to issue, any Disqualified Stock and shall not
permit any of its Restricted Subsidiaries that are not Guarantors to issue any
shares of preferred stock; provided, however, that the Company and any Guarantor
may incur Indebtedness (including Acquired Debt) and the Company and any
Guarantor may issue Disqualified Stock if the Fixed Charge Coverage Ratio for
the Company's most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Stock is issued would
have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro
forma application of the net proceeds therefrom), as if the additional
Indebtedness had been incurred or Disqualified Stock had been issued, as the
case may be, at the beginning of such four-quarter period.
The first paragraph of this covenant shall not prohibit:
(1) the incurrence by the Company or any Restricted Subsidiary
of additional Indebtedness and letters of credit under one or more
Credit Facilities in an aggregate principal amount at any one time
outstanding under this clause (1) (with letters of credit being deemed
to have a principal amount equal to the maximum potential liability of
the Company and its Restricted Subsidiaries thereunder) not to exceed
$530.0 million, less the sum of all principal payments with respect to
such Indebtedness pursuant to clause (A) of Section 4.10;
(2) the incurrence by the Company and its Restricted
Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Company and the Guarantors of
Indebtedness represented by the Notes (other than Additional Notes) and
the related Subsidiary Guarantees and the Exchange Notes and the
related Subsidiary Guarantees to be issued in exchange therefor
pursuant to the registration rights agreement;
(4) (A) Indebtedness incurred to finance the purchase,
improvement or construction of property, plant or equipment (including
through the purchase of all of the Capital Stock of a Person) so long
as such Indebtedness is secured by a Lien on the property, plant or
equipment so purchased, improved or constructed and such Indebtedness
does not exceed the value of such
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property, plant or equipment so purchased or constructed or the value
of such improvements and such Lien shall not extend to or cover other
assets of the Company or any of its Restricted Subsidiaries other than
the property, plant or equipment so purchased, improved or constructed
or the value of such improvements and the real property, if any, on
which the property so constructed, improved or purchased, is situated
and the accessions, attachments, replacements and improvements thereto
or (B) Indebtedness incurred in connection with any lease financing
transaction in conjunction with the acquisition of new property or
improvements to existing property; provided that such lease financing
transaction is consummated within 90 days of such acquisition and the
aggregate of the Indebtedness incurred pursuant to clauses (A) and (B)
does not exceed $15.0 million during any fiscal year (such amount is
referred to as the "Maximum Amount"); provided that the Maximum Amount
for each year shall be increased by the excess, if any, of (a) $30.0
million over (b) the amount of expenditures made in reliance on the
provisions of this clause (4) for the immediately preceding two years;
(5) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness (other than
intercompany Indebtedness) in exchange for, or the net proceeds of
which are used to redeem, repurchase, retire, defease, or otherwise
refund, refinance, or replace Indebtedness that was permitted by this
Indenture to be incurred under the first paragraph of this covenant or
clauses (2), (3), (4) or (5) of this paragraph;
(6) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company
and any of its Restricted Subsidiaries; provided, however, that:
(a) if the Company or any Guarantor is the obligor on
such Indebtedness, such Indebtedness must be expressly
subordinated to the prior payment in full in cash of all
Obligations with respect to the Notes, in the case of the
Company, or the Subsidiary Guarantee, in the case of a
Guarantor; and
(b) (i) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by
a Person other than the Company or a Restricted Subsidiary of
the Company, (ii) any sale or other transfer of any such
Indebtedness to a Person that is neither the Company nor a
Restricted Subsidiary of the Company or (iii) the designation
of a Restricted Subsidiary that holds such Indebtedness as an
Unrestricted Subsidiary, will be deemed, in each case, to
constitute an incurrence of such Indebtedness by the Company
or such Restricted Subsidiary, as the case may be, that was
not permitted by this clause (6);
(7) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations;
(8) the guarantee by the Company or any of the Guarantors of
Indebtedness of the Company or any Guarantor that was permitted to be
incurred by another provision of this covenant;
(9) obligations incurred in the ordinary course of business
under (a) bankers acceptances or trade letters of credit which are to
be repaid in full not more than one year after the date on which such
Indebtedness is originally incurred to finance the purchase of goods by
the Company or a Restricted Subsidiary of the Company; (b) standby
letters of credit issued for the purpose of supporting (i) workers'
compensation liabilities of the Company or any of its Restricted
Subsidiaries as required by law, (ii) obligations with respect to
leases of the Company or any of its Restricted Subsidiaries, or (iii)
performance, payment, deposit or surety obligations
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of the Company or any of its Restricted Subsidiaries; (c) performance
bonds and surety bonds, and refinancings thereof; and (d) guarantees of
Indebtedness incurred in the ordinary course of business of suppliers,
licensees, franchisees, or customers in an aggregate amount not to
exceed $5.0 million at any time outstanding;
(10) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business,
provided, however, that such Indebtedness is extinguished within five
business days of the Company or its applicable Restricted Subsidiary
being advised of such incurrence;
(11) Indebtedness under guarantees in respect of obligations
of joint ventures of the Company or any of its Restricted Subsidiaries
in aggregate principal amount not to exceed $20.0 million at any one
time;
(12) Indebtedness incurred in connection with any sale and
leaseback transaction; provided that the aggregate of the Indebtedness
incurred pursuant to this clause (12) shall not exceed $30.0 million at
any time outstanding;
(13) Indebtedness to repurchase shares, or cancel options to
purchase shares, of Equity Interests of the Company or any Restricted
Subsidiary of the Company or any direct or indirect parent of the
Company held by any then current or former director, officer or
employee of, or consultant to, the Company or any of its Restricted
Subsidiaries; provided that the aggregate of the Indebtedness incurred
pursuant to this clause (13) shall not exceed $5.0 million in any
fiscal year; provided that the amount available in any given fiscal
year shall be increased by the excess, if any, of (i) $5.0 million over
(ii) the amount used pursuant to this clause (13) in the immediately
preceding two fiscal years;
(14) Indebtedness arising from any agreement providing for
indemnities, guarantees, purchase price adjustments, holdbacks,
contingency payment obligations based on the performance of the
acquired or disposed assets or similar obligations (other than
guarantees of Indebtedness) incurred by any Person in connection with
the acquisition or disposition of assets;
(15) the incurrence by the Company or any of its Restricted
Subsidiaries of Acquired Debt related to the acquisition of a Permitted
Business if the Fixed Charge Coverage Ratio for the Company's most
recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date of such
incurrence of Acquired Debt (the "Relevant Fixed Charge Coverage
Ratio") determined immediately after giving effect to such incurrence
and the related acquisition (including through a merger, consolidation
or otherwise) is higher than the Relevant Fixed Charge Coverage Ratio
determined immediately before giving effect to such incurrence and the
related acquisition;
(16) the issuance of any preferred stock by a Restricted
Subsidiary of the Company to the Company or to any other wholly-owned
Restricted Subsidiary of the Company; and
(17) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness or the issuance of Disqualified
Stock or preferred stock of Restricted Subsidiaries in an aggregate
principal amount (or accreted value, as applicable) at any time
outstanding not to exceed $25.0 million.
If any Non-Recourse Debt of an Unrestricted Subsidiary shall
at any time cease to constitute Non-Recourse Debt or such Unrestricted
Subsidiary shall be redesignated a Restricted
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Subsidiary, such event will be deemed to constitute an incurrence of
Indebtedness by a Restricted Subsidiary.
For purposes of determining compliance with this Section 4.09:
(1) in the event that an item of proposed Indebtedness meets
the criteria of more than one of the categories described in clauses
(1) through (17) above, or is entitled to be incurred pursuant to the
first paragraph of this covenant, the Company will be permitted to
classify (or later classify or reclassify in whole or in part in its
sole discretion) such item of Indebtedness in any manner that complies
with this covenant;
(2) the accrual of interest, the accretion or amortization of
original issue discount, the payment of interest on any Indebtedness in
the form of additional Indebtedness with the same, or less onerous,
terms, the payment of dividends on Disqualified Stock in the form of
additional shares of the same class of Disqualified Stock, the accrual
of dividends on Disqualified Stock and the accretion of the liquidation
preference of Disqualified Stock will not be deemed to be an incurrence
of Indebtedness or an issuance of Disqualified Stock for purposes of
this covenant; provided, in each such case, that the amount thereof is
included in the Fixed Charges of the Company; and
(3) for the purposes of determining compliance with any
dollar-denominated restriction on the incurrence of Indebtedness
denominated in a foreign currency, the dollar-equivalent principal
amount of such Indebtedness incurred pursuant thereto shall be
calculated based on the relevant currency exchange rate in effect on
the earlier of the date that such Indebtedness was incurred or the date
that the Company or its applicable Restricted Subsidiary committed to
incur such Indebtedness.
SECTION 4.10. ASSET SALES
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may
be) receives consideration at the time of the Asset Sale at least equal
to the fair market value of the assets or Equity Interests issued or
sold or otherwise disposed of (such fair market value to be determined
on the date of contractually agreeing to such Asset Sale);
(2) the fair market value is determined (a) by an executive
officer of the Company if the value is less than $10.0 million or (b)
in all other cases, by a resolution of the Company's Board of
Directors, in either such case, as set forth in an Officers'
Certificate delivered to the Trustee; and
(3) at least 75% of the consideration received in the Asset
Sale by the Company or such Restricted Subsidiary is in the form of
cash or Cash Equivalents. For purposes of this clause (3), each of the
following shall be deemed to be cash:
(a) the amount of any liabilities, as shown on the
Company's or such Restricted Subsidiary's most recent balance
sheet or in the notes thereto, of the Company or such
Restricted Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Notes
or any Subsidiary Guarantee) that are assumed by the
transferee of any such assets; and
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(b) any securities, notes or other obligations
received by the Company or any such Restricted Subsidiary from
such transferee that are substantially concurrently, subject
to normal settlement periods, converted by the Company or such
Restricted Subsidiary into cash or Cash Equivalents (to the
extent of the cash or Cash Equivalents received in that
conversion); and
(c) property received as consideration for such Asset
Sale that would otherwise constitute a permitted application
of Net Proceeds (or other cash in such amount) under clauses
(B) or (D) under the next succeeding paragraph below.
Within 360 days after the receipt of any Net Proceeds from an
Asset Sale, the Company or any of its Restricted Subsidiaries may apply an
amount of cash equal to the amount of those Net Proceeds at its option to:
(A) repay Senior Debt and, if such Senior Debt repaid is
revolving credit Indebtedness, to correspondingly reduce commitments
with respect thereto;
(B) acquire (including by way of merger or consolidation) all
or substantially all of the assets of, or a majority of the Voting
Stock of, another Permitted Business;
(C) make a capital expenditure relating to an asset used or
useful in a Permitted Business; or
(D) acquire other long-term assets that are used or useful in
a Permitted Business.
Pending the final application of any Net Proceeds, the Company may
temporarily reduce revolving credit borrowings or otherwise invest the Net
Proceeds in any manner that is not prohibited by this Indenture.
To the extent that the Company and its Restricted Subsidiaries do not
apply an amount of cash equal to the amount of such Net Proceeds from Asset
Sales during such period as provided in the second preceding paragraph the
amount not so applied shall constitute "Excess Proceeds." No later than the
365th day after the Asset Sale (or, at the Company's option, an earlier date),
if the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company
shall make an offer (an "Asset Sale Offer") to all Holders of Notes and all
holders of other Indebtedness that is pari passu with the Notes containing
provisions similar to those set forth in this Indenture with respect to offers
to purchase or redeem with the proceeds of sales of assets to purchase the
maximum principal amount of Notes and such other pari passu Indebtedness that
may be purchased out of the Excess Proceeds (the "Offer Amount"). The offer
price in any Asset Sale Offer will be equal to 100% of the principal amount (or
accreted value, as applicable) of the Notes and such other pari passu
Indebtedness, plus accrued and unpaid interest and Additional Interest (or its
equivalent with respect to any such pari passu Indebtedness), if any, to the
date of purchase, and will be payable in cash, in each case, in integral
multiples of $1,000. If any Excess Proceeds remain after consummation of an
Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not
otherwise prohibited by this Indenture. If the aggregate principal amount of
Notes and other pari passu Indebtedness tendered in such Asset Sale Offer
exceeds the amount of Excess Proceeds, the Excess Proceeds will be allocated by
the Company to the Notes and such other pari passu Indebtedness on a pro rata
basis (based upon the respective principal amounts (or accreted value, if
applicable) of the Notes and such other pari passu Indebtedness tendered into
such Asset Sale Offer) and the portion of each Note to be purchased will
thereafter be determined by the Trustee on a pro rata basis among the Holders of
such Notes with appropriate adjustments such that the Notes may only be
purchased in integral multiples of $1,000. Upon completion of each Asset Sale
Offer, the amount of Excess Proceeds will be reset at zero.
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Upon the commencement of an Asset Sale Offer, the Company
shall send, by first class mail, a notice to the Trustee and 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:
(1) that the Asset Sale Offer is being made pursuant to this
Section 4.11 and that such Asset Sale Offer shall remain open for 20
Business Days;
(2) the Offer Amount attributable to the Notes, the purchase
price and the purchase date of the Notes tendered pursuant to the Asset
Sale Offer (the "Purchase Date");
(3) that any Note not tendered or accepted for payment shall
continue to accrue interest and Additional Interest, if any;
(4) that, unless the Company defaults in making such payment,
any Note accepted for payment pursuant to the Asset Sale Offer shall
cease to accrue interest, and Additional Interest, if any;
(5) 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" on the reverse of
the Note completed, or transfer by book-entry transfer, to the Company,
a Depositary, if appointed by the Company, or a Paying Agent at the
address specified in the notice at least three Business Days before the
Purchase Date;
(6) that Holders shall be entitled to withdraw their election
if the Company, the Depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the offer period, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is withdrawing
his election to have such Note purchased;
(7) that, if the aggregate accreted value of Notes and
aggregate principal amount of such other pari passu Indebtedness
tendered by Holders exceeds the Offer Amount, the Company shall select
the Notes and such other pari passu Indebtedness to be purchased on a
pro rata basis on the basis of the aggregate accreted value of Notes
and the aggregate principal amount of such other pari passu
Indebtedness tendered (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of
$1,000 aggregate principal amount at maturity, or integral multiples
thereof, shall be purchased); and
(8) that Holders whose Notes were purchased only in part shall
be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry
transfer).
On or before the Purchase Date, the Company shall, to the
extent lawful, accept for payment, on a pro rata basis to the extent necessary,
the Offer Amount of Notes and such other pari passu Indebtedness or portions
thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer
Amount has been tendered, all Notes, and such other pari passu Indebtedness or
portions thereof tendered, and shall deliver to the Trustee an Officers'
Certificate stating that such Notes, and such other pari passu Indebtedness or
portions thereof were accepted for payment by the Company in accordance with the
terms of this Section 4.10. The Company, the Depositary or the Paying Agent, as
the case may be, shall on the Purchase Date mail or deliver to each tendering
Holder an amount equal to the purchase price of the Notes tendered by such
Holder and accepted by the Company for purchase, and the Company
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shall promptly issue a new Note, and the Trustee, upon written request from the
Company shall authenticate and mail or deliver such new Note to such Holder, in
a principal amount at maturity equal to any unpurchased portion of the Note
surrendered. Any Note not so accepted shall be promptly mailed or delivered by
the Company to the Holder thereof. The Company shall publicly announce the
results of the Asset Sale Offer promptly after Purchase Date.
If the Purchase Date is on or after an interest payment record
date and on or before the related interest payment date, any accrued and unpaid
interest and Additional Interest, if any, will be paid to the Holder in whose
name a Note is registered at the close of business on such record date, and no
interest or Additional Interest, if any, will be payable to Holders who tender
Notes pursuant to the Asset Sale Offer.
The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent those laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the Asset Sale
provisions of this Indenture, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations under the Asset Sale provisions of this Indenture by virtue of such
conflict.
Prior to making any Asset Sale Offer, but in any event within
30 days following the date on which such Asset Sale Offer would otherwise be
required, the Company shall either repay all outstanding Senior Debt (or
commitments to extend Senior Debt) that prohibits prepayment or repurchase of
the Notes pursuant to an Asset Sale Offer or obtain the requisite consents, if
any, under all agreements governing such Senior Debt or commitments to permit
the repurchase of Notes required by this Section 4.10.
SECTION 4.11. TRANSACTIONS WITH AFFILIATES
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate of the Company or any of its Restricted Subsidiaries
(each, an "Affiliate Transaction") involving aggregate consideration in excess
of $1.0 million, unless:
(1) the Affiliate Transaction is on terms that are at least as
favorable to the Company or the relevant Restricted Subsidiary as those
that would have been obtained in a comparable transaction by the
Company or such Restricted Subsidiary with an unrelated Person,
provided that any such Affiliated Transaction shall be conclusively
deemed to be at least as favorable as the terms which could be obtained
on an arm's length basis with an unrelated Person if such transaction
is approved by a majority of the Company's directors (including a
majority of the disinterested members of the Board of Directors); and
(2) the Company delivers to the Trustee:
(a) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $2.0 million, a resolution of the
Board of Directors set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with this
covenant and that such Affiliate Transaction has been approved
by a majority of the disinterested members of the Board of
Directors; and
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(b) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $10.0 million, or if the Company
does not have any disinterested members, an opinion as to the
fairness to the holders of the Notes of such Affiliate
Transaction from a financial point of view issued by an
accounting, appraisal or investment banking firm of national
standing selected by the Company.
The following items will not be deemed to be Affiliate
Transactions and, therefore, will not be subject to the provisions of the prior
paragraph:
(1) transactions between the Company or any of its Restricted
Subsidiaries and any employee, officer or director of, or consultant
to, any parent company of the Company, or any of its Restricted
Subsidiaries that are approved by the disinterested members of the
Board of Directors;
(2) reasonable and customary directors' fees, indemnification
and similar arrangements for officers, directors or employees,
consulting fees, officer or employee salaries, bonuses or employment
agreements, compensation or employee benefit arrangements and incentive
arrangements with any officer, director or employee of any parent
company of the Company, or any Restricted Subsidiary and payments under
any indemnification arrangements permitted by applicable law;
(3) transactions between or among the Company and/or its
Restricted Subsidiaries;
(4) transactions with a Person that is an Affiliate of the
Company or any Restricted Subsidiary solely because the Company or any
Restricted Subsidiary owns an Equity Interest in, or controls, such
Person;
(5) the pledge of Equity Interests of Unrestricted
Subsidiaries to support the Indebtedness thereof;
(6) issuances and sales of Equity Interests (other than
Disqualified Stock) to Affiliates of the Company;
(7) Restricted Payments that are permitted by the provisions
of this Indenture in Section 4.07;
(8) the payment of management fees and related expenses to
Aurora Management Partners LLC and its Affiliates; provided that such
fees shall not, in the aggregate, exceed $2.0 million (plus out of
pocket expenses) in any twelve-month period commencing after the date
of this Indenture;
(9) the payment of transaction, consulting and advisory fees
and related expenses to Aurora Management Partners LLC and its
Affiliates for financial advisory, financing, underwriting or placement
services or in respect of other investment banking activities,
including without limitation, in connection with acquisitions or
divestitures, in each case, which payments are (a) reasonably related
to the services performed and (b) either (i) under $10.0 million in any
fiscal year or (ii) approved by a majority of the members of the Board
of Directors of the Company; and
(10) the payment of all fees and expenses related to the
Transactions, which are described in the Offering Memorandum.
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SECTION 4.12. LIENS
The Company shall not and shall not permit any of its
Restricted Subsidiaries to, create, incur, assume or otherwise cause or suffer
to exist any Lien of any kind securing Indebtedness, Attributable Debt or trade
payables (other than Permitted Liens) upon any of their property or assets, now
owned or hereafter acquired, unless all payments due under this Indenture and
the Notes are secured (i) in the case of Liens securing Indebtedness that is
pari passu in right of payment to the Notes or any Subsidiary Guarantee, on an
equal and ratable basis with the obligations so secured until such time as such
obligations are no longer secured by a Lien and (ii) in the case of Liens
securing Indebtedness that is expressly subordinate or junior in right of
payment to the Notes or any Subsidiary Guarantee, on a senior basis to the
obligations so secured with the same relative priority as the Notes or such
Subsidiary Guarantee, as the case may be, shall have to that subordinated or
junior Indebtedness until such time as such obligations are no longer secured by
a Lien.
SECTION 4.13. BUSINESS ACTIVITIES
The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any business other than Permitted Businesses, except to
such extent as would not be material to the Company and its Subsidiaries taken
as a whole.
SECTION 4.14. CORPORATE EXISTENCE
Subject to Article 5 hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect (i)
its corporate existence, and the corporate, partnership or other existence of
each of its Restricted Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Company or any such Restricted Subsidiary and (ii) the rights (charter and
statutory), licenses and franchises of the Company and its Subsidiaries, except
where the failure to do so would not have a material adverse effect on the
ability of the Company to perform its obligations under the Notes or this
Indenture.
SECTION 4.15. OFFER TO REPURCHASE UPON CHANGE OF CONTROL
If a Change of Control occurs, the Company will be required to
make an offer (a "Change of Control Offer") to each Holder of Notes, unless the
Company has exercised its right to redeem all the Notes as described under
Section 3.07, to repurchase all or any part (equal to $1,000 or an integral
multiple of $1,000) of that Holder's Notes on the terms set forth in this
Indenture. In the Change of Control Offer, the Company will offer a payment in
cash (the "Change of Control Payment") equal to 101% of the aggregate principal
amount of Notes repurchased plus accrued and unpaid interest and Additional
Interest, if any, on the Notes repurchased, to the date of purchase (the "Change
of Control Payment Date"). Within 30 days following any Change of Control, the
Company shall mail a notice to each Holder stating: (i) that the Change of
Control Offer is being made pursuant to this Section 4.15 (and describing the
transactions or transactions that constitute the Change of Control) and that all
Notes tendered shall be accepted for payment; (ii) the purchase price and Change
of Control Payment Date, which shall be no earlier than 30 days and no later
than 60 days from the date such notice is mailed; (iii) that any Note not
tendered shall continue to accrue interest and Additional Interest, if any; (iv)
that, unless the Company defaults in the payment of the Change of Control
Payment, all Notes accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest and Additional Interest, if any, after the Change
of Control Payment Date; (v) that Holders electing to have any Notes purchased
pursuant to a Change of Control Offer shall be required to surrender the Notes,
with the form entitled "Option of Holder to Elect Purchase" on the reverse of
the Notes completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day preceding the Change of
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Control Payment Date; (vi) that Holders shall be entitled to withdraw their
election if the Paying Agent receives, not later than the close of business on
the second Business Day preceding the Change of Control Payment Date, a
facsimile transmission or letter setting forth the name of the Holder, the
principal amount at maturity of Notes delivered for purchase, and a statement
that such Holder is withdrawing his election to have the Notes purchased; and
(vii) that Holders whose Notes are being purchased only in part shall be issued
new Notes equal in principal amount at maturity to the unpurchased portion of
the Notes surrendered, which unpurchased portion must be in a minimum principal
amount of $2,000 or an integral multiple of $1,000 in excess thereof.
The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent those laws and regulations are applicable in connection with the
repurchase of the Notes as a result of a Change of Control. To the extent that
the provisions of any securities laws or regulations conflict with the Change of
Control provisions of this Indenture, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations under the covenant described above by virtue of such
conflict.
On the Change of Control Payment Date, the Company shall, to
the extent lawful:
(1) accept for payment all Notes or portions of Notes properly
tendered pursuant to the Change of Control Offer;
(2) deposit with the paying agent an amount equal to the
Change of Control Payment in respect of all Notes or portions of Notes
properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes
properly accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions of Notes being
purchased by the Company.
The Paying Agent shall promptly mail to each Holder of Notes
validly tendered the Change of Control Payment for such Notes, and the Trustee
shall promptly authenticate and mail (or cause to be transferred by book entry)
to each Holder a new Note equal in principal amount to any unpurchased portion
of the Notes surrendered, if any; provided that each new Note will be in a
minimum principal amount of $2,000 or an integral multiple of $1,000 in excess
thereof. The Company shall publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment
Date.
If the Change of Control Payment Date is on or after an
interest payment record date and on or before the related interest payment date,
any accrued and unpaid interest and Additional Interest, if any, shall be paid
to the Holder in whose name a Note is registered at the close of business on
such record date, and no other interest or Additional Interest, if any, will be
payable to Holders who tender pursuant to the Change of Control Offer.
The Company shall not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change of Control Offer
made by the Company and purchases all Notes properly tendered and not withdrawn
under the Change of Control Offer.
Prior to complying with any of the other provisions of this
Section 4.15, but in any event within 90 days following a Change of Control, the
Company shall either repay all outstanding Senior Debt (or commitments to extend
Senior Debt) that prohibits prepayment or repurchase of the Notes pursuant to a
Change of Control Offer or obtain the requisite consents, if any, under all
agreements
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governing such Senior Debt or commitments to permit the repurchase of Notes
required by this Section 4.15.
SECTION 4.16. FUTURE SUBSIDIARY GUARANTEES
If the Company or any of its Restricted Subsidiaries acquires
or creates another Domestic Subsidiary after the date hereof, then the Company
shall cause that newly acquired or created Domestic Subsidiary, unless such
newly acquired or created Subsidiary has been designated an Unrestricted
Subsidiary under this Indenture, to become a Guarantor and execute a Subsidiary
Guarantee pursuant to a supplemental indenture in form and substance set forth
in Exhibit E-1 and deliver an Opinion of Counsel satisfactory to the Trustee, to
the Trustee within ten Business Days of the date on which it was acquired or
created. In addition, if any of the Company's Foreign Subsidiaries guarantee any
Indebtedness of the Company, then the Company shall cause such Foreign
Subsidiary to become a Guarantor and execute a Subsidiary Guarantee pursuant to
a supplemental indenture in form and substance set forth in Exhibit E-1 and
deliver an Opinion of Counsel satisfactory to the Trustee, to the Trustee within
ten Business Days of the date on which it guaranteed such Indebtedness.
Each Subsidiary Guarantee will be limited to an amount not to
exceed the maximum amount that can be guaranteed by that Restricted Subsidiary
without rendering the Subsidiary Guarantee, as it relates to such Restricted
Subsidiary, voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer or similar laws affecting the rights of creditors generally.
SECTION 4.17. DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES
The Board of Directors may designate any Restricted Subsidiary
to be an Unrestricted Subsidiary if that designation would not cause a Default.
If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the
aggregate fair market value of all outstanding Investments owned by the Company
and its Restricted Subsidiaries in the Subsidiary properly designated will be
deemed to be an Investment made as of the time of the designation and will
reduce the amount available for Restricted Payments under the first paragraph
(or clause (7) of the second paragraph) of Section 4.07 or Permitted
Investments, as determined by the Company. That designation will only be
permitted if the Investment would be permitted at that time and if the
Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary
to be a Restricted Subsidiary if the redesignation would not cause a Default.
All Subsidiaries of Unrestricted Subsidiaries shall be
automatically deemed to be Unrestricted Subsidiaries. All designations of
Subsidiaries as Unrestricted Subsidiaries and revocations thereof must be
evidenced by filing with the Trustee resolutions of the Board of Directors of
the Company and an Officers' Certificate certifying compliance with the
foregoing provisions.
SECTION 4.18. PAYMENTS FOR CONSENT
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Holder of Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Notes unless such consideration is offered to be paid
and is paid to all Holders of the Notes that consent, waive or agree to amend in
the time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
SECTION 4.19. LIMITATION ON LAYERING DEBT
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The Company shall not incur, create, issue, assume, guarantee
or otherwise become liable for any Indebtedness that is subordinate or junior in
right of payment to any Senior Debt of the Company and senior in any respect in
right of payment to the Notes. No Guarantor will incur, create, issue, assume,
guarantee or otherwise become liable for any Indebtedness that is subordinate or
junior in right of payment to the Senior Debt of such Guarantor and senior in
any respect in right of payment to such Guarantor's Subsidiary Guarantee.
ARTICLE 5
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION OR SALE OF ASSETS
The Company may not, directly or indirectly: (1) consolidate
or merge with or into another Person (whether or not the Company is the
surviving corporation); or (2) sell, assign, transfer, convey, lease or
otherwise dispose of all or substantially all of the properties or assets of the
Company and its Restricted Subsidiaries taken as a whole, in one or more related
transactions, to another Person, unless:
(1) either: (a) the Company is the surviving corporation; or
(b) the Person formed by or surviving any such consolidation or merger
(if other than the Company) or to which such sale, assignment,
transfer, conveyance, lease or other disposition has been made is a
corporation organized or existing under the laws of the United States,
any state of the United States or the District of Columbia;
(2) the Person formed by or surviving any such consolidation
or merger (if other than the Company) or the Person to which such sale,
assignment, transfer, conveyance, lease or other disposition has been
made assumes all the obligations of the Company under the Notes, this
Indenture and the Registration Rights Agreement pursuant to agreements
reasonably satisfactory to the Trustee;
(3) immediately after such transaction no Default or Event of
Default exists; and
(4) the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such
sale, assignment, transfer, conveyance, lease or other disposition has
been made will, on the date of such transaction after giving pro forma
effect thereto and any related financing transactions as if the same
had occurred at the beginning of the applicable four-quarter period, be
permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.09.
For purposes of this Section, the sale, assignment, transfer,
conveyance, lease or other disposition of all or substantially all of the
properties and assets of one or more Restricted Subsidiaries of the Company,
which properties and assets, if held by the Company instead of such Restricted
Subsidiaries, would constitute all or substantially all of the properties and
assets of the Company on a consolidated basis, shall be deemed to be the
transfer of all or substantially all of the properties and assets of the
Company.
Notwithstanding the preceding clause (4), (i)(x) any
Restricted Subsidiary may consolidate with, merge into, sell, assign, convey,
lease or otherwise transfer all or part of its properties and assets to the
Company or to any other Restricted Subsidiary that is a Guarantor and (y) the
Company
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may merge with an Affiliate incorporated solely for the purpose of
reincorporating the Company in another jurisdiction to realize tax benefits and
(ii) the Company may consummate the Merger.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED
Upon any consolidation or merger, or any sale, assignment,
transfer, conveyance or other disposition of all or substantially all of the
assets of the Company in accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, 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, conveyance or other
disposition, the provisions of this Indenture referring to the Company shall
refer instead to the successor corporation and not to the Company), and may
exercise every right and power of the Company under this Indenture with the same
effect as if such successor Person had been named as the Company herein. The
predecessor company shall be relieved from the obligation to pay the principal
of and interest on the Notes (and its obligations to the Trustee pursuant to
Section 7.07) only in the case of a sale or other disposition of all or
substantially all of the properties and assets of all of the Company and its
Restricted Subsidiaries taken as a whole that meets the requirements of Section
5.01 hereof. The successor Person shall execute a supplemental indenture in form
and substance set forth in Exhibit E-2 and satisfactory to the Trustee and
deliver an Opinion of Counsel satisfactory to the Trustee, to the Trustee within
ten Business Days of the date of any such consolidation or merger, or any sale,
assignment, transfer, conveyance or other disposition of all or substantially
all of the assets of the Company.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT
Each of the following is an Event of Default:
(1) default for 30 days in the payment when due of interest
on, or Additional Interest with respect to, the Notes, whether or not
prohibited by the subordination provisions of this Indenture;
(2) default in payment when due of the principal of, or
premium, if any, on the Notes, whether or not prohibited by the
subordination provisions of this Indenture;
(3) failure by the Company to comply with any of the
provisions of Section 5.01 hereof;
(4) failure by the Company or any of its Restricted
Subsidiaries to purchase Notes tendered pursuant to an offer required
by Section 4.10 or Section 4.15 hereof;
(5) failure by the Company or any of its Restricted
Subsidiaries for 60 days after notice to comply with any of the other
agreements in this Indenture;
(6) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed of the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries) whether such
Indebtedness or guarantee now exists, or is created after the date of
this Indenture, if that default:
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(a) is caused by a failure to pay at the final Stated
Maturity the principal amount of such Indebtedness prior to
the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment
Default"); or
(b) results in the acceleration of such Indebtedness
prior to its Stated Maturity,
and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default
or the maturity of which has been so accelerated, aggregates
$15.0 million or more;
(7) failure by the Company or any of its Subsidiaries to pay
final judgments (not subject to appeal) aggregating in excess of $15.0
million, which judgments are not paid, discharged or stayed within a
period of 60 days after the date on which the right to appeal has
expired;
(8) except as permitted by this Indenture, any Subsidiary
Guarantee shall be held in any judicial proceeding to be unenforceable
or invalid or shall cease for any reason to be in full force and effect
or any Guarantor, or any Person acting on behalf of any Guarantor,
shall deny or disaffirm its obligations under its Subsidiary Guarantee;
(9) the Company or any of its Significant Subsidiaries or any
group of Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary pursuant to or within the meaning of Bankruptcy
Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief
against it in an involuntary case,
(c) consents to the appointment of a Note Custodian
of it or for all or substantially all of its property,
(d) makes a general assignment for the benefit of its
creditors, or
(e) generally is not paying its debts as they become
due; and
(10) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(a) is for relief against the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary in an
involuntary case;
(b) appoints a Custodian of the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary or
for all or substantially all of the property of the Company or
any of its Restricted Subsidiaries that is a Significant
Subsidiary; or
(c) orders the liquidation of the Company or any of
its Restricted Subsidiaries that is a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days.
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The term "Custodian" means any receiver, trustee, assignee,
liquidation, sequestrator or similar official under any Bankruptcy Law.
SECTION 6.02. ACCELERATION
In the case of an Event of Default arising from clause (9) or
(10) of the first paragraph of Section 6.01, with respect to the Company or any
Restricted Subsidiary that is a Significant Subsidiary or any group of
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary,
all outstanding Notes will become due and payable immediately without further
action or notice. If any other Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes, by notice in writing to the Trustee and the Company
designated as a "Notice of Default," may declare all the Notes to be due and
payable (a) if there shall no longer be any Credit Facility that constitutes
Senior Debt, immediately or (b) if there shall be a Credit Facility that
constitutes Senior Debt, upon the first to occur of (i) the declaration of an
acceleration of Indebtedness outstanding under any such Credit Facility and (ii)
the fifth Business Day after receipt by the Company and the agents or trustees
acting on behalf of any such Credit Facility of such declaration given under the
indenture and, upon any such declaration, such principal amount (and premium, if
any) and accrued interest, notwithstanding anything contained in the indenture
or the Notes to the contrary will become immediately due and payable. Any such
declaration with respect to the Notes may be annulled by the Holders of a
majority in aggregate principal amount of the then outstanding Notes upon the
conditions set forth herein.
Notwithstanding the foregoing, if an Event of Default
specified in clause (6) of Section 6.01 shall have occurred and be continuing,
such Event of Default and any consequential acceleration shall be automatically
rescinded if (i) the Indebtedness that is the subject of such Event of Default
has been repaid, or (ii) if the default relating to such Indebtedness is waived
or cured and if such Indebtedness has been accelerated, then the Holders thereof
have rescinded their declaration of acceleration in respect of such
Indebtedness.
Any such declaration with respect to the Notes may be
rescinded and annulled by the Holders of a majority in aggregate principal
amount at maturity of the outstanding Notes by written notice to the Trustee,
except a continuing Default or Event of Default in the payment of principal of,
or interest or premium or Additional Interest, if any, on the Notes, if (i) the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction, (ii) all existing Events of Default have been cured or
waived except nonpayment of principal of or interest on the Notes that has
become due solely by such declaration of acceleration, (iii) to the extent the
payment of such interest is lawful, interest (at the same rate specified in the
Notes) on overdue installments of interest and overdue payments of principal,
which has become due otherwise than by such declaration of acceleration, has
been paid, (iv) the Company has paid the Trustee its reasonable compensation and
reimbursed the Trustee for its expenses, disbursements and advances and (v) in
the event of the cure or waiver of a Default or Event of Default of the type
described in Section 6.01(9) and (10) the Trustee has received an Officers'
Certificate and Opinion of Counsel that such Default or Event of Default has
been cured or waived. No such rescission shall affect any subsequent Default or
impair any right consequent thereto.
SECTION 6.03. OTHER REMEDIES
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal, premium on,
Additional Interest, if any, and interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a
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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
Subject to Section 9.02 and in any event in accordance with
the conditions set forth in the last paragraph of Section 6.02, Holders of not
less than a majority in aggregate principal amount of the then outstanding Notes
by notice to the Trustee may on behalf of the Holders of all of the Notes waive
an existing Default or Event of Default and its consequences hereunder, except a
continuing Default or Event of Default in the payment of the principal of,
premium and Additional Interest on, or interest on the Notes (including in
connection with an offer to purchase); provided that the Holders of a majority
in aggregate principal amount of the then outstanding Notes may rescind an
acceleration and its consequences, including any related payment default that
resulted from such acceleration, so long as such acceleration was not the result
of a payment default. Upon any such waiver, such Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured
for every purpose of this Indenture, but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
SECTION 6.05. CONTROL BY MAJORITY
Holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines
may be unduly prejudicial to the rights of other Holders of Notes or that may
involve the Trustee in personal liability.
SECTION 6.06. LIMITATION ON SUITS
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice
of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the
then outstanding Notes make a written request to the Trustee to pursue
the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee
a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority over
another Holder of a Note.
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT
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Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal, premium and
Additional Interest, if any, and interest on the Note, on or after the
respective due dates expressed in the Note (including in connection with an
offer to purchase), or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE
If an Event of Default specified in Section 6.01(1) or (2)
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for the whole
amount of principal of, premium and Additional Interest, if any, and interest
remaining unpaid on the Notes and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders of the Notes allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Notes), its creditors or its property and
shall be entitled and empowered to collect, receive and distribute any money or
other property payable or deliverable on any such claims and any custodian in
any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof out
of the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10. PRIORITIES
After an Event of Default, any money or other property
distributable in respect of the Company's obligations under this Indenture shall
be paid in the following order:
First: to the Trustee (including any predecessor Trustee), its
agents and attorneys for amounts due under Section 7.07 hereof,
including payment of all compensation, expense and liabilities
incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium and Additional Interest, if any, and
interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal,
premium and Additional Interest, if any and interest, respectively; and
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Third: to the Company or to such party as a court of competent
jurisdiction shall direct in writing.
The Trustee may fix a record date and payment date for any
payment to Holders of Notes pursuant to this Section 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section does not apply to a suit by the Trustee, a suit
by a Holder 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.
(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, 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) or (d) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved 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.
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(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), (c) and (e) of this Section.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have offered
to the Trustee security and indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE
(a) The Trustee may, in the absence of bad faith on its part,
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.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel selected by it and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection from
liability in respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon.
(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 Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities that might be incurred by it in compliance with such
request or direction.
(g) Any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors of the Company may be sufficiently
evidenced by a Board Resolution.
(h) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine, to the extent necessary and consistent with each inquiry or
investigation, the books, records and premises of the Company, personally or by
agent or attorney at the sole cost of the Company and shall incur no liability
or additional liability of any kind by reason of such inquiry or investigation.
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(i) The Trustee shall not be deemed to have notice, nor shall
it be charged with knowledge, of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of such Default or 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.
(j) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
(k) The Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or titles or
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person authorized to
sign an Officers' Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.
(l) 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.
(m) The Trustee shall not be responsible or liable for any
failure or delay in the performance of its obligations under this Indenture
arising out of or caused, directly or indirectly, by circumstances beyond its
reasonable control, including, without limitation, acts of God; earthquakes;
fire; flood; terrorism; wars and other military disturbances; sabotage;
epidemics; riots; interruptions; loss or malfunctions of utilities, computer
(hardware or software) or communication services; accidents; labor disputes;
acts of civil or military authority and governmental action.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. If the Trustee does become a creditor of the Company or any Guarantor,
this indenture limits its rights to obtain payment of claims in certain cases,
or to realize on certain property received in respect of any such claim as
security or otherwise. However, in the event that the Trustee acquires any
conflicting interest it must eliminate such conflict within 90 days, apply to
the Commission for permission to continue as trustee or resign. Any Agent may do
the same with like rights and duties. The Trustee is also subject to Sections
7.10 and 7.11 hereof.
SECTION 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 or
any security for the payment of the Notes, it shall not be accountable for the
Company's use of the proceeds from the Notes or any money paid to the Company or
upon the Company's direction under any provision of this Indenture, it shall not
be responsible for the use or application of any money received by any Paying
Agent other than the Trustee, and it shall not be responsible for any statement
or recital herein or any statement in the Notes or any other document in
connection with the sale of the Notes or pursuant to this Indenture other than
its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS
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If a Default or Event of Default occurs and is continuing and
if it is actually known to a Responsible Officer of the Trustee, the Trustee
shall mail to Holders of Notes a notice of the Default or Event of Default
within 90 days after it occurs. Except in the case of a Default or Event of
Default in payment of principal of, premium and Additional Interest, if any, or
interest on any Note, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders of the Notes.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES
Within 60 days after each November 15 beginning with the
November 15 following the Issue Date, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA Section 313(a) (but if no
event described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA Section 313(b)(2) to the extent applicable. The Trustee
shall also transmit by mail all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Company and filed with the Commission
and each stock exchange on which the Notes are listed in accordance with TIA
Section 313(d). The Company shall promptly notify the Trustee when the Notes are
listed on any stock exchange or any delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY
The Company shall pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and services
hereunder. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee promptly upon written request for all reasonable disbursements, advances
and expenses incurred or made by it in addition to the compensation for its
services. Such expenses shall include the reasonable compensation, disbursements
and expenses of the Trustee's agents and counsel.
The Company and the Guarantors shall indemnify the Trustee
against any and all losses, liabilities or expenses incurred by it arising out
of or in connection with the acceptance or administration of its duties under
this Indenture, including the costs and expenses of enforcing this Indenture
against the Company and the Guarantors (including this Section 7.07) and
defending itself against any claim (whether asserted by the Company, the
Guarantors or any Holder or any other person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except to
the extent any such loss, liability or expense may be attributable to its
negligence or bad faith or willful misconduct. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company or any of the
Guarantors of their obligations hereunder. The Company or such Guarantor shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel and the Company shall pay the reasonable fees and expenses
of such counsel. Neither the Company nor any Guarantor need pay for any
settlement made without its consent.
The obligations of the Company and the Guarantors under this
Section 7.07 shall survive the resignation or removal of the Trustee, the
satisfaction and discharge of this Indenture and the termination of this
Indenture.
To secure the Company's payment obligations in this Section,
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 resignation or removal
of the Trustee, the satisfaction and discharge of this Indenture and the
termination of this Indenture.
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In addition and without prejudice to its rights hereunder,
when the Trustee incurs expenses or renders services after an Event of Default
specified in Section 6.01(9) or (10) 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.
SECTION 7.08. REPLACEMENT OF TRUSTEE
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders of Notes of a majority in principal amount of the then outstanding Notes
may remove the Trustee by so notifying the Trustee and the Company in writing.
The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of Notes 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 of a Note
who has been a Holder of a Note for at least six months, fails to comply with
Section 7.10, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee; provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC
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If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
Person, the successor Person without any further act shall be the successor
Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $50 million as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b). Nothing herein shall prohibit the Trustee from making the
application to the Commission referred to in the penultimate paragraph of
Section 310(b) of the TIA.
For purposes of Section 310(b)(1) of the TIA and to the extent
permitted thereby, the Trustee shall not be deemed to have a conflicting
interest arising from its capacity as trustee in respect of (i) the Indenture,
dated October 15, 1997, pursuant to which K&F Industries, Inc.'s 9-1/4% Senior
Subordinated Notes due 2007 are outstanding and (ii) the Indenture, dated
December 20, 2002, pursuant to which K&F Industries, Inc.'s 9-5/8% Senior
Subordinated Notes due 2010 are outstanding.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 8.02 or 8.03 hereof applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article Eight.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Company and 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 all of its obligations with
respect to all outstanding Notes (including Subsidiary Guarantees) and this
Indenture on the date the conditions set forth below are satisfied and the
Guarantors shall be deemed to have been discharged with respect to their
Subsidiary Guarantees (hereinafter, "Legal Defeasance"). For this purpose, Legal
Defeasance means that the Company and the Guarantors shall be deemed to have
paid and discharged the entire Indebtedness represented by the outstanding Notes
(including Subsidiary Guarantees), which shall thereafter be deemed to be
"outstanding" only for the purposes of Section 8.05 hereof and the other
Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all its other obligations under such Notes, the Subsidiary Guarantees
and this Indenture (and the Trustee, on demand of and at the
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expense of the Company, shall execute proper instruments acknowledging the
same); provided that the following provisions which shall survive until
otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in Section
8.04 hereof, and as more fully set forth in such Section, payments in respect of
the principal of or premium, if any, Additional Interest, if any, or interest on
the Notes when such payments are due, (b) the Company's obligations with respect
to the Notes concerning issuing temporary Notes, registration of Notes and
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 hereunder and the
Company's and the Guarantor's obligations in connection therewith and (d) this
Article 8. Subject to compliance with this Article 8, the Company may exercise
its option under this Section 8.02 notwithstanding the prior exercise of its
option under Section 8.03 hereof.
SECTION 8.03. COVENANT DEFEASANCE
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Company and the Guarantors shall,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be released from its obligations under the covenants contained in Article 4
(other those in Sections 4.01, 4.02, 4.06 and 4.14) and in clause (3) of Section
5.01(4) hereof with respect to the outstanding Notes on and after the date the
conditions set forth in Section 8.04 are satisfied (hereinafter, "Covenant
Defeasance"), and the Notes shall thereafter be deemed not "outstanding" for the
purposes of any direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes and Subsidiary Guarantees, the Company and the Guarantors may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a Default
or an Event of Default under Section 6.01 hereof, but, except as specified
above, the remainder of this Indenture and such Notes and Subsidiary Guarantees
shall be unaffected thereby. In addition, upon the Company's exercise under
Section 8.01 hereof of the option applicable to this Section 8.03 hereof,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
Sections 6.01(6) through 6.01(8) 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:
(1) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Notes, cash in U.S.
dollars, non-callable Government Securities, or a combination of cash
in U.S. dollars and non-callable Government Securities, in amounts as
will be sufficient, in the opinion of a nationally recognized
investment bank or firm of independent public accountants, to pay the
principal of, or interest and premium and Additional Interest, if any,
on the outstanding Notes on the Stated Maturity or on the applicable
redemption date specified by the Company, as the case may be, and the
Company must specify whether the Notes are being defeased to maturity
or to a particular redemption date;
(2) in the case of an election under Section 8.02 hereof, the
Company has delivered to the Trustee an opinion of counsel reasonably
acceptable to the Trustee confirming that:
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(a) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling;
or
(b) since the date of this Indenture, there has been a
change in the applicable federal income tax law, in
either case to the effect that, and based thereon
such opinion of counsel will confirm that, the
Holders of the outstanding Notes will not recognize
income, gain or loss for federal income tax purposes
as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in
the same manner and at the same times as would have
been the case if such Legal Defeasance had not
occurred;
(3) in the case of an election under Section 8.03 hereof, the
Company has delivered to the Trustee an opinion of counsel reasonably
acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
(4) no Default or Event of Default has occurred and is
continuing on the date of such deposit (other than a Default or Event
of Default resulting from the borrowing of funds to be applied to such
deposit) or insofar as Events of Default from bankruptcy or insolvency
events are concerned, at any time in the period ending on the 91st day
after the date of deposit;
(5) such Legal Defeasance or Covenant Defeasance will not
result in a breach or violation of, or constitute a default under, any
material agreement or instrument (other than this Indenture) to which
the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an opinion
of counsel, subject to customary qualifications, to the effect that
after the 91st day following the deposit, no trust funds will be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally or
in connection with Covenant Defeasance, such trust funds will be
subject to a first priority lien in favor of the Trustee for the
benefit of the Holders of Notes;
(7) the Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of Notes over the other creditors
of the Company with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others; and
(8) the Company must deliver to the Trustee an Officers'
Certificate and an opinion of counsel, each stating that all conditions
precedent relating to the Legal Defeasance or the Covenant Defeasance
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 non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.05, the "Trustee") pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company
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acting as Paying Agent) as the Trustee may determine, to the Holders of such
Notes of all sums due and to become due thereon in respect of principal of or
premium, if any, Additional Interest, if any, or interest, but such money need
not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or non-callable 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 THE COMPANY
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of or
premium, if any, Additional Interest, if any, or interest on the Notes and
remaining unclaimed for two years after such principal, and premium, if any,
Additional Interest, if any, or interest has become due and payable shall be
paid to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as a
secured creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in The New York Times and The Wall Street Journal (national edition),
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such notification
or publication, any unclaimed balance of such money then remaining shall be
repaid to the Company.
SECTION 8.07. REINSTATEMENT
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Securities in accordance with Section
8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's and the Guarantor's obligations
under this Indenture and the Notes and the Subsidiary Guarantees shall be
revived and reinstated as though no deposit had occurred pursuant to Section
8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted
to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the
case may be; provided that, if the Company has made any payment of principal of,
premium, if any, Additional Interest, if any, or interest on any Note following
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the money held
by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES
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Notwithstanding Section 9.02 of this Indenture, the Company,
the Guarantors and the Trustee may amend or supplement this Indenture or the
Notes without the consent of any Holder of a Note to:
(1) cure any ambiguity, defect or inconsistency;
(2) provide for uncertificated Notes in addition to or in
place of certificated Notes (provided that the uncertificated Notes are
issued in registered form for purposes of Section 163(f) of the Code,
or in a manner such that the uncertificated Notes are described in
Section 163(f)(2)(B) of the Code);
(3) provide for the assumption of the Company's obligations to
Holders of Notes in the case of a merger or consolidation or sale of
all or substantially all of the Company's assets;
(4) make any change that would provide any additional rights
or benefits to the Holders of Notes or that does not adversely affect
the rights under this Indenture of any such Holder;
(5) provide for the issuance of Additional Notes in accordance
with the provisions set forth in this Indenture;
(6) evidence and provide for the acceptance of an appointment
of a successor trustee;
(7) conform this Indenture or the Notes to the "Description of
Notes" set forth in the Offering Memorandum;
(8) add Subsidiary Guarantees with respect to the Notes; or
(9) comply with requirements of the Commission in order to
effect or maintain the qualification of the indenture under the TIA.
Upon the request of the Company accompanied by a resolution of
the Board of Directors of the Company authorizing the execution of any such
amended or supplemental indenture, and upon receipt by the Trustee of the
documents described in Section 9.06 hereof, the Trustee shall join with the
Company and the Guarantors in the execution of any amended or supplemental
Indenture authorized or permitted by the terms of this Indenture and to make any
further appropriate agreements and stipulations that may be therein contained,
but the Trustee shall not be obligated to enter into such amended or
supplemental Indenture that affects its own rights, duties or immunities under
this Indenture or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES
Except as provided in Section 9.01 or below in this Section
9.02, the Company and the Trustee may amend or supplement this Indenture and the
Notes may be amended or supplemented with the consent of the Holders of at least
a majority in principal amount at maturity of the Notes then outstanding 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 or compliance with any provision of this Indenture or the Notes
may be waived with the consent of the Holders of a majority in principal amount
at maturity of the then outstanding Notes 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). Section 2.09 hereof shall
determine which Notes are considered to be "outstanding" for purposes of this
Section 9.02.
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However, without the consent of each Holder affected, an
amendment or waiver under this Section 9.02 may not (with respect to any Notes
held by a nonconsenting Holder):
(1) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the principal of (or the premium on) or change the
fixed maturity of any Note or alter the provisions with respect to the
redemption of the Notes (other than provisions relating to the
covenants contained in Section 4.10 and Section 4.15);
(3) reduce the rate of or change the time for payment of
interest or Additional Interest on any Note;
(4) waive a Default or Event of Default in the payment of
principal of, or interest or premium or Additional Interest, if any, on
the Notes (except a rescission of acceleration of the Notes by the
Holders of at least a majority in aggregate principal amount of the
Notes and a waiver of the payment default that resulted from such
acceleration);
(5) make any Note payable in currency other than that stated
in the Notes;
(6) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders of Notes
to receive payments of principal of, or interest or premium or
Additional Interest, if any, on the Notes;
(7) waive a redemption payment with respect to any Note (other
than a payment required by one of the covenants contained in Section
4.10 and Section 4.15);
(8) release any Guarantor from any of its obligations under
its Subsidiary Guarantee or this Indenture, except in accordance with
the terms of this Indenture; or
(9) make any change in the preceding amendment and waiver
provisions.
In addition, any amendment to, or waiver of, the provisions of
this Indenture relating to subordination that adversely affects the rights of
the Holders of the Notes will require the consent of the Holders of at least 75%
in aggregate principal amount of Notes then outstanding.
Upon the request of the Company accompanied by a resolution of
the Board of Directors of the Company authorizing the execution of any such
amended or supplemental Indenture, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section
9.06 hereof, the Trustee shall join with the Company 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.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT
Every amendment or supplement to this Indenture or the Notes
shall be set forth in an amended or supplemental Indenture that complies with
the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS
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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
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.
SECTION 9.05. NOTICE OF AMENDMENT; NOTATION ON OR EXCHANGE OF NOTES
After any amendment under this Article becomes effective, the
Company shall mail to Holders of Notes a notice briefly describing such
amendment. The failure to give such notice to all Holders of Notes, or any
defect therein, shall not impair or affect the validity of an amendment under
this Article.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue and the Trustee shall, upon receipt
of an Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article 9 if the amendment or supplement, in the
sole discretion of the Trustee, does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. In executing any amended or
supplemental indenture, the Trustee shall be entitled to receive and (subject to
Section 7.01 hereof) shall be fully protected in relying upon, in addition to
the documents required by Section 11.04 hereof, an Officers' Certificate and an
Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture.
ARTICLE 10
SUBSIDIARY GUARANTEES
SECTION 10.01. GUARANTEE
(a) Subject to this Article 10, each of the Guarantors hereby,
jointly and severally, unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability of this Indenture,
the Notes or the obligations of the Company hereunder or thereunder, that:
(i) the principal of, premium and Additional
Interest, if any, and interest on the Notes will be promptly paid in
full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of and interest on the
Notes, if any, if lawful, and all other obligations of the Company to
the Holders or the Trustee hereunder or thereunder will be promptly
paid in full or performed, all in accordance with the terms hereof and
thereof, and
(ii) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that same will
be promptly paid in full when due or performed in
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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 will 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.
(b) The Guarantors hereby agree that their obligations
hereunder are 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 with respect to any
provisions hereof or thereof, the recovery of any judgment against the Company,
any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor.
(c) Each Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenant that this
Subsidiary Guarantee will not be discharged except by complete performance of
the obligations contained in the Notes and this Indenture.
(d) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company or
the Guarantors, any amount paid by either to the Trustee or such Holder, this
Subsidiary Guarantee, to the extent theretofore discharged, will be reinstated
in full force and effect.
(e) Each Guarantor agrees that it will 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, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof
for the purposes of this Subsidiary Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (2) 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) will forthwith become due and
payable by the Guarantors for the purpose of this Subsidiary Guarantee.
(f) The Guarantors will 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 Subsidiary Guarantee.
SECTION 10.02. LIMITATION ON GUARANTOR LIABILITY
Each Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Subsidiary
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Subsidiary Guarantee. To effectuate the foregoing
intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree
that the obligations of such Guarantor will be limited to the maximum amount
that will, after giving effect to such maximum amount and all other contingent
and fixed liabilities of such Guarantor that are relevant under such laws, and
after giving effect to any collections from, rights to receive contribution from
or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 10, result in the
obligations of such Guarantor under its Subsidiary Guarantee not constituting a
fraudulent transfer or conveyance.
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SECTION 10.03. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS
No Guarantor may sell or otherwise dispose of all or substantially all
of its assets to, or consolidate with or merge with or into (whether or not such
Guarantor is the surviving Person), another Person, other than the Company or
another Guarantor, unless:
(1) immediately after giving effect to such transaction, no Default or
Event of Default exists; and
(2) either:
(a) the Person acquiring the property in any such sale or
disposition or the Person formed by or surviving any
such consolidation or merger unconditionally assumes
all the obligations of that Guarantor under this
Indenture (including its Subsidiary Guarantee) and
the Registration Rights Agreement pursuant to
agreements reasonably satisfactory to the trustee; or
(b) the Net Proceeds of such sale or other disposition
will be required to be applied in accordance with the
applicable provisions of this Indenture.
SECTION 10.04. RELEASES OF SUBSIDIARY GUARANTEES
The Subsidiary Guarantee of a Guarantor will be released:
(1) in connection with any sale, disposition or other transfer
(including through merger or consolidation) of (x) the Equity Interests
of such Guarantor following which such Guarantor is no longer a
Subsidiary of the Company or (y) all or substantially all the assets of
the applicable Guarantor, in each case, to a Person that is not (either
before or after giving effect to such transaction) a Subsidiary of the
Company if such sale, disposition or other transfer is made in
compliance with the applicable provisions of this Indenture;
(2) upon the release or discharge of the guarantee by such Guarantor of
Indebtedness of K&F which resulted in the obligation to guarantee the
Notes;
(3) in connection with the Legal Defeasance of the Notes and the
Subsidiary Guarantees; or
(4) if the Company designates any Restricted Subsidiary that is a
Guarantor as an Unrestricted Subsidiary in accordance with the
applicable provisions of this Indenture.
ARTICLE 11
SATISFACTION AND DISCHARGE
SECTION 11.01. SATISFACTION AND DISCHARGE
This Indenture shall be discharged and will cease to be of
further effect as to all Notes and Subsidiary Guarantees issued hereunder,
except as to surviving rights of registration of transfer or exchange of the
Notes, when:
(a) either:
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(i) all Notes that have been previously authenticated
(except lost, stolen or destroyed Notes that have been replaced or paid
and Notes for whose payment money has previously been deposited in
trust or segregated and held in trust by the Company and is thereafter
repaid to the Company or discharged from the trust) have been delivered
to the Trustee for cancellation; or
(ii) all Notes that have not been previously
delivered to the Trustee for cancellation (A) have become due and
payable or (B) will become due and payable at their maturity within one
year or (C) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of a notice of
redemption by the Trustee, and the Company or any Guarantor has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust solely for the benefit of the Holders, cash in
U.S. dollars, non-callable 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 previously delivered to the Trustee for
cancellation for principal, premium, if any, and interest and
Additional Interest, if any, on the Notes to the date of deposit, in
the case of Notes that have become due and payable, or to the Stated
Maturity or redemption date, as the case may be;
(b) the Company or any Guarantor has paid or caused to be paid
all other sums payable by it under this Indenture;
(c) no Default or Event of Default has occurred and is
continuing on the date of such deposit or shall occur as a result of such
deposit and such deposit shall not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company is a party
or by which the Company or any Guarantor is bound; and
(d) the Company has delivered irrevocable instructions to the
Trustee under this Indenture 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 Company must deliver an Officers' Certificate
and an Opinion of Counsel to the Trustee stating that all conditions precedent
under this Indenture relating to the satisfaction and discharge of this
Indenture have been satisfied.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 7.07 and,
if money shall have been deposited with the Trustee pursuant to subclause (C) of
Clause (ii) of this Section, the obligations of the Trustee under Section 11.02
shall survive.
SECTION 11.02. APPLICATION OF TRUST FUNDS
Subject to Section 11.03 hereof, all cash and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee pursuant to Section 11.01 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, and interest and
Additional Interest, if any, but such cash and securities need not be segregated
from other funds except to the extent required by law.
SECTION 11.03. REPAYMENT TO COMPANY
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Any cash or non-callable Government Securities deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of, premium, if any, or interest or Additional
Interest, if any, on, any Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest or Additional Interest, if any, has
become due and payable shall be paid to the Company on its request or (if then
held by the Company) shall be discharged from such trust; and the Holder shall
thereafter, as an unsecured creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such cash and securities, and all liability of the Company as trustee thereof,
shall thereupon cease; provided that the Trustee or such Paying Agent, before
being required to make any such repayment, may at the expense of the Company
cause to be published once, in The New York Times and The Wall Street Journal
(national edition), notice that such cash and securities remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such notification or publication, any unclaimed balance of such cash
and securities then remaining will be repaid to the Company.
SECTION 11.04. REINSTATEMENT
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Securities in accordance with Sections
11.01 and 11.02, as the case may be, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's and any Guarantor's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Sections 11.01 and 11.02 hereof until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Sections 11.01 and 11.02 hereof, as the case may be; provided that, if the
Company makes any payment of principal of, premium on, if any, or interest or
Additional Interest, if any, on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE 12
SUBORDINATION
SECTION 12.01. AGREEMENT TO SUBORDINATE
The Company agrees, and each Holder by accepting a Note
agrees, that the payment of principal, interest and premium and Additional
Interest, if any, and interest on, and other Obligations evidenced by, the Notes
is subordinated in right of payment, to the extent and in the manner provided in
this Article 12, to the prior payment in full of all Senior Debt (whether
outstanding on the date hereof or hereafter incurred) of the Company, and that
the subordination is for the benefit of the holders of Senior Debt.
SECTION 12.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY
Upon any distribution to creditors of the Company in a
liquidation or dissolution of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
property, an assignment for the benefit of creditors or any marshalling of the
Company's assets and liabilities:
(1) holders of Senior Debt shall be entitled to
receive payment in full in cash (or U.S. dollar-denominated
Cash Equivalents) of all Obligations due in respect of such
Senior Debt (including interest after the commencement of any
such proceeding at the
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rate specified in the applicable Senior Debt) before the
Holders of Notes shall be entitled to receive any payment of
any kind or character with respect to the Notes; and
(2) until all Obligations with respect to Senior Debt
are paid in full in cash (or U.S. dollar-denominated Cash
Equivalents), any distribution to which the Holders of Notes
would be entitled but for this Article 12 shall be made to the
holders of such Senior Debt.
Notwithstanding the foregoing, Holders of Notes may receive
and retain (i) Permitted Junior Securities and (ii) payments made from the
trusts described in Article 8 hereof.
SECTION 12.03. DEFAULT ON DESIGNATED SENIOR DEBT
The Company may not redeem or make any payment of any kind or
character upon or in respect of the Notes (other than in (1) Permitted Junior
Securities and (2) payments made from the trusts described in Article 8 hereof)
if:
(i) a default in the payment of the principal of,
premium, if any, or interest on, or fees or any other amount
payable with respect to, any Designated Senior Debt occurs and
is continuing beyond any applicable grace period; or
(ii) any other default occurs and is continuing with
respect to Designated Senior Debt that permits holders of the
Designated Senior Debt as to which such default relates to
accelerate its maturity (or that would permit such holders to
accelerate with the giving of notice or passage of time or
both) and the Trustee receives a notice of such default (a
"Payment Blockage Notice") from the Company or the holders of
such Designated Senior Debt.
Payments or distributions on the Notes or redemption of the
Notes may and shall be resumed:
(a) in the case of default referred to in Section 12.03(i),
upon the date on which such default is cured or waived, and
(b) in case of a default referred to in Section 12.03(ii),
upon the earlier of (i) the date on which such default is cured or
waived or (ii) 179 days after the date on which the applicable Payment
Blockage Notice is received by the Trustee (unless the maturity of any
Designated Senior Debt has been accelerated or unless the provisions of
this Article 12 otherwise do not permit such payment).
No new Payment Blockage Notice may be delivered unless and
until (a) 360 days have elapsed since the delivery of the immediately prior
Payment Blockage Notice and (2) all scheduled payments of principal of, premium
and Additional Interest, if any, and interest on the Notes that have come due
have been paid in full in cash. No nonpayment default that existed or was
continuing on the date of receipt by the Trustee of any Payment Blockage Notice
shall be, or be made, the basis for a subsequent Payment Blockage Notice unless
such default has been cured or waived for a period of not less than 90
consecutive days. Following the expiration of any period during which the
Company is prohibited from making payments on the Notes pursuant to a Payment
Blockage Notice, the Company will be obligated to resume making any and all
required payments in respect of the Notes, including without limitation any
missed payments.
SECTION 12.04. ACCELERATION OF NOTES
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The Company shall promptly notify holders of Designated Senior
Debt if payment of the Notes is accelerated because of an Event of Default.
SECTION 12.05. WHEN DISTRIBUTION MUST BE PAID OVER
In the event that the Trustee or any Holder receives any
payment of any Obligations with respect to the Notes (other than in (1)
Permitted Junior Securities and (2) payments made from the trusts described in
Article 8 hereof) at a time when the Trustee or such Holder, as applicable, has
actual knowledge that such payment is prohibited by Section 12.03 hereof, such
payment shall be held by the Trustee or such Holder, in trust for the benefit of
and, upon written request, shall be paid forthwith over and delivered to, the
holders of Senior Debt as their interests may appear or their Representative
under the indenture or other agreement (if any) pursuant to which Senior Debt
may have been issued, as their respective interests may appear, for application
to the payment of all Obligations with respect to Senior Debt remaining unpaid
to the extent necessary to pay such Obligations in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article 12, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt, and shall not be liable to any
such holders if the Trustee shall pay over or distribute to or on behalf of
Holders or the Company or any other Person money or assets to which any holders
of Senior Debt shall be entitled by virtue of this Article 12, except if such
payment is made as a result of the willful misconduct or gross negligence of the
Trustee.
SECTION 12.06. NOTICE BY THE COMPANY
The Company shall promptly notify the Trustee and the Paying
Agent of any facts known to the Company that would cause a payment of any
Obligations with respect to the Notes to violate this Article 12, but failure to
give such notice shall not affect the subordination of the Notes to the Senior
Debt as provided in this Article.
SECTION 12.07. SUBROGATION
After all Senior Debt is irrevocably paid in full in cash or
U.S. dollar-denominated Cash Equivalents reasonably satisfactory to the holders
thereof and until the Notes are paid in full, Holders shall be subrogated
(equally and ratably with all other Indebtedness pari passu with the Notes) to
the rights of holders of Senior Debt to receive distributions applicable to
Senior Debt to the extent that distributions otherwise payable to the Holders
have been applied to the payment of Senior Debt. A distribution made under this
Article to holders of Senior Debt that otherwise would have been made to Holders
is not, as between the Company and Holders, a payment by the Company on the
Notes.
SECTION 12.08. RELATIVE RIGHTS
This Article defines the relative rights of Holders and
holders of Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the obligation
of the Company, which is absolute and unconditional, to pay principal
of and interest on the Notes in accordance with their terms;
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(2) affect the relative rights of Holders and other creditors
of the Company other than their rights in relation to holders of Senior
Debt; or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders and owners of Senior Debt to receive distributions
and payments otherwise payable to Holders.
If the Company fails because of this Article 12 to pay
principal of or interest on a Note on the due date, the failure is still a
Default or Event of Default.
SECTION 12.09. SUBORDINATION MAY NOT BE IMPAIRED BY THE COMPANY
No right of any holder of Senior Debt to enforce the
subordination of the Indebtedness evidenced by the Notes shall be impaired by
any act or failure to act by the Company or any Holder or by the failure of the
Company or any Holder to comply with this Indenture.
SECTION 12.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE
Whenever a distribution is to be made or a notice given to
holders of Senior Debt, the distribution may be made and the notice given to
their Representative.
Upon any payment or distribution of assets of the Company
referred to in this Article 12, the Trustee and the Holders shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction or
upon any certificate of such Representative or of the liquidating trustee or
agent or other Person making any distribution to the Trustee or to the Holders
for the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of Senior Debt and other Indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article 12.
SECTION 12.11. RIGHTS OF TRUSTEE AND PAYING AGENT
Notwithstanding the provisions of this Article 12 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee shall have received at its
Corporate Trust Office at least five Business Days prior to the date of such
payment written notice of facts that would cause the payment of any Obligations
with respect to the Notes to violate this Article. Only the Company or a
Representative may give the notice. Nothing in this Article 12 shall impair the
claims of, or payments to, the Trustee under or pursuant to Section 7.7 hereof.
The Trustee shall be entitled to rely on the delivery to it of
a written notice by a Person representing himself to be a holder of Senior Debt
(or a Representative of such holder) to establish that such notice has been
given by a holder of Senior Debt (or a Representative of any such holder). In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior Debt to
participate in any payment or distribution pursuant to this Article 12, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such Person,
the extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person under
this Article 12, and if such evidence is not furnished, the Trustee may defer
any payment which it may be required to make for the benefit of such Person
pursuant to the terms of this Indenture pending judicial determination as to the
rights of such Person to receive such payment.
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The Trustee in its individual or any other capacity may hold
Senior Debt with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights.
SECTION 12.12. AUTHORIZATION TO EFFECT SUBORDINATION
Each Holder of a Note by the Holder's acceptance thereof
authorizes and directs the Trustee on the Holder's behalf to take such action as
may be necessary or appropriate to effectuate the subordination as provided in
this Article 12, and appoints the Trustee to act as the Holder's
attorney-in-fact for any and all such purposes.
SECTION 12.13. SUBORDINATION OF SUBSIDIARY GUARANTEES
The Obligations of each Guarantor under its Subsidiary
Guarantee are subordinated in right of payment to the Obligations of each
Guarantor under its Senior Debt in the same manner and to the same extent that
the Notes are subordinated to Senior Debt of the Company pursuant to this
Article 12.
ARTICLE 13
MISCELLANEOUS
SECTION 13.01. TRUST INDENTURE ACT CONTROLS
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act which is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act which may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.
SECTION 13.02. NOTICES
Any notice or communication by the Company, any Guarantor or
the Trustee shall be in writing (which may be a facsimile, receipt confirmed)
and delivered in person or mailed by first class mail addressed as follows:
If to the Company or any Guarantor (prior to the
Merger):
K&F Acquisition, Inc.
c/o Aurora Capital Group
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
If to the Company or any Guarantor (after the
Merger):
K&F Industries, Inc.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
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With a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
If to the Trustee:
U.S. Bank National Association
Xxxxxxx Square
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust/X. Xxxxx
Facsimile: (000) 000-0000
Re: K&F Acquisition, Inc.
The Company, any Guarantor or the Trustee, by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders) shall be in writing and shall be deemed to have been duly given when
received.
Any notice or communication to a Holder shall be mailed by
first class mail to its address shown on the register kept by the Registrar. Any
notice or communication shall also be so mailed to any Person described in TIA
Section 313(c), to the extent required by the TIA. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
SECTION 13.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
SECTION 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(a) an Officers' Certificate (which shall include the
statements set forth in Section 13.05 hereof) stating that, in the
opinion of the signers, all conditions precedent (including any
covenants compliance with which constitutes a condition precedent)
provided for in this Indenture relating to the proposed action have
been satisfied; and
(b) an Opinion of Counsel (which shall include the statements
set forth in Section 13.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent (including any covenants
compliance with which constitutes a condition precedent) have been
satisfied.
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In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such eligible and qualified Persons as to other matters, and any
such Person may certify or given an opinion as to such matters in one or several
documents.
Any certificate or opinion of an Officer of the Company may be
based, insofar as it related to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such Officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any certificate or opinion of counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating the information on which
counsel is relying unless such counsel knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations with
respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 13.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:
(a) a statement that the person(s) 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 or they have made such examination or investigation as is necessary
to enable such person or persons to express an informed opinion as to
whether or not such covenant or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such
persons, such condition or covenant has been satisfied.
SECTION 13.06. RULES BY TRUSTEE AND AGENTS
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
SECTION 13.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS
No director, officer, employee, incorporator, Affiliate or
stockholder of the Company or any Guarantor, as such, shall have any liability
for any obligations of the Company or the Guarantors under the Notes, this
Indenture, the Subsidiary Guarantees or the Registration Rights Agreement, or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of a Note by accepting such Note waives and releases
all such liability. The waiver and release are part of the
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consideration for issuance of the Notes. The wavier may not be effective to
waive liabilities under the federal securities laws
SECTION 13.08. GOVERNING LAW
THIS INDENTURE, THE Subsidiary GUARANTEES AND THE NOTES SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 13.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 13.10. SUCCESSORS
All agreements of the Company 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 will
bind its successors, except as otherwise provided in Section 10.05.
SECTION 13.11. 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
to the extent permitted by applicable law.
SECTION 13.12. 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 13.13. 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.
SECTION 13.14. BENEFITS OF INDENTURE
Nothing in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Debt and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture, except as may
otherwise be provided pursuant to this Indenture with respect to such Notes.
SECTION 13.15. LEGAL HOLIDAYS
In any case where any interest payment date, redemption date
or maturity of any Note, or any date on which a Holder has the right to convert
his Note, shall not be a Business Day at any place of payment, then
(notwithstanding any other provision of this Indenture or of the Notes (other
than a provision of any Note which specifically states that such provision shall
apply in lieu of this Section)) payment of interest or principal (and premium,
if any), or conversion of such Note need not be made at
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such place of payment on such date, but may be made on the next succeeding
Business Day at such place of payment with the same force and effect as if made
on the interest payment date or redemption date, or at the maturity, or on such
date for conversion, as the case may be.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have executed this
Indenture this 18th of November 2004.
K&F ACQUISITION, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Secretary
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ Cauna X. Xxxxx
--------------------------------------
Name: Cauna X. Xxxxx
Title: Vice President
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EXHIBIT A
[Insert the Global Note Legend, if applicable, pursuant to the provisions of the
Indenture]
[Insert the Private Placement Legend, if applicable, pursuant to the provisions
of the Indenture]
[Insert the Regulation S Legend, if applicable, pursuant to the provisions of
the Indenture]
CUSIP No.
ISIN No.
[Face of Note]
7-3/4% Senior Subordinated Notes due 2014
Principal amount at Maturity $ ______
K&F Acquisition, Inc.
K&F Acquisition, Inc., a Delaware corporation (the "Company") promises to pay to
______________, or registered assigns, the principal sum of _____________
Dollars on _____________, 20[__] [or such greater or lesser amount as may be
indicated on Schedule A hereto](1).
Interest Payment Dates: May 15 and November 15, commencing __________, ___
Record Dates: May 1 and November 1
Additional provisions of this Note are set forth on the other side of this Note.
----------------------
(1) If this Note is a Global Note, include this provision.
A-1
Dated:
K&F ACQUISITION, INC.
By:______________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the [Global] Notes
referred to in the within-mentioned
Indenture:
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:_________________________________
Authorized Signatory
A-2
[FORM OF REVERSE OF NOTES]
7-3/4% Senior Subordinated Notes due 2014
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
(1) Interest. K&F Acquisition, Inc., a Delaware corporation
(together with its permitted successors, the "Company"), promises to pay
interest on the principal amount of this Note at 7-3/4% per annum from November
18, 2004 until maturity and shall pay the Additional Interest, if any, payable
pursuant to Section 5 of the Registration Rights Agreement. The Company shall
pay interest and Additional Interest, if any, semi-annually in arrears on May 15
and November 15 of each such year, commencing May 15, 2005 or if any such day is
not a Business Day, on the next succeeding Business Day (each an "Interest
Payment Date"). Interest on the Notes shall accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
issuance[; provided that if this Note is authenticated between a record date
referred to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such next succeeding Interest Payment Date; provided,
further, that the first Interest Payment Date shall be the first of May 15 or
November 15 to occur after the date of issuance, unless such May 15 or November
15 occurs within one calendar month of such date of issuance, in which case the
first Interest Payment Date shall be the second of May 15 or November 15 to
occur after the date of issuance](2). Interest shall be computed on the basis of
a 360-day year of twelve 30-day months.
(2) Method of Payment. The Company shall pay interest on the
Notes (except defaulted interest) and Additional Interest, if any, to the
Persons in whose name(s) this Note (or one or more Predecessor Notes) who are
registered Holders of Notes at the close of business on the May 1 or November 1
next preceding the Interest Payment Date (each, a "Record Date"), even if such
Notes are canceled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.13 of the Indenture with respect to
defaulted interest. The Notes shall be payable as to principal of or premium, if
any, Additional Interest, if any, or interest at the office or agency of the
Company maintained for such purpose within or without the City and State of New
York, or, at the option of the Company, payment of interest and Additional
Interest, if any, may be made by check mailed to the Holders at their addresses
set forth in the register of Holders, and provided that payment by wire transfer
of immediately available funds shall be required with respect to principal of or
premium, if any, Additional Interest, if any, or interest on, the Global Notes
and all other Notes the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent prior to the applicable Record
Date. Such payment shall be in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts.
(3) Paying Agent and Registrar. Initially, U.S. Bank National
Association, the Trustee under the Indenture, shall act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
(4) Indenture. The Company issued the Notes under an
Indenture, dated as of November 18, 2004 ("Indenture"), between the Company and
the Trustee. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act
-------------------------
(2) Insert if Notes are Additional Notes.
A-3
of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb). The Notes are subject
to all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. To the extent any provision of this Note conflicts with
the express provisions of the Indenture, the provisions of the Indenture shall
govern and be controlling. The Notes are obligations of the Company initially in
the aggregate principal amount of $315,000,000. Subject to compliance with
Section 2.15 of the Indenture, the Company is permitted to issue Additional
Notes under the Indenture in an unlimited principal amount. Any such Additional
Notes that are actually issued shall be treated as issued and outstanding Notes
(and as the same class as the Initial Notes) for all purposes of the Indenture,
unless the context clearly indicated otherwise.
(5) Subordination. The Notes are subordinated in right of
payment, in the manner and to the extent set forth in the Indenture. Each Holder
by his acceptance hereof agrees to be bound by such provisions and authorizes
and expressly directs the Trustee, on his behalf, to take such action as may be
necessary or appropriate to effectuate the subordination provided for in the
Indenture and appoints the Trustee his attorney-in-fact for such purposes.
(6) Guarantees. This Note is guaranteed by the Persons, if
any, specified as Guarantors in the Indenture to the extent provided in the
Indenture. The Subsidiary Guarantees are subordinated to the Senior Debt of the
applicable Guarantor in the manner and to the extent provided in the Indenture.
Each Holder by his acceptance hereof agrees to be bound by such provisions and
authorizes and expressly directs the Trustee, on his behalf, to take such action
as may be necessary or appropriate to effectuate the subordination provided for
in the Indenture and appoints the Trustee his attorney-in-fact for such
purposes.
(7) Optional Redemption.
(a) Except as set forth in clause (b) of this Paragraph 7, the
Company shall not have the option to redeem the Notes pursuant to Section 3.07
of the Indenture prior to November 15, 2009. Thereafter, the Company shall have
the option to redeem the Notes, in whole or in part, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and
unpaid interest and Additional Interest thereon, if any, to the applicable
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), if
redeemed during the twelve-month period beginning on November 15 of the years
indicated below:
YEAR Percentage
---- ----------
2009..................................................................... 103.875%
2010..................................................................... 102.583%
2011..................................................................... 101.292%
2012 and thereafter...................................................... 100.000%
(b) Notwithstanding the provisions of clause (a) of this
Paragraph 7, at any time prior to November 15, 2007, the Company may on any one
or more occasions redeem up to 35% of the aggregate principal amount of Notes
issued under the Indenture (including any Additional Notes) at a redemption
price equal to 107.750% of the principal amount thereof on the redemption date,
plus accrued and unpaid Additional Interest, if any, to the redemption date,
with the net cash proceeds of one or more Equity Offerings by the Company;
provided that (1) at least 65% of the aggregate principal amount of Notes
(including any Additional Notes) issued under this Indenture remains outstanding
immediately after the occurrence of such redemption (excluding Notes held by the
Company and its Subsidiaries); and (2) that such redemption shall occur within
90 days of the date of the closing of such offering.
A-4
(c) On and after the redemption date interest ceases to accrue
on Notes or portions thereof called for redemption.
(8) Special Mandatory Redemption. Notwithstanding the
foregoing, in the event that the Acquisition is not consummated on or prior to
December 27, 2004 or if the Acquisition Agreement is terminated prior to such
time, the Company shall redeem (the "Special Redemption") the Notes, in whole
but not in part, on or prior to December 28, 2004, at a redemption price (the
"Special Redemption Price") in cash equal to 100.0% of the principal amount of
the Notes plus accrued and unpaid interest on the Special Redemption Date. The
"Special Redemption Date" means the earlier of the date specified by the Company
in an Officers' Certificate delivered in accordance with the Escrow Agreement
and December 28, 2004. The Trustee shall deliver to each Holder a written notice
(specifying the information specified in Section 3.03) of the Special Redemption
one Business Day prior to the Special Redemption Date.
(9) Repurchase at Option of Holder.
(a) Upon the occurrence of a Change of Control, each Holder of
Notes shall have the right to require the Company to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of such Holder's Notes
pursuant to the offer described below (the "Change of Control Offer") at an
offer price in cash equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Additional Interest, if any, thereon to the date
of purchase (the "Change of Control Payment"). Within 30 days following any
Change of Control, the Company shall mail a notice to each Holder setting forth
the procedures governing the Change of Control Offer as required by the
Indenture.
(b) If the Company or a Restricted Subsidiary consummates any
Asset Sales, when the aggregate amount of Excess Proceeds exceeds $10 million,
the Company or the applicable Restricted Subsidiary shall commence an offer to
all Holders pursuant to Section 4.10 of the Indenture to purchase the maximum
principal amount of Notes (an "Asset Sale Offer") to all Holders of Notes and
all holders of such other Indebtedness of the Company that is pari passu with
the Notes containing provisions similar to those set forth in the Indenture with
respect to offers to purchase or redeem with the proceeds of sales of assets
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 and Additional Interest, if any, thereon to the date of purchase, in
accordance with the procedures set forth in the Indenture. To the extent that
any Excess Proceeds remain after consummation of an Asset Sale Offer, the
Company may use such Excess Proceeds for any purpose not otherwise prohibited by
the Indenture. If the aggregate principal amount of Notes and other pari passu
Indebtedness tendered in such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Excess Proceeds will be allocated by the Company to the Notes and
such other pari passu Indebtedness on a pro rata basis (based upon the
respective principal amounts (or accreted value, if applicable) of the Notes and
such other pari passu Indebtedness tendered into such Asset Sale Offer) and the
portion of each Note to be purchased will thereafter be determined by the
Trustee on a pro rata basis among the Holders of such Notes with appropriate
adjustments such that the Notes may only be purchased in integral multiples of
$1,000. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds
shall be reset to zero. Holders of Notes that are the subject of an offer to
purchase shall receive an Asset Sale Offer from the Company prior to any related
purchase date and may elect to have such Notes purchased by completing the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Notes.
(10) Notice of Redemption. Except as provided in paragraph
(8), notice of redemption shall be mailed at least 30 days but not more than 60
days before the redemption date to each Holder whose Notes are to be redeemed at
its registered address. Notes in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000, unless all of the Notes
held by a Holder are to
A-5
be redeemed on the basis of the aggregate principal amount (or accreted value,
as applicable) of Notes and other pari passu Indebtedness tendered.
(11) Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in minimum denominations of $2,000 and integral
multiples of $1,000 in excess thereof. The transfer of Notes may be registered
and Notes may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture. The Company
need not exchange or register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed portion of any Note being
redeemed in part. Also, the Company need not exchange or register the transfer
of any Notes for a period of 15 days before a selection of Notes to be redeemed
or during the period between a record date and the corresponding Interest
Payment Date. No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
(12) Persons Deemed Owners. The registered Holder of a Note
may be treated as its owner for all purposes.
(13) Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture, the Subsidiary Guarantees or the Notes may be amended
or supplemented with the consent of the Holders of at least a majority in
principal amount of the then outstanding Notes voting as a single class, and any
existing default or compliance with any provision of the Indenture, the
Subsidiary Guarantees or the Notes (other than a Default or Event of Default in
the payment of the principal of or premium, if any, Additional Interest, if any,
or interest on the Notes) or compliance with any provision of the Indenture or
the Notes may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes voting as a single class. Without
the consent of any Holder of a Note, the Indenture or the Notes may be amended
or supplemented to cure any ambiguity, defect or inconsistency; provide for
uncertificated Notes in addition to or in place of certificated Notes (provided
that the uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code, or in a manner such that the uncertificated Notes
are described in Section 163(f)(2)(B) of the Code); provide for the assumption
of the Company's obligations to Holders of Notes in the case of a merger or
consolidation or sale of all or substantially all of the Company's assets; make
any change that would provide any additional rights or benefits to the Holders
of Notes or that does not adversely affect the rights under the Indenture of any
such Holder; provide for the issuance of Additional Notes in accordance with the
provisions set forth in this Indenture; evidence and provide for the acceptance
of an appointment of a successor trustee; conform this Indenture or the Notes to
the "Description of Notes" set forth in the Offering Memorandum; add Subsidiary
Guarantees with respect to the Notes; or comply with requirements of the
Commission in order to effect or maintain the qualification of the indenture
under the TIA.
(14) Events of Default. Events of Default include (1) default
for 30 days in the payment when due of interest on, or Additional Interest with
respect to, the Notes, whether or not prohibited by the subordination provisions
of the Indenture; (2) default in payment when due of the principal of, or
premium, if any, on the Notes, whether or not prohibited by the subordination
provisions of the Indenture; (3) failure by the Company to comply with any of
the provisions of Section 5.01 of the Indenture; (4) failure by the Company or
any of its Restricted Subsidiaries to purchase Notes tendered pursuant to an
offer required by Section 4.10 or Section 4.15 of the Indenture; (5) failure by
the Company or any of its Restricted Subsidiaries for 60 days after notice to
comply with any of the other agreements in the Indenture; (6) default under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness for money borrowed of the
Company or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its
A-6
Restricted Subsidiaries) whether such Indebtedness or guarantee now exists, or
is created after the date of this Indenture, if that default: (a) is caused by a
failure to pay at the final Stated Maturity the principal amount of such
Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment Default"); or (b) results
in the acceleration of such Indebtedness prior to its Stated Maturity, and, in
each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates
$15.0 million or more; (7) failure by the Company or any of its Subsidiaries to
pay final judgments (not subject to appeal) aggregating in excess of $15.0
million, which judgments are not paid, discharged or stayed within a period of
60 days after the date on which the right to appeal has expired; (8) except as
permitted by the Indenture, any Subsidiary Guarantee shall be held in any
judicial proceeding to be unenforceable or invalid or shall cease for any reason
to be in full force and effect or any Guarantor, or any Person acting on behalf
of any Guarantor, shall deny or disaffirm its obligations under its Subsidiary
Guarantee; and (9) certain events of bankruptcy or insolvency with respect to
the Company or any of its Significant Subsidiaries or any group of Restricted
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary.
If any Event of Default (other than an Event of Default specified in clause (9)
of this Section 14) occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the then outstanding Notes may declare all the
Notes to be due and payable immediately. Notwithstanding the foregoing, in the
case of an Event of Default arising from certain events of bankruptcy or
insolvency as specified in clause (9) of this Section 14, all outstanding Notes
shall become due and payable immediately without further action or notice.
Holders may not enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Notes may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of the Notes notice of
any continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest. The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Notes waive any existing Default or Event of
Default and its consequences under the Indenture, except a continuing Default or
Event of Default in the payment of interest or Additional Interest on, or the
principal of, the Notes. The Company is required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and the Company is
required upon becoming aware of any Event of Default, to deliver to the Trustee
a statement specifying such Event of Default.
(15) Trustee Dealings with Company. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not the Trustee.
(16) No Recourse Against Others. No director, officer,
employee, incorporator, Affiliate or stockholder of the Company or any of the
Guarantors, as such, will have any liability for any obligations of the Company
or such Guarantor under the Notes, the Indenture, the Subsidiary Guarantee, the
Registration Rights Agreement or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of Notes by accepting
a Note waives and releases all such liability. The waiver and release are part
of the consideration for the issuance of the Notes.
(17) Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an Authenticating Agent.
(18) Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with rights of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
A-7
(19) Registration Rights Agreement. In addition to the rights
provided to Holders of Notes under the Indenture, Holders of Restricted Global
Notes and Restricted Definitive Notes shall have all the rights set forth in the
Registration Rights Agreement dated as of November 18, 2004 between the Company
and the Initial Purchasers.
(20) CUSIP, ISIN or Other Similar Numbers. Pursuant to a
recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP, ISIN or other similar numbers to be
printed on the Notes and the Trustee may use CUSIP, ISIN or other similar
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
(21) Governing Law. This Note shall be governed by and
construed in accordance with the laws of the State of New York.
A-8
ASSIGNMENT FORM
To assign this Note, fill in the form below and have your signature
guaranteed: (I) or (we) assign and transfer this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint________________________________________________ agent to
transfer this Note on the books of the Company. The agent may substitute another
to act for him.
________________________________________________________________________________
Date:______________________ Your Name:______________________________________
(Print your name exactly as it appears on
the face of this Note)
Your Signature:_________________________________
(Sign exactly as your name appears on the
face of this Note)
Signature Guarantee*:___________________________
----------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
A-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.15 of the Indenture, check the box below:
[_] Section 4.10 [_] Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased:
$_________________
Date:_____________ Your Signature:_________________________________
(Sign exactly as your name appears on the
face of this Note)
Tax Identification No:__________________________
Signature Guarantee*:
_____________________________________
(*Participant in a Recognized
Signature Guarantee Medallion Program)
A-10
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE(3)
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Principal Amount of
this Global Note Signature of
Amount of decrease Amount of increase in following such authorized officer
in Principal Amount Principal Amount of decrease (or of Trustee or
Date of Exchange of this Global Note this Global Note increase) Note Custodian
---------------- ------------------- ---------------- --------- --------------
--------------------------
(3) If this Note is a Global Note, include this schedule.
A-11
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
[Prior to the Merger:
K&F Acquisition, Inc.
c/o Aurora Capital Group
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000]
[After the Merger:
K&F Industries, Inc.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000]
U.S. Bank National Association
Xxxxxxx Square
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Division
Re: 7-3/4% Senior Subordinated Notes due 2014
Reference is hereby made to the Indenture, dated as of
November 18, 2004 (the "Indenture"), between K&F Acquisition, Inc., as issuer
(the "Company"), and U.S. Bank National Association, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
________, (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount at maturity of $____ in such Note[s] or interests (the
"Transfer"), to _____________ (the "Transferee"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
1. [_] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
B-1
2. [_] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
REGULATION S TEMPORARY GLOBAL NOTE, THE REGULATION S GLOBAL NOTE OR A DEFINITIVE
NOTE PURSUANT TO REGULATION S. The Transfer is being effected pursuant to and in
accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly,
the Transferor hereby further certifies that (i) the Transfer is not being made
to a person in the United States and (x) at the time the buy order was
originated, the Transferee was outside the United States or such Transferor and
any Person acting on its behalf reasonably believed and believes that the
Transferee was outside the United States or (y) the transaction was executed in,
on or through the facilities of a designated offshore securities market and
neither such Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States, (ii) no directed
selling efforts have been made in contravention of the requirements of Rule
903(b) or Rule 904(b) of Regulation S under the Securities Act (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Distribution Compliance Period, the transfer
is not being made to a U.S. Person or for the account or benefit of a U.S.
Person (other than an Initial Purchaser). Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on
Transfer enumerated in the Private Placement Legend printed on the Regulation S
Global Note, the Temporary Regulation S Global Note and/or the Definitive Note
and in the Indenture and the Securities Act.
3. [_] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN AN IAI GLOBAL NOTE, AN AI DEFINITIVE NOTE OR A DEFINITIVE NOTE
PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR
REGULATION S. The Transfer is being effected in compliance with the transfer
restrictions applicable to beneficial interests in Restricted Global Notes and
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) [_] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) [_] such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) [_] such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in compliance with
the prospectus delivery requirements of the Securities Act.
or
(d) [_] such Transfer is being effected to an Accredited
Investor or an Institutional Accredited Investor and pursuant to an exemption
from the registration requirements of the Securities Act other than Rule 144A,
Rule 144 or Rule 904, and the Transferor hereby further certifies that it has
not engaged in any general solicitation within the meaning of Regulation D under
the Securities Act and the Transfer complies with the transfer restrictions
applicable to beneficial interests in a Restricted Global Note or Restricted
Definitive Notes and the requirements of the exemption claimed, which
certification is supported by (1) a certificate executed by the Transferee in
the form of Exhibit D to the Indenture and (2) an Opinion of Counsel provided by
the Transferor or the Transferee (a copy of which the Transferor has
B-2
attached to this certification), to the effect that such Transfer is in
compliance with the Securities Act. Upon consummation of the proposed transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the IAI Global Note and/or
the AI Definitive Note and in the Indenture and the Securities Act.
4. [_] Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) [_] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) [_] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) [_] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i)
The Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule 144,
Rule 903 or Rule 904 and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
____________________________________________
[Insert Name of Transferor]
By:_________________________________________
Name:
Title:
Dated: _________, __
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Note (CUSIP _______); or
(ii) [_] Regulation S Global Note (CUSIP ______); or
(iii) [_] IAI Global Note (CUSIP ______); or
(b) [_] an AI Definitive Note; or
(c) [_] a Restricted Definitive Note; or
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Note (CUSIP ); or
(ii) [_] Regulation S Global Note (CUSIP ); or
(iii) [_] IAI Global Note (CUSIP ______); or
(iv) [_] Unrestricted Global Note (CUSIP ); or
(b) [_] an AI Definitive Note; or
(c) [_] a Restricted Definitive Note; or
(d) [_] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
[Prior to the Merger:
K&F Acquisition, Inc.
c/o Aurora Capital Group
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000]
[After the Merger:
K&F Industries, Inc.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000]
U.S. Bank National Association
Xxxxxxx Square
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Division
Re: 7-3/4% Senior Subordinated Notes due 2014
(CUSIP _________)
Reference is hereby made to the Indenture, dated as of
November 18, 2004 (the "Indenture"), between K&F Acquisition, Inc., as issuer
(the "Company") and U.S. Bank National Association, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
_______, (the "Owner") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount of
$______ in such Note[s] or interests (the "Exchange"). In connection with the
Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN AN UNRESTRICTED GLOBAL NOTE
(a) [_] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "Securities Act"), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial
C-1
interest in an Unrestricted Global Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(b) [_] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(c) [_] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) [_] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED
GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES
(a) [_] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) [_] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner's Restricted Definitive Note for a beneficial interest in
the [CHECK ONE] 144A Global Note, Regulation S Global Note, IAI Global Note,
with an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer and (ii)
such
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Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial interest
issued will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
____________________________________
[Insert Name of Transferor]
By:_________________________________
Name:
Title:
Dated: _________, ____
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EXHIBIT D
FORM OF CERTIFICATE FROM
ACCREDITED INVESTOR/INSTITUTIONAL ACCREDITED INVESTOR
[Prior to the Merger:
K&F Acquisition, Inc.
c/o Aurora Capital Group
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000]
[After the Merger:
K&F Industries, Inc.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn:
Fax: (212)]
U.S. Bank National Association
Xxxxxxx Square
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Division
Re: 7-3/4% Senior Subordinated Notes due 2014
(CUSIP _________)
Reference is hereby made to the Indenture, dated as of
November 18, 2004 (the "Indenture"), between K&F Acquisition, Inc., as issuer
(the "Company") and U.S. Bank National Association, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
In connection with my proposed purchase of $________ aggregate
principal amount of an 7-3/4% Senior Subordinated Notes due 2014 (the "Notes"),
I hereby confirm that:
1. I am an "accredited investor" (as defined in 501(a)(1), (2), (3),
(4), (5), (6) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")) and have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of my
investment in the Notes, and I and any accounts for which I am acting are each
able to bear the economic risk of my or its investment.
2. I am acquiring the Notes or beneficial interest therein for my own
account or for one or more accounts (each of which is an "accredited investor")
as to each of which I exercise sole investment discretion.
3. I understand that any subsequent transfer of the Notes, or any
interest therein is subject to certain restrictions and conditions set forth in
the Notes and the Indenture and the undersigned agrees to
D-1
be bound by, and not to resell, pledge or otherwise transfer the Notes or any
interest therein except in compliance with, such restrictions and conditions and
the Securities Act of 1933, as amended (the "Securities Act").
4. I understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. I
agree, on my own behalf and on behalf of any accounts for which I am acting,
that if I should sell the Notes or any interest therein, I will do so only (a)
to the Company, (b) pursuant to a registration statement which has been declared
effective under the Securities Act, (c) for so long as the Notes are eligible
for resale pursuant to Rule 144A, to a "Qualified Institutional Buyer" as
defined in Rule 144A under the Securities Act that purchases for its own account
or for the account of a Qualified Institutional Buyer to whom notice is given
that the transfer is being made in reliance on Rule 144A inside the United
States, (d) pursuant to offers and sales to non-U.S. persons that occur outside
the United States within the meaning of Regulation S under the Securities Act or
(e) pursuant to any other available exemption from the registration requirements
of the Securities Act, and I further agree to provide to any person purchasing a
Note from me in a transaction meeting the requirements of clauses (a) through
(e) of this paragraph a notice advising such purchaser that resales thereof are
restricted as stated herein.
5. I understand that, on any proposed resale of the Notes or beneficial
interest therein, I will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. I further understand that the Notes purchased by me will bear a
legend to the foregoing effect.
6. I am acquiring the Notes for investment purposes only with no
present intention to resell the Notes, and agree not to sell, transfer, assign,
pledge or hypothecate any of the Notes for at least three months following the
completion of the offering.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
____________________________________
[Insert Name of Accredited Investor]
By:_________________________________
Name:
Title:
Dated: _________, __
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EXHIBIT E-1
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
This SUPPLEMENTAL INDENTURE, dated as of ________________,
200__, among __________________ (the "Guaranteeing Subsidiary"), a subsidiary of
K&F Acquisition, Inc. (or its permitted successor), a Delaware corporation (the
"Company"), the Company, the other Guarantors (as defined in the Indenture
referred to herein) and U.S. Bank National Association, as Trustee.
W I T N E S S E T H
WHEREAS, the Company and the Trustee entered into an Indenture
(the "Indenture"), dated as of November 18, 2004, pursuant to which the Company
has issued $___________ in principal amount of 7-3/4% Senior Subordinated Notes
due 2014 (the "Notes");
WHEREAS, Section 9.01(8) of the Indenture provides that the
Company, the Guarantors and the Trustee may amend or supplement the Indenture in
order to add Subsidiary Guarantees with respect to the Notes, without the
consent of the Holders of the Notes; and
WHEREAS, all acts and things prescribed by the Indenture, by
law and by the Certificate of Incorporation and the Bylaws (or comparable
constituent documents) of the Company, the Guarantors and the Trustee necessary
to make this Supplemental Indenture a valid instrument legally binding on the
Company, the Guarantors and the Trustee, in accordance with its terms, have been
duly done and performed;
NOW THEREFORE, to comply with the provisions of the Indenture,
and in consideration of the foregoing, the Guaranteeing Subsidiary, the Company,
the Guarantors and the Trustee mutually covenant and agree for the equal and
ratable benefit of the Holders of the Notes as follows:
ARTICLE 1
Section 1.01. This Supplemental Indenture is supplemental to
the Indenture and does and shall be deemed to form a part of, and shall be
construed in connection with and as part of, the Indenture for any and all
purposes.
Section 1.02. This Supplemental Indenture shall become
effective immediately upon its execution and delivery by each of the
Guaranteeing Subsidiaries, the Company, the Guarantors and the Trustee.
ARTICLE 2
Section 2.01. Each of the Guaranteeing Subsidiaries hereby
agrees to be bound by the terms, conditions and other provisions of the
Indenture with all attendant rights, duties and obligations stated therein, on a
joint and several basis with the parties hereto and thereto, with the same force
and effect as if originally named as a Guarantor therein and as if such party
executed the Indenture on the date thereof.
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ARTICLE 3
Section 3.01. Except as specifically modified herein, the
Indenture and the Notes are in all respects ratified and confirmed (mutatis
mutandis) and shall remain in full force and effect in accordance with their
terms.
Section 3.02. All capitalized terms used but not defined
herein shall have the same respective meanings ascribed to them in the
Indenture.
Section 3.03. Except as otherwise expressly provided herein,
no duties, responsibilities or liabilities are assumed, or shall be construed to
be assumed, by the Trustee by reason of this Supplemental Indenture. This
Supplemental Indenture is executed and accepted by the Trustee subject to all of
the terms and conditions set forth in the Indenture with the same force and
effect as if those terms and conditions were repeated at length herein and made
applicable to the Trustee with respect hereto.
Section 3.04. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 3.05. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
Section 3.06. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this letter agreement.
Section 3.07. The recitals hereto are statements only of the
Company, the Guarantors and the Guaranteeing Subsidiaries and shall not be
considered statements of or attributable to the Trustee.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
[GUARANTEEING SUBSIDIARY]
By:_________________________________
Name:
Title:
K&F ACQUISITION, INC.
By:_________________________________
Name:
Title:
[EXISTING GUARANTORS]
By:_________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:_________________________________
Name:
Title:
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EXHIBIT E-2
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY A PERMITTED SUCCESSOR TO THE COMPANY]
This SUPPLEMENTAL INDENTURE, dated as of ________________,
200__, among __________________ (the "Successor Company"), a permitted successor
to K&F Acquisition, Inc., a Delaware corporation (the "Company"), the Guarantors
(as defined in the Indenture referred to herein) and U.S. Bank National
Association, as Trustee.
W I T N E S S E T H
WHEREAS, the Company and the Trustee entered into an Indenture
(the "Indenture"), dated as of November 18, 2004, pursuant to which the Company
has issued $___________ in principal amount of 7-3/4% Senior Subordinated Notes
due 2014 (the "Notes");
WHEREAS, Section 9.01(3) of the Indenture provides that the
Company, the Guarantors and the Trustee may amend or supplement the Indenture in
order to provide for the assumption of the Company's obligations to Holders of
Notes in the case of a merger or consolidation or sale of all or substantially
all of the Company's assets, without the consent of the Holders of the Notes;
and
WHEREAS, all acts and things prescribed by the Indenture, by
law and by the Certificate of Incorporation and the Bylaws (or comparable
constituent documents) of the Successor Company, the Guarantors and the Trustee
necessary to make this Supplemental Indenture a valid instrument legally binding
on the Successor Company, the Guarantors and the Trustee, in accordance with its
terms, have been duly done and performed;
NOW THEREFORE, to comply with the provisions of the Indenture,
and in consideration of the foregoing, the Successor Company, the Guarantors and
the Trustee mutually covenant and agree for the equal and ratable benefit of the
Holders of the Notes as follows:
ARTICLE 4
Section 1.01. This Supplemental Indenture is supplemental to
the Indenture and does and shall be deemed to form a part of, and shall be
construed in connection with and as part of, the Indenture for any and all
purposes.
Section 1.02. This Supplemental Indenture shall become
effective immediately upon its execution and delivery by each of the
Guaranteeing Subsidiaries, the Company, the Guarantors and the Trustee.
ARTICLE 5
Section 2.01. In accordance with Section 5.02 of the
Indenture, the Successor Company hereby agrees to be bound by the terms,
conditions and other provisions of, and assumes all of the obligations of the
Company under, the Indenture and the Notes with all attendant rights, duties and
obligations stated therein, on a joint and several basis with the parties hereto
and thereto, with the same force and effect as if originally named as the
Company therein and as if such party executed the Indenture on the date thereof.
The Successor Company represents and warrants that all of the conditions set
forth in Section 5.01 of the Indenture are satisfied.
E-2-1
ARTICLE 6
Section 3.01. Except as specifically modified herein, the
Indenture and the Notes are in all respects ratified and confirmed (mutatis
mutandis) and shall remain in full force and effect in accordance with their
terms.
Section 3.02. All capitalized terms used but not defined
herein shall have the same respective meanings ascribed to them in the
Indenture.
Section 3.03. Except as otherwise expressly provided herein,
no duties, responsibilities or liabilities are assumed, or shall be construed to
be assumed, by the Trustee by reason of this Supplemental Indenture. This
Supplemental Indenture is executed and accepted by the Trustee subject to all of
the terms and conditions set forth in the Indenture with the same force and
effect as if those terms and conditions were repeated at length herein and made
applicable to the Trustee with respect hereto.
Section 3.04. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 3.05. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
Section 3.06. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this letter agreement.
Section 3.07. The recitals hereto are statements only of the
Company and the Guarantors and shall not be considered statements of or
attributable to the Trustee.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
[SUCCESSOR COMPANY]
By:_________________________________
Name:
Title:
[GUARANTORS]
By:_________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:_________________________________
Name:
Title:
E-2-3
