Exhibit 4.1
RENTAL SERVICE CORPORATION, as Issuer
RSC HOLDINGS III, LLC
as Co-Issuer
and
the Subsidiary Guarantors, if any, from time to time parties hereto
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Trustee
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INDENTURE
DATED AS OF NOVEMBER 27, 2006
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9 1/2% SENIOR NOTES DUE 2014
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.............................................. 1
Section 102. Other Definitions........................................ 35
Section 103. Rules of Construction.................................... 36
Section 104. Incorporation by Reference of TIA........................ 37
Section 105. Conflict with TIA........................................ 37
Section 106. Compliance Certificates and Opinions..................... 37
Section 107. Form of Documents Delivered to Trustee................... 38
Section 108. Acts of Noteholders; Record Dates........................ 39
Section 109. Notices, etc., to Trustee and Issuers.................... 41
Section 110. Notices to Holders; Waiver............................... 41
Section 111. Effect of Headings and Table of Contents................. 42
Section 112. Successors and Assigns................................... 42
Section 113. Separability Clause...................................... 42
Section 114. Benefits of Indenture.................................... 42
Section 115. Governing Law............................................ 42
Section 116. Legal Holidays........................................... 42
Section 117. No Personal Liability of Directors, Officers,
Employees, Incorporators and Stockholders................ 43
Section 118. Exhibits and Schedules................................... 43
Section 119. Counterparts............................................. 43
ARTICLE II
NOTE FORMS
Section 201. Forms Generally.......................................... 43
Section 202. Form of Trustee's Certificate of Authentication.......... 45
Section 203. Restrictive and Global Note Legends...................... 45
ARTICLE III
THE NOTES
Section 301. Title and Terms.......................................... 47
Section 302. Denominations............................................ 48
Section 303. Execution, Authentication and Delivery and Dating........ 48
Section 304. Temporary Notes.......................................... 49
Section 305. Registrar and Paying Agent............................... 49
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Section 306. Mutilated, Destroyed, Lost and Stolen Notes.............. 50
Section 307. Payment of Interest Rights Preserved..................... 51
Section 308. Persons Deemed Owners.................................... 52
Section 309. Cancellation............................................. 52
Section 310. Computation of Interest.................................. 52
Section 311. CUSIP Numbers, ISINs, etc................................ 52
Section 312. Book-Entry Provisions for Global Notes................... 52
Section 313. Special Transfer Provisions.............................. 54
Section 314. Payment of Additional Interest........................... 57
Section 315. [Reserved]............................................... 57
ARTICLE IV
COVENANTS
Section 401. Payment of Principal, Premium and Interest............... 57
Section 402. Maintenance of Office or Agency.......................... 58
Section 403. Money for Payments to Be Held in Trust................... 58
Section 404. [Reserved]............................................... 59
Section 405. SEC Reports.............................................. 59
Section 406. Statement as to Default.................................. 60
Section 407. Limitation on Indebtedness............................... 60
Section 408. [Reserved]............................................... 64
Section 409. Limitation on Restricted Payments........................ 64
Section 410. Limitation on Restrictions on Distributions from
Restricted Subsidiaries.................................. 67
Section 411. Limitation on Sales of Assets and Subsidiary Stock....... 69
Section 412. Limitation on Transactions with Affiliates............... 72
Section 413. Limitation on Liens...................................... 74
Section 414. Future Subsidiary Guarantors............................. 74
Section 415. Purchase of Notes upon a Change in Control............... 74
ARTICLE V
SUCCESSORS
Section 501. When the Issuers May Merge, etc.......................... 75
Section 502. Successor Company Substituted............................ 76
ARTICLE VI
REMEDIES
Section 601. Events of Default........................................ 77
Section 602. Acceleration of Maturity; Rescission and Annulment....... 79
Section 603. Other Remedies; Collection Suit by Trustee............... 79
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Section 604. Trustee May File Proofs of Claim......................... 80
Section 605. Trustee May Enforce Claims Without Possession of Notes... 80
Section 606. Application of Money Collected........................... 80
Section 607. Limitation on Suits...................................... 81
Section 608. Unconditional Right of Holders to Receive
Principal and Interest................................... 81
Section 609. Restoration of Rights and Remedies....................... 81
Section 610. Rights and Remedies Cumulative........................... 81
Section 611. Delay or Omission Not Waiver............................. 82
Section 612. Control by Holders....................................... 82
Section 613. Waiver of Past Defaults.................................. 82
Section 614. Undertaking for Costs.................................... 83
Section 615. Waiver of Stay, Extension or Usury Laws.................. 83
ARTICLE VII
THE TRUSTEE
Section 701. Certain Duties and Responsibilities...................... 83
Section 702. Notice of Defaults....................................... 84
Section 703. Certain Rights of Trustee................................ 84
Section 704. Not Responsible for Recitals or Issuance of Notes........ 85
Section 705. May Hold Notes........................................... 86
Section 706. Money Held in Trust...................................... 86
Section 707. Compensation and Reimbursement........................... 86
Section 708. Conflicting Interests.................................... 86
Section 709. Corporate Trustee Required; Eligibility.................. 86
Section 710. Resignation and Removal; Appointment of Successor........ 87
Section 711. Acceptance of Appointment by Successor................... 88
Section 712. Merger, Conversion, Consolidation or Succession
to Business.............................................. 88
Section 713. Preferential Collection of Claims Against the Issuers.... 88
Section 714. Appointment of Authenticating Agent...................... 89
ARTICLE VIII
HOLDERS' LISTS AND REPORTS BY
TRUSTEE AND THE ISSUERS
Section 801. The Issuers to Furnish Trustee Names and Addresses
of Holders............................................... 89
Section 802. Preservation of Information; Communications to Holders... 89
Section 803. Reports by Trustee....................................... 90
ARTICLE IX
AMENDMENT, SUPPLEMENT OR WAIVER
Section 901. Without Consent of Holders............................... 90
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Section 902. With Consent of Holders.................................. 91
Section 903. Execution of Amendments, Supplements or Waivers.......... 92
Section 904. Revocation and Effect of Consents........................ 92
Section 905. Conformity with TIA...................................... 92
Section 906. Notation on or Exchange of Notes......................... 92
ARTICLE X
REDEMPTION OF NOTES
Section 1001. Right of Redemption...................................... 93
Section 1002. Applicability of Article................................. 94
Section 1003. Election to Redeem; Notice to Trustee.................... 94
Section 1004. Selection by Trustee of Notes to Be Redeemed............. 94
Section 1005. Notice of Redemption..................................... 95
Section 1006. Deposit of Redemption Price.............................. 96
Section 1007. Notes Payable on Redemption Date......................... 96
Section 1008. Notes Redeemed in Part................................... 96
ARTICLE XI
SATISFACTION AND DISCHARGE
Section 1101. Satisfaction and Discharge of Indenture.................. 97
Section 1102. Application of Trust Money............................... 98
ARTICLE XII
DEFEASANCE OR COVENANT DEFEASANCE
Section 1201. The Issuers' Option to Effect Defeasance or Covenant
Defeasance............................................... 98
Section 1202. Defeasance and Discharge................................. 98
Section 1203. Covenant Defeasance...................................... 99
Section 1204. Conditions to Defeasance or Covenant Defeasance.......... 99
Section 1205. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous
Provisions............................................... 101
Section 1206. Reinstatement............................................ 101
Section 1207. Repayment to the Issuers................................. 102
ARTICLE XIII
SUBSIDIARY GUARANTEES
Section 1301. Guarantees Generally..................................... 102
Section 1302. Continuing Guarantees.................................... 104
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Section 1303. Release of Subsidiary Guarantees......................... 104
Section 1304. [Reserved]............................................... 105
Section 1305. Waiver of Subrogation.................................... 105
Section 1306. Notation Not Required.................................... 105
Section 1307. Successors and Assigns of Subsidiary Guarantors.......... 105
Section 1308. Execution and Delivery of Subsidiary Guarantees.......... 105
Section 1309. Notices.................................................. 106
Exhibit A Form of Initial Note
Exhibit B Form of Exchange Note
Exhibit C Form of Certificate of Beneficial Ownership
Exhibit D Form of Regulation S Certificate
Exhibit E Form of Supplemental Indenture in Respect
of Subsidiary Guarantees
Exhibit F Form of Supplemental Indenture for Mergers
Exhibit G Form of Certificate from Acquiring
Institutional Accredited Investors
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Certain Sections of this Indenture relating to Sections 310 through 318
inclusive of the Trust Indenture Act of 1939:
Trust Indenture Act Section Indenture Section
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Section 310(a)(l)........................................... 709
(a)(2)........................................... 709
(a)(3)........................................... Not Applicable
(a)(4)........................................... Not Applicable
(b).............................................. 708
Section 311(a).............................................. 713
(b).............................................. 713
(b)(2)........................................... 803
Section 312(a).............................................. 801, 802
(b).............................................. 802
(c).............................................. 802
Section 313(a).............................................. 803
(b).............................................. 803
(c).............................................. 803
(d).............................................. 803
Section 314(a).............................................. 405
(a)(4)........................................... 106, 406
(b).............................................. Not Applicable
(c)(1)........................................... 106
(c)(2)........................................... 106
(c)(3)........................................... Not Applicable
(d).............................................. Not Applicable
(e).............................................. 106
Section 315(a).............................................. 701
(b).............................................. 702, 803
(c).............................................. 701
(d).............................................. 701
(d)(l)........................................... 701
(d)(2)........................................... 701
(d)(3)........................................... 612
(e).............................................. 614
Section 316(a).............................................. 612, 613
(a)(l)(A)........................................ 602, 612
(a)(l)(B)........................................ 613
(a)(2)........................................... Not Applicable
(b).............................................. 608
(c).............................................. 104
Section 317(a)(l)........................................... 603
(a)(2)........................................... 604
(b).............................................. 403
Section 318(a).............................................. 107
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This cross-reference table shall not for any purpose be deemed to be part of
this Indenture.
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INDENTURE, dated as of November 27, 2006 (as amended, supplemented or
otherwise modified from time to time, this "Indenture"), among Rental Service
Corporation, a corporation organized under the laws of the state of Arizona
("RSC"), and RSC Holdings III, LLC, a limited liability company organized under
the laws of the state of Delaware (the "Company" and together with RSC, the
"Issuers"), the Subsidiary Guarantors, if any, from time to time parties hereto
and Xxxxx Fargo Bank, National Association, a national banking association, as
Trustee. RSC is a wholly-owned subsidiary of the Company.
RECITALS OF THE ISSUERS
The Issuers have duly authorized the execution and delivery of this
Indenture to provide for the issuance of the Notes.
All things necessary to make the Notes, when executed and delivered by
the Issuers and authenticated and delivered by the Trustee hereunder and duly
issued by the Issuers, the valid several obligations of the Issuers, and to make
this Indenture a valid agreement of the Issuers in accordance with the terms of
the Notes and this Indenture, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually agreed, for the benefit of all Holders of
the Notes, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
"Acquisition Entities" means, collectively, RSC Acquisition LLC and
RSC Acquisition II, LLC (each an affiliate of Ripplewood) and OHCP II RSC, LLC,
OHCMP II RSC, LLC and OHCP II RSC COI, LLC (each an affiliate of Oak Hill).
"Acquired Indebtedness" means Indebtedness of a Person (i) existing at
the time such Person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from such Person, in each case other than Indebtedness
Incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary or such acquisition. Acquired Indebtedness shall be deemed to be
Incurred on the date of the related acquisition of assets from any Person or the
date the acquired Person becomes a Subsidiary.
"Additional Assets" means (i) any property or assets that replace the
property or assets that are the subject of an Asset Disposition; (ii) any
property or assets (other than Indebtedness and Capital Stock) used or to be
used by the Company or a Restricted Subsidiary or otherwise useful in a Related
Business (including any capital expenditures on any property or assets already
so used); (iii) the Capital Stock of a Person that is engaged in a Related
Business and becomes a Restricted Subsidiary as a result of the acquisition of
such Capital Stock by the
Company or another Restricted Subsidiary; or (iv) Capital Stock of any Person
that at such time is a Restricted Subsidiary acquired from a third party.
"Additional Notes" means any notes issued under this Indenture in
addition to the Original Notes (other than any Notes issued pursuant to Section
304, 305, 306, 312(c), 312(d) or 1008).
"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 the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Asset Disposition" means any sale, lease, transfer or other
disposition of shares of Capital Stock of a Restricted Subsidiary (other than
directors' qualifying shares, or (in the case of a Foreign Subsidiary) to the
extent required by applicable law), property or other assets (each referred to
for the purposes of this definition as a "disposition") by the Company or any of
its Restricted Subsidiaries (including any disposition by means of a merger,
consolidation or similar transaction), other than (i) a disposition to the
Company or a Restricted Subsidiary, (ii) a disposition in the ordinary course of
business, (iii) the sale or discount (with or without recourse, and on customary
or commercially reasonable terms) of accounts receivable or notes receivable
arising in the ordinary course of business, or the conversion or exchange of
accounts receivable for notes receivable, (iv) any Restricted Payment
Transaction, (v) a disposition that is governed by Article V, (vi) any Financing
Disposition, (vii) any "fee in lieu" or other disposition of assets to any
governmental authority or agency that continue in use by the Company or any
Restricted Subsidiary, so long as the Company or any Restricted Subsidiary may
obtain title to such assets upon reasonable notice by paying a nominal fee,
(viii) any exchange of property pursuant to or intended to qualify under Section
1031 (or any successor section) of the Code, or any exchange of equipment to be
leased, rented or otherwise used in a Related Business, (ix) any financing
transaction with respect to property built or acquired by the Company or any
Restricted Subsidiary after the Issue Date, including without limitation any
sale/leaseback transaction or asset securitization, (x) any disposition arising
from foreclosure, condemnation or similar action with respect to any property or
other assets, or exercise of termination rights under any lease, license,
concession or other agreement, (xi) any disposition of Capital Stock,
Indebtedness or other securities of an Unrestricted Subsidiary, (xii) a
disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement
or other obligation with or to a Person (other than the Company or a Restricted
Subsidiary) from whom such Restricted Subsidiary was acquired, or from whom such
Restricted Subsidiary acquired its business and assets (having been newly formed
in connection with such acquisition), entered into in connection with such
acquisition, or (xiii) any disposition or series of related dispositions for
aggregate consideration not to exceed $35.0 million.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 714 to act on behalf of the Trustee to authenticate Notes of
one or more series.
"Bank Indebtedness" means any and all amounts, whether outstanding on
the Issue Date or thereafter incurred, payable under or in respect of any Credit
Facility, including
without limitation principal, premium (if any), interest (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company or any Restricted Subsidiary whether or
not a claim for post-filing interest is allowed in such proceedings), fees,
charges, expenses, reimbursement obligations, guarantees, other monetary
obligations of any nature and all other amounts payable thereunder or in respect
thereof.
"Board of Directors" means, for any Person, the board of directors or
other governing body of such Person or, if such Person does not have a board of
directors or other governing body and is owned or managed by a single entity,
the board of directors or other governing body of such entity, or, in either
case, any committee thereof duly authorized to act on behalf of such board or
governing body. Unless otherwise provided, "Board of Directors" means the Board
of Directors of the Company.
"Borrowing Base" means the sum of (1) 60% of the book value of
Inventory (excluding Equipment) of the Company and its Domestic Subsidiaries,
(2) 85% of the book value of Receivables of the Company and its Domestic
Subsidiaries, (3) 95% of the book value of Equipment of the Company and its
Domestic Subsidiaries and (4) cash, Cash Equivalents and Temporary Cash
Investments of the Company and its Domestic Subsidiaries (in each case,
determined as of the end of the most recently ended fiscal month of the Company
for which internal consolidated financial statements of the Company are
available, and, in the case of any determination relating to any Incurrence of
Indebtedness, on a pro forma basis including (x) any property or assets of a
type described above acquired since the end of such fiscal month and (y) any
property or assets of a type described above being acquired in connection
therewith).
"Business Day" means a day other than a Saturday, Sunday or other day
on which commercial banking institutions are authorized or required by law to
close in New York City (or any other city in which a Paying Agent maintains its
office).
"Capital Stock" of any Person means any and all shares of, rights to
purchase, warrants or options for, or other equivalents of or interests in
(however designated) equity of such Person, including any Preferred Stock, but
excluding any debt securities convertible into such equity.
"Capitalized Lease Obligation" means an obligation that is required to
be classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with GAAP. The Stated Maturity of any Capitalized Lease
Obligation shall be the date of the last payment of rent or any other amount due
under the related lease.
"Cash Equivalents" means any of the following: (a) securities issued
or fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof, (b) time deposits, certificates of deposit or bankers'
acceptances of (i) any lender under a Senior Credit Agreement or any affiliate
thereof or (ii) any commercial bank having capital and surplus in excess of
$500,000,000 and the commercial paper of the holding company of which is rated
at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent
thereof by Xxxxx'x (or if at such time neither is issuing ratings, then a
comparable rating of another nationally recognized rating agency), (c) money
market instruments, commercial paper or other short-term obligations rated at
least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent
thereof by Xxxxx'x (or if at such time neither is issuing ratings, then a
comparable rating of another nationally recognized rating agency), (d)
investments in money market funds subject to the risk limiting conditions of
Rule 2a-7 or any successor rule of the SEC under the Investment Company Act of
1940, as amended, and (e) investments similar to any of the foregoing
denominated in foreign currencies approved by the Board of Directors.
"Change of Control" means the occurrence of any of the following after
the Issue Date:
(i) the sale, lease or transfer, in one or a series of related
transactions (other than by way of merger or consolidation), of all or
substantially all of the assets of the Company and its Restricted
Subsidiaries, taken as a whole, to any Person other than one or more
Permitted Holders; or
(ii) the Company becomes aware of (by way of a report or any other
filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written
notice or otherwise) the acquisition by (A) any Person (other than one or
more Permitted Holders) or (B) Persons (other than one or more Permitted
Holders) that are together (1) a group (within the meaning of Section
13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor
provision), or (2) are acting, for the purpose of acquiring, holding or
disposing of securities (within the meaning of Rule 13d-5(b)(l) under the
Exchange Act), as a group, in a single transaction or in a related series
of transactions, by way of merger, consolidation or other business
combination or purchase of beneficial ownership (within the meaning of Rule
13d-3 under the Exchange Act, or any successor provision) of more than 50%
of the total voting power of the Voting Stock of the Company or any of its
direct or indirect parent companies holding directly or indirectly 100% of
the total voting power of the Voting Stock of the Company.
Notwithstanding anything to the contrary in the foregoing, the Transactions
shall not constitute or give rise to a "Change of Control."
"Clearstream" means Clearstream Banking, societe anonyme, or any
successor securities clearing agency.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commodities Agreement" means, in respect of a Person, any commodity
futures contract, forward contract, option or similar agreement or arrangement
(including derivative agreements or arrangements), as to which such Person is a
party or beneficiary.
"Company" has the meaning set forth in the preamble and any successor
in interest thereto.
"Consolidated Coverage Ratio" as of any date of determination means
the ratio of (i) the aggregate amount of Consolidated EBITDA for the period of
the most recent four consecutive fiscal quarters ending prior to the date of
such determination for which consolidated financial statements of the Company
are available to (ii) Consolidated Interest Expense for such
four fiscal quarters (in each of the foregoing clauses (i) and (ii), determined
for each fiscal quarter (or portion thereof) of the four fiscal quarters ending
prior to the Issue Date, on a pro forma basis to give effect to the Acquisition
as if it had occurred at the beginning of such four-quarter period); provided
that
(1) if since the beginning of such period the Company or any
Restricted Subsidiary has Incurred any Indebtedness that remains
outstanding on such date of determination or if the transaction giving
rise to the need to calculate the Consolidated Coverage Ratio is an
Incurrence of Indebtedness, Consolidated EBITDA and Consolidated Interest
Expense for such period shall be calculated after giving effect on a pro
forma basis to such Indebtedness as if such Indebtedness had been Incurred
on the first day of such period (except that in making such computation,
the amount of Indebtedness under any revolving credit facility outstanding
on the date of such calculation shall be computed based on (A) the average
daily balance of such Indebtedness during such four fiscal quarters or
such shorter period for which such facility was outstanding or (B) if such
facility was created after the end of such four fiscal quarters, the
average daily balance of such Indebtedness during the period from the date
of creation of such facility to the date of such calculation),
(2) if since the beginning of such period the Company or any
Restricted Sub sidiary has repaid, repurchased, redeemed, defeased or
otherwise acquired, retired or discharged any Indebtedness that is no
longer outstanding on such date of determination (each, a "Discharge") or
if the transaction giving rise to the need to calculate the Consolidated
Coverage Ratio involves a Discharge of Indebtedness (in each case other
than Indebtedness Incurred under any revolving credit facility unless such
Indebtedness has been permanently repaid), Consolidated EBITDA and
Consolidated Interest Expense for such period shall be calculated after
giving effect on a pro forma basis to such Discharge of such Indebtedness,
including with the proceeds of such new Indebtedness, as if such Discharge
had occurred on the first day of such period,
(3) if since the beginning of such period the Company or any
Restricted Subsidiary shall have disposed of any company, any business or
any group of assets constituting an operating unit of a business (any such
disposition, a "Sale"), the Consolidated EBITDA for such period shall be
reduced by an amount equal to the Consolidated EBITDA (if positive)
attributable to the assets that are the subject of such Sale for such
period or increased by an amount equal to the Consolidated EBITDA (if
negative) attributable thereto for such period and Consolidated Interest
Expense for such period shall be reduced by an amount equal to (A) the
Consolidated Interest Expense attributable to any Indebtedness of the
Company or any Restricted Subsidiary repaid, repurchased, redeemed,
defeased or otherwise acquired, retired or discharged with respect to the
Company and its continuing Restricted Subsidiaries in connection with such
Sale for such period (including but not limited to through the assumption
of such Indebtedness by another Person) plus (B) if the Capital Stock of
any Restricted Subsidiary is sold, the Consolidated Interest Expense for
such period attributable to the Indebtedness of such Restricted Subsidiary
to the extent the Company and its continuing Restricted Subsidiaries are no
longer liable for such Indebtedness after such Sale,
(4) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger, consolidation or otherwise) shall have
made an Investment in any Person that thereby becomes a Restricted
Subsidiary, or otherwise acquired any company, any business or any group of
assets constituting an operating unit of a business, including any such
Investment or acquisition occurring in connection with a transaction
causing a calculation to be made hereunder (any such Investment or
acquisition, a "Purchase"), Consolidated EBITDA and Consolidated Interest
Expense for such period shall be calculated after giving pro forma effect
thereto (including the Incurrence of any related Indebtedness) as if such
Purchase occurred on the first day of such period, and
(5) if since the beginning of such period any Person became a
Restricted Subsidiary or was merged or consolidated with or into the
Company or any Restricted Subsidiary, and since the beginning of such
period such Person shall have Discharged any Indebtedness or made any Sale
or Purchase that would have required an adjustment pursuant to clause (2),
(3) or (4) above if made by the Company or a Restricted Subsidiary since
the beginning of such period, Consolidated EBITDA and Consolidated Interest
Expense for such period shall be calculated after giving pro forma effect
thereto as if such Discharge, Sale or Purchase occurred on the first day of
such period.
For purposes of this definition, whenever pro forma effect is to be
given to any Sale, Purchase or other transaction, or the amount of income or
earnings relating thereto and the amount of Consolidated Interest Expense
associated with any Indebtedness Incurred or repaid, repurchased, redeemed,
defeased or otherwise acquired, retired or discharged in connection therewith,
the pro forma calculations in respect thereof (including without limitation in
respect of anticipated cost savings or synergies relating to any such Sale,
Purchase or other transaction) shall be as determined in good faith by the Chief
Financial Officer or an authorized Officer of the Company. If any Indebtedness
bears a floating rate of interest and is being given pro forma effect, the
interest expense on such Indebtedness shall be calculated as if the rate in
effect on the date of determination had been the applicable rate for the entire
period (taking into account any Interest Rate Agreement applicable to such
Indebtedness). If any Indebtedness bears, at the option of the Company or a
Restricted Subsidiary, a rate of interest based on a prime or similar rate, a
eurocurrency interbank offered rate or other fixed or floating rate, and such
Indebtedness is being given pro forma effect, the interest expense on such
Indebtedness shall be calculated by applying such optional rate as the Company
or such Restricted Subsidiary may designate. If any Indebtedness that is being
given pro forma effect was Incurred under a revolving credit facility, the
interest expense on such Indebtedness shall be computed based upon the average
daily balance of such Indebtedness during the applicable period. Interest on a
Capitalized Lease Obligation shall be deemed to accrue at an interest rate
determined in good faith by a responsible financial or accounting officer of the
Company to be the rate of interest implicit in such Capitalized Lease Obligation
in accordance with GAAP.
"Consolidated EBITDA" means, for any period, the Consolidated Net
Income for such period, plus the following to the extent deducted in calculating
such Consolidated Net Income, without duplication: (i) provision for all taxes
(whether or not paid, estimated or accrued) based on income, profits or capital,
(ii) Consolidated Interest Expense and any Special Purpose Financing Fees, (iii)
depreciation, amortization (including but not limited to amortization of
goodwill and intangibles and amortization and write-off of financing costs) and
all other noncash charges or noncash losses, (iv) any expenses or charges
related to any Equity Offering, Investment or Indebtedness permitted by this
Indenture (whether or not consummated or incurred), (v) the amount of any
minority interest expense and (vi) any management, monitoring, consulting and
advisory fees and related expenses paid to any of Ripplewood or Oak Hill and
their respective Affiliates.
"Consolidated Interest Expense" means, for any period, (i) the total
interest expense of the Company and its Restricted Subsidiaries to the extent
deducted in calculating Consolidated Net Income, net of any interest income of
the Company and its Restricted Subsidiaries, including without limitation any
such interest expense consisting of (a) interest expense attributable to
Capitalized Lease Obligations, (b) amortization of debt discount, (c) interest
in respect of Indebtedness of any other Person that has been Guaranteed by the
Company or any Restricted Subsidiary, but only to the extent that such interest
is actually paid by the Company or any Restricted Subsidiary, (d) noncash
interest expense, (e) the interest portion of any deferred payment obligation
and (f) commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing, plus (ii) Preferred Stock
dividends paid in cash in respect of Disqualified Stock of the Company held by
Persons other than the Company or a Restricted Subsidiary and minus (iii) to the
extent otherwise included in such interest expense referred to in clause (i)
above, amortization or write-off of financing costs, in each case under clauses
(i) through (iii) as determined on a Consolidated basis in accordance with GAAP;
provided that gross interest expense shall be determined after giving effect to
any net payments made or received by the Company and its Restricted Subsidiaries
with respect to Interest Rate Agreements.
"Consolidated Net Income" means, for any period, the net income (loss)
of the Company and its Restricted Subsidiaries, determined on a Consolidated
basis in accordance with GAAP and before any reduction in respect of Preferred
Stock dividends; provided that there shall not be included in such Consolidated
Net income:
(i) any net income (loss) of any Person if such Person is not a
Restricted Subsidiary, except that (A) subject to the limitations contained
in clause (iii) below, the Company's equity in the net income of any such
Person for such period shall be included in such Consolidated Net Income up
to the aggregate amount actually distributed by such Person during such
period to the Company or a Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other distribution to a
Restricted Subsidiary, to the limitations contained in clause (ii) below)
and (B) the Company's equity in the net loss of such Person shall be
included to the extent of the aggregate Investment of the Company or any of
its Restricted Subsidiaries in such Person,
(ii) solely for purposes of determining the amount available for
Restricted Payments under Section 409(a)(3)(A), any net income (loss) of
any Restricted Subsidiary that is not a Subsidiary Guarantor if such
Restricted Subsidiary is subject to restrictions, directly or indirectly,
on the payment of dividends or the making of similar distributions by such
Restricted Subsidiary, directly or indirectly, to the Company by operation
of the terms of such Restricted Subsidiary's charter or any agreement,
instrument, judgment,
decree, order, statute or governmental rule or regulation applicable to
such Restricted Subsidiary or its stockholders (other than (x) restrictions
that have been waived or otherwise released, (y) restrictions pursuant to
the Notes or this Indenture and (z) restrictions in effect on the Issue
Date with respect to a Restricted Subsidiary and other restrictions with
respect to such Restricted Subsidiary that taken as a whole are not
materially less favorable to the Noteholders than such restrictions in
effect on the Issue Date), except that (A) subject to the limitations
contained in clause (iii) below, the Company's equity in the net income of
any such Restricted Subsidiary for such period shall be included in such
Consolidated Net Income up to the aggregate amount of any dividend or
distribution that was or that could have been made by such Restricted
Subsidiary during such period to the Company or another Restricted
Subsidiary (subject, in the case of a dividend that could have been made to
another Restricted Subsidiary, to the limitation contained in this clause)
and (B) the net loss of such Restricted Subsidiary shall be included to the
extent of the aggregate Investment of the Company or any of its other
Restricted Subsidiaries in such Restricted Subsidiary,
(iii) any gain or loss realized upon the sale or other disposition of
any asset of the Company or any Restricted Subsidiary (including pursuant
to any sale/leaseback transaction) that is not sold or otherwise disposed
of in the ordinary course of business (as determined in good faith by the
Board of Directors),
(iv) any item classified as an extraordinary, unusual or nonrecurring
gain, loss or charge (including fees, expenses and charges associated with
the Transactions and any acquisition, merger or consolidation after the
Issue Date),
(v) the cumulative effect of a change in accounting principles,
(vi) all deferred financing costs written off and premiums paid in
connection with any early extinguishment of Indebtedness,
(vii) any unrealized gains or losses in respect of Currency
Agreements,
(viii) any unrealized foreign currency transaction gains or losses in
respect of Indebtedness of any Person denominated in a currency other than
the functional currency of such Person,
(ix) any noncash compensation charge arising from any grant of stock,
stock options or other equity based awards,
(x) to the extent otherwise included in Consolidated Net Income, any
unrealized foreign currency translation or transaction gains or losses in
respect of Indebtedness or other obligations of the Company or any
Restricted Subsidiary owing to the Company or any Restricted Subsidiary,
and
(xi) any noncash charge, expense or other impact attributable to
application of the purchase method of accounting (including the total
amount of depreciation and
amortization, cost of sales or other noncash expense resulting from the
write-up of assets to the extent resulting from such purchase accounting
adjustments).
In the case of any unusual or nonrecurring gain, loss or charge not
included in Consolidated Net Income pursuant to clause (iv) above in any
determination thereof, the Company will deliver an Officer's Certificate to the
Trustee promptly after the date on which Consolidated Net Income is so
determined, setting forth the nature and amount of such unusual or nonrecurring
gain, loss or charge. Notwithstanding the foregoing, for the purpose of Section
409(a)(3)(A) only, there shall be excluded from Consolidated Net Income, without
duplication, any income consisting of dividends, repayments of loans or advances
or other transfers of assets from Unrestricted Subsidiaries to the Company or a
Restricted Subsidiary, and any income consisting of return of capital, repayment
or other proceeds from dispositions or repayments of Investments consisting of
Restricted Payments, in each case to the extent such income would be included in
Consolidated Net Income and such related dividends, repayments, transfers,
return of capital or other proceeds are applied by the Company to increase the
amount of Restricted Payments permitted under Section 409(a)(3)(C) or (D).
"Consolidated Quarterly Tangible Assets" means, as of any date of
determination, the total assets less the sum of the goodwill, net, and other
intangible assets, net, in each case reflected on the consolidated balance sheet
of the Company and its Restricted Subsidiaries as at the end of any fiscal
quarter of the Company for which such a balance sheet is available, determined
on a Consolidated basis in accordance with GAAP (and, in the case of any
determination relating to any Incurrence of Indebtedness or any Investment, on a
pro forma basis including any property or assets being acquired in connection
therewith).
"Consolidated Secured Indebtedness" means, as of any date of
determination, an amount equal to the Consolidated Total Indebtedness as of such
date that in each case is then secured by Liens on property or assets of the
Company and its Restricted Subsidiaries (other than property or assets held in a
defeasance or similar trust or arrangement for the benefit of the Indebtedness
secured thereby).
"Consolidated Secured Leverage Ratio" means, as of any date of
determination, the ratio of (x) Consolidated Secured Indebtedness as at such
date (after giving effect to any Incurrence or Discharge of Indebtedness on such
date) to (y) the aggregate amount of Consolidated EBITDA for the period of the
most recent four consecutive fiscal quarters ending prior to the date of such
determination for which consolidated financial statements of the Company are
available (determined, for each fiscal quarter (or portion thereof) of the four
fiscal quarters ending prior to the Issue Date, on a pro forma basis to give
effect to the Recapitalization as if it had occurred at the beginning of such
four-quarter period), provided that:
(1) if since the beginning of such period the Company or any
Restricted Subsidiary shall have made a Sale, the Consolidated EBITDA for
such period shall be reduced by an amount equal to the Consolidated EBITDA
(if positive) attributable to the assets that are the subject of such Sale
for such period or increased by an amount equal to the Consolidated EBITDA
(if negative) attributable thereto for such period;
(2) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger, consolidation or otherwise) shall have
made a Purchase (including any Purchase occurring in connection with a
transaction causing a calculation to be made hereunder), Consolidated
EBITDA for such period shall be calculated after giving pro forma effect
thereto as if such Purchase occurred on the first day of such period; and
(3) if since the beginning of such period any Person became a
Restricted Subsidiary or was merged or consolidated with or into the
Company or any Restricted Subsidiary, and since the beginning of such
period such Person shall have made any Sale or Purchase that would have
required an adjustment pursuant to clause (1) or (2) above if made by the
Company or a Restricted Subsidiary since the beginning of such period,
Consolidated EBITDA for such period shall be calculated after giving pro
forma effect thereto as if such Sale or Purchase occurred on the first day
of such period.
For purposes of this definition, whenever pro forma effect is to be
given to any Sale, Purchase or other transaction, or the amount of income or
earnings relating thereto, the pro forma calculations in respect thereof
(including without limitation in respect of anticipated cost savings or
synergies relating to any such Sale, Purchase or other transaction) shall be as
determined in good faith by a responsible financial or accounting Officer of the
Company.
"Consolidated Tangible Assets" means, as of any date of determination,
the amount equal to (x) the sum of Consolidated Quarterly Tangible Assets as at
the end of each of the most recently ended four fiscal quarters of the Company
for which a calculation thereof is available, divided by (y) four.
"Consolidated Total Indebtedness" means, as of any date of
determination, an amount equal to the aggregate principal amount of outstanding
Indebtedness of the Company and its Restricted Subsidiaries (other than Notes)
as of such date consisting of (without duplication) Indebtedness for borrowed
money (including Purchase Money Obligations and unreimbursed outstanding drawn
amounts under funded letters of credit); Capitalized Lease Obligations; debt
obligations evidenced by bonds, debentures, notes or similar instruments;
Disqualified Stock; and (in the case of any Restricted Subsidiary that is not a
Subsidiary Guarantor) Preferred Stock, determined on a Consolidated basis in
accordance with GAAP (excluding items eliminated in Consolidation, and for the
avoidance of doubt, excluding Hedging Obligations).
"Consolidation" means the consolidation of the accounts of each of the
Restricted Subsidiaries with those of the Company in accordance with GAAP;
provided that "Consolidation" will not include consolidation of the accounts of
any Unrestricted Subsidiary, but the interest of the Company or any Restricted
Subsidiary in any Unrestricted Subsidiary will be accounted for as an
investment. The term "Consolidated" has a correlative meaning. For purposes of
the Indenture for periods ending on or prior to the date on which the Company
issues consolidated financial statements that consolidiated the accounts of RSC
and each of the Restricted Subsidiaries, references to the consolidated
financial statements of the Company shall be to the consolidated financial
statements of RSC, as the context may require.
"Contribution Amounts" means the aggregate amount of capital
contributions applied by the Company to permit the Incurrence of Contribution
Indebtedness pursuant to Section 407(b)(xii).
"Contribution Indebtedness" means Indebtedness of the Company or any
Restricted Subsidiary in an aggregate principal amount not greater than twice
the aggregate amount of cash contributions (other than Excluded Contributions,
the proceeds from the issuance of Disqualified Stock or any or any cash
contribution by the Company or any Restricted Subsidiary) made to the capital of
the Company or such Restricted Subsidiary after the Issue Date (whether through
the issuance or sale of Capital Stock or otherwise); provided that such
Contribution Indebtedness (a) is incurred within 180 days after the making of
the related cash contribution and (b) is so designated as Contribution
Indebtedness pursuant to an Officer's Certificate on the date of Incurrence
thereof.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be administered, which
office on the Issue Date is located at 000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx,
XX 00000.
"Credit Facilities" means one or more of (i) the Senior Term Facility,
(ii) the Senior ABL Facility, and (iii) any other facilities or arrangements
designated by the Company, in each case with one or more banks or other lenders
or institutions providing for revolving credit loans, term loans, receivables or
fleet financings (including without limitation through the sale of receivables
or fleet assets to such institutions or to special purpose entities formed to
borrow from such institutions against such receivables or fleet assets or the
creation of any Liens in respect of such receivables or fleet assets in favor of
such institutions), letters of credit or other Indebtedness, in each case,
including all agreements, instruments and documents executed and delivered
pursuant to or in connection with any of the foregoing, including but not
limited to any notes and letters of credit issued pursuant thereto and any
guarantee and collateral agreement, patent and trademark security agreement,
mortgages or letter of credit applications and other guarantees, pledge
agreements, security agreements and collateral documents, in each case as the
same may be amended, supplemented, waived or otherwise modified from time to
time, or refunded, refinanced, restructured, replaced, renewed, repaid,
increased or extended from time to time (whether in whole or in part, whether
with the original banks, lenders or institutions or other banks, lenders or
institutions or otherwise, and whether provided under any original Credit
Facility or one or more other credit agreements, indentures, financing
agreements or other Credit Facilities or otherwise). Without limiting the
generality of the foregoing, the term "Credit Facilities" shall include any
agreement (i) changing the maturity of any Indebtedness Incurred thereunder or
contemplated thereby, (ii) adding Subsidiaries as additional borrowers or
guarantors thereunder, (iii) increasing the amount of Indebtedness Incurred
thereunder or available to be borrowed thereunder or (iv) otherwise altering the
terms and conditions thereof.
"Currency Agreement" means, in respect of a Person, any foreign
exchange contract, currency swap agreement or other similar agreement or
arrangements (including derivative agreements or arrangements), as to which such
Person is a party or a beneficiary.
"Default" means any event or condition that is, or after notice or
passage of time or both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees and
successors.
"Designated Noncash Consideration" means the Fair Market Value of
noncash consideration received by the Company or one of its Restricted
Subsidiaries in connection with an Asset Disposition that is so designated as
Designated Noncash Consideration pursuant to an Officer's Certificate, setting
forth the basis of such valuation.
"Disinterested Directors" means, with respect to any Affiliate
Transaction, one or more members of the Board of Directors of the Company or
RSC, as applicable, or one or more members of the Board of Directors of a
Parent, having no material direct or indirect financial interest in or with
respect to such Affiliate Transaction. A member of any such Board of Directors
shall not be deemed to have such a financial interest by reason of such member's
holding Capital Stock of the Company or any Parent or any options, warrants or
other rights in respect of such Capital Stock.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock (other than Management Stock) that by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable or
exercisable) or upon the happening of any event (other than following the
occurrence of a Change of Control or other similar event described under such
terms as a "change of control," or an Asset Disposition) (i) matures or is
mandatorily redeemable pursuant to a sinking fund obligation or otherwise, (ii)
is convertible or exchangeable for Indebtedness or Disqualified Stock or (iii)
is redeemable at the option of the holder thereof (other than following the
occurrence of a Change of Control or other similar event described under such
terms as a "change of control," or an Asset Disposition), in whole or in part,
in each case on or prior to the final Stated Maturity of the Notes.
"Domestic Entity" means any Person other than a Foreign Entity.
"Domestic Subsidiary" means any Restricted Subsidiary of the Company
other than a Foreign Subsidiary.
"Equipment" means any equipment owned by or leased to the Company or
any of its Subsidiaries that is revenue earning equipment, or is classified as
"revenue earning equipment" in the consolidated financial statements of the
Company, including any such equipment consisting of (i) construction,
industrial, commercial and office equipment, (ii) air tools, attachments,
backhoes, booms, compaction, compressor, concrete, conveyors, cranes, dozers,
earth moving, electrical equipment, excavators, forklifts, generators, lighting,
loaders, material handling, scissors, skidsteers, tractors, trenchers, trucks,
welding, (iii) air compressors, pumps and small tools, and (iv) other personal
property.
"Equity Offering" means a sale of Capital Stock (x) that is a sale of
Capital Stock of RSC (other than Disqualified Stock or sales to Subsidiaries of
RSC), or (y) proceeds of which in an amount equal to or exceeding the Redemption
Amount are contributed to the equity capital of RSC or any of its Restricted
Subsidiaries (other than proceeds from a sale to Subsidiaries of Capital Stock
of RSC.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear System, or any successor securities clearing agency.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means the Issuers' 9 1/2% Senior Notes due 2014,
containing terms substantially identical to the Initial Notes or any Initial
Additional Notes (except that (i) such Exchange Notes may omit terms with
respect to transfer restrictions and may be registered under the Securities Act,
and (ii) certain provisions relating to an increase in the stated rate of
interest thereon may be eliminated), that are issued and exchanged for (a) the
Initial Notes, as provided for in a registration rights agreement relating to
such Initial Notes and this Indenture, or (b) such Initial Additional Notes as
may be provided in any registration rights agreement relating to such Additional
Notes that are Notes and this Indenture (including any amendment or supplement
hereto.)
"Excluded Contribution" means Net Cash Proceeds, or the Fair Market
Value of property or assets, received by the Company as capital contributions to
the Company after the Issue Date or from the issuance or sale (other than to a
Restricted Subsidiary) of Capital Stock (other than Disqualified Stock) of the
Company, in each case to the extent designated as an Excluded Contribution
pursuant to an Officer's Certificate of the Company and not previously included
in the calculation set forth in Section 409(a)(3)(B)(x) for purposes of
determining whether a Restricted Payment may be made.
"Fair Market Value" means, with respect to any asset or property, the
fair market value of such asset or property as determined in good faith by the
Board of Directors, whose determination will be conclusive.
"Financing Disposition" means any sale, transfer, conveyance or other
disposition of, or creation or incurrence of any Lien on, property or assets by
the Company or any Subsidiary thereof to or in favor of any Special Purpose
Entity, or by any Special Purpose Subsidiary, in each case in connection with
the Incurrence by a Special Purpose Entity of Indebtedness, or obligations to
make payments to the obligor on Indebtedness, which may be secured by a Lien in
respect of such property or assets.
"Foreign Borrowing Base" means the sum of (1) 60% of the book value of
Inventory (excluding Equipment) of Foreign Subsidiaries, (2) 85% of the book
value of Receivables of Foreign Subsidiaries, (3) 95% of the book value of
Equipment of Foreign Subsidiaries and (4) cash, Cash Equivalents and Temporary
Cash Investments of Foreign Subsidiaries (in each case, determined as of the end
of the most recently ended fiscal month of the Company for which internal
consolidated financial statements of the Company are available, and, in the case
of any determination relating to any Incurrence of Indebtedness, on a pro forma
basis including (x) any property or assets of a type described above acquired
since the end of such fiscal month and (y) any property or assets of a type
described above being acquired in connection therewith).
"Foreign Entity" means (a) any Person that is not organized under the
laws of the United States of America or any state thereof or the District of
Columbia and (b) any Person that has no material assets other than securities or
Indebtedness of one or more Foreign Entities (or
Subsidiaries thereof), and other assets relating to an ownership interest in any
such securities, Indebtedness or Subsidiaries.
"Foreign Subsidiary" means (a) any Restricted Subsidiary of the
Company that is not organized under the laws of the United States of America or
any state thereof or the District of Columbia and (b) any Restricted Subsidiary
of the Company that has no material assets other than securities or Indebtedness
of one or more Foreign Subsidiaries (or Subsidiaries thereof), and other assets
relating to an ownership interest in any such securities, Indebtedness or
Subsidiaries.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect on the Issue Date (for purposes of the
definitions of the terms "Borrowing Base," "Consolidated Coverage Ratio,"
"Consolidated EBITDA," "Consolidated Interest Expense," "Consolidated Net
Income," "Consolidated Quarterly Tangible Assets," "Consolidated Secured
Indebtedness," "Consolidated Secured Leverage Ratio," "Consolidated Tangible
Assets," "Consolidated Total Indebtedness," and "Foreign Borrowing Base," all
defined terms in this Indenture to the extent used in or relating to any of the
foregoing definitions, and all ratios and computations based on any of the
foregoing definitions) and as in effect from time to time (for all other
purposes of this Indenture), including those set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
approved by a significant segment of the accounting profession. All ratios and
computations based on GAAP contained in this Indenture shall be computed in
conformity with GAAP.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person; provided that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Guarantor Subordinated Obligations" means, with respect to a
Subsidiary Guarantor, any Indebtedness of such Subsidiary Guarantor (whether
outstanding on the Issue Date or thereafter Incurred) that is expressly
subordinated in right of payment to the obligations of such Subsidiary Guarantor
under its Subsidiary Guarantee pursuant to a written agreement.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement, Currency Agreement or
Commodities Agreement.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered in the Note Register.
"Holding" means Atlas Copco North America, Inc. and any successor in
interest thereto.
"Incur" means issue, assume, enter into any Guarantee of, incur or
otherwise become liable for; and the terms "Incurs," "Incurred" and "Incurrence"
shall have a correlative meaning; provided that any Indebtedness or Capital
Stock of a Person existing at the time such Person becomes a Subsidiary (whether
by merger, consolidation, acquisition or otherwise) shall
be deemed to be Incurred by such Subsidiary at the time it becomes a Subsidiary.
Accrual of interest, the accretion of accreted value and the payment of interest
in the form of additional Indebtedness will not be deemed to be an Incurrence of
Indebtedness. Any Indebtedness issued at a discount (including Indebtedness on
which interest is payable through the issuance of additional Indebtedness) shall
be deemed Incurred at the time of original issuance of the Indebtedness at the
initial accreted amount thereof.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(i) the principal of indebtedness of such Person for borrowed money,
(ii) the principal of obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments,
(iii) all reimbursement obligations of such Person in respect of
letters of credit, bankers' acceptances or other similar instruments (the
amount of such obligations being equal at any time to the aggregate then
undrawn and unexpired amount of such letters of credit, bankers'
acceptances or other instruments plus the aggregate amount of drawings
thereunder that have not then been reimbursed),
(iv) all obligations of such Person to pay the deferred and unpaid
purchase price of property (except Trade Payables), which purchase price is
due more than one year after the date of placing such property in final
service or taking final delivery and title thereto,
(v) all Capitalized Lease Obligations of such Person,
(vi) the redemption, repayment or other repurchase amount of such
Person with respect to any Disqualified Stock of such Person or (if such
Person is a Subsidiary of the Company other than a Subsidiary Guarantor)
any Preferred Stock of such Subsidiary, but excluding, in each case, any
accrued dividends (the amount of such obligation to be equal at any time to
the maximum fixed involuntary redemption, repayment or repurchase price for
such Capital Stock, or if less (or if such Capital Stock has no such fixed
price), to the involuntary redemption, repayment or repurchase price
therefor calculated in accordance with the terms thereof as if then
redeemed, repaid or repurchased, and if such price is based upon or
measured by the fair market value of such Capital Stock, such fair market
value shall be as determined in good faith by the Board of Directors or the
board of directors or other governing body of the issuer of such Capital
Stock),
(vii) all Indebtedness of other Persons secured by a Lien on any asset
of such Person, whether or not such Indebtedness is assumed by such Person;
provided that the amount of Indebtedness of such Person shall be the lesser
of (A) the fair market value of such asset at such date of determination
(as determined in good faith by the Company) and (B) the amount of such
Indebtedness of such other Persons,
(viii) all Guarantees by such Person of Indebtedness of other Persons,
to the extent so Guaranteed by such Person, and
(ix) to the extent not otherwise included in this definition, net
Hedging Obligations of such Person (the amount of any such obligation to be
equal at any time to the termination value of such agreement or arrangement
giving rise to such Hedging Obligation that would be payable by such Person
at such time).
The amount of Indebtedness of any Person at any date shall be
determined as set forth above or otherwise provided in this Indenture, or
otherwise shall equal the amount thereof that would appear as a liability on a
balance sheet of such Person (excluding any notes thereto) prepared in
accordance with GAAP.
"Initial Additional Notes" means Additional Notes issued in an
offering not registered under the Securities Act (and any Notes issued in
respect thereof pursuant to Section 304, 305, 306, 312(c), 312(d) or 1008).
"Initial Notes" means the Notes issued on the Issue Date (and any
Notes issued in respect thereof pursuant to Section 304, 305, 306, 312(c),
312(d) or 1008).
"interest," with respect to the Notes, means interest on the Notes
and, except for purposes of Article IX, additional or special interest pursuant
to the terms of any Note.
"Interest Payment Date" means, when used with respect to any Note and
any installment of interest thereon, the date specified in such Note as the
fixed date on which such installment of interest is due and payable, as set
forth in such Note.
"Interest Rate Agreement" means, with respect to any Person, any
interest rate protection agreement, future agreement, option agreement, swap
agreement, cap agreement, collar agreement, hedge agreement or other similar
agreement or arrangement (including derivative agreements or arrangements), as
to which such Person is party or a beneficiary.
"Inventory" means goods held for sale, lease or use by a Person in the
ordinary course of business, net of any reserve for goods that have been
segregated by such Person to be returned to the applicable vendor for credit, as
determined in accordance with GAAP.
"Investment" in any Person by any other Person means any direct or
indirect advance, loan or other extension of credit (other than to customers,
dealers, licensees, franchisees, suppliers, directors, officers or employees of
any Person in the ordinary course of business) or capital contribution (by means
of any transfer of cash or other property to others or any payment for property
or services for the account or use of others) to, or any purchase or acquisition
of Capital Stock, Indebtedness or other similar instruments issued by, such
Person. For purposes of the definition of "Unrestricted Subsidiary" and Section
409 only, (i) "Investment" shall include the portion (proportionate to the
Company's equity interest in such Subsidiary) of the Fair Market Value of the
net assets of any Subsidiary of the Company at the time that such Subsidiary is
designated an Unrestricted Subsidiary; provided that upon a redesignation of
such Subsidiary as a Restricted Subsidiary, the Company shall be deemed to
continue to have a permanent
"Investment" in an Unrestricted Subsidiary in an amount (if positive) equal to
(x) the Company's "Investment" in such Subsidiary at the time of such
redesignation less (y) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the Fair Market Value of the net assets of such
Subsidiary at the time of such redesignation, and (ii) any property transferred
to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value
at the time of such transfer. Guarantees shall not be deemed to be Investments.
The amount of any Investment outstanding at any time shall be the original cost
of such Investment, reduced (at the Company's option) by any dividend,
distribution, interest payment, return of capital, repayment or other amount or
value received in respect of such Investment; provided that to the extent that
the amount of Restricted Payments outstanding at any time is so reduced by any
portion of any such amount or value that would otherwise be included in the
calculation of Consolidated Net Income, such portion of such amount or value
shall not be so included for purposes of calculating the amount of Restricted
Payments that may be made pursuant to Section 409(a).
"Investors" means (i) the Ripplewood Investors and Oak Hill Investors,
(ii) any Person that acquires Voting Stock of Holding on or prior to the Issue
Date, and any Affiliate of such Person, and (iii) any of their respective
successors in interest.
"Issue Date" means the first date on which Initial Notes are issued.
"Issuers Request" and "Issuers Order" mean, respectively, a written
request or order signed in the name of the Issuers by an Officer of each of the
Issuers.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"Management Advances" means (1) loans or advances made to directors,
officers or employees of any Parent, the Company or any Restricted Subsidiary
(x) in respect of travel, entertainment or moving-related expenses incurred in
the ordinary course of business, (y) in respect of moving-related expenses
incurred in connection with any closing or consolidation of any facility, or (z)
in the ordinary course of business and (in the case of this clause (z)) not
exceeding $7.5 million in the aggregate outstanding at any time, (2) Management
Guarantees, or (3) other Guarantees of borrowings by Management Investors in
connection with the purchase of Management Stock, which Guarantees are permitted
under Section 407.
"Management Agreements" means, collectively, (i) the Monitoring
Agreement, dated as of the Issue Date, by and among Holding, RSC, Ripplewood and
Oak Hill, (ii) the Indemnification Agreement, dated as of the Issue Date, among
Holding, RSC, Ripplewood, Oak Hill and the Acquisition Entities, (iii) the
Transaction Agreement, dated as of the Issue Date, by and among Holding, RSC,
Ripplewood and Oak Hill and (iv) the Stockholders Agreement, dated as of the
Issue Date, by and among Holding, Atlas Copco Finance S.a.r.l. and the Investors
party thereto and any other Person party thereto from time to time, in each case
as the same may be amended, supplemented, waived or otherwise modified from time
to time in accordance with the terms thereof and of this Indenture and the
related documents.
"Management Guarantees" means guarantees made on behalf of, or in
respect of loans or advances made to, directors, officers or employees of any
Parent, the Company or any Restricted Subsidiary (1) in respect of travel,
entertainment and moving-related expenses incurred in the ordinary course of
business, or (2) in the ordinary course of business and (in the case of this
clause (2)) not exceeding $7.5 million in the aggregate outstanding at any time.
"Management Investors" means the officers, directors, employees and
other members of the management of any Parent, the Company or any of their
respective Subsidiaries, or family members or relatives thereof (provided that,
solely for purposes of the definition of "Permitted Holders," such relatives
shall include only those Persons who are or become Management Investors in
connection with estate planning for or inheritance from other Management
Investors, as determined in good faith by the Company, which determination shall
be conclusive), or trusts, partnerships or limited liability companies for the
benefit of any of the foregoing, or any of their heirs, executors, successors
and legal representatives, who at any date beneficially own or have the right to
acquire, directly or indirectly, Capital Stock of the Company or any Parent.
"Management Stock" means Capital Stock of the Company or any Parent
(including any options, warrants or other rights in respect thereof) held by any
of the Management Investors.
"Moody's" means Xxxxx'x Investors Service, Inc., and its successors.
"Net Available Cash" from an Asset Disposition means cash payments
received (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise, but only as
and when received, but excluding any other consideration received in the form of
assumption by the acquiring person of Indebtedness or other obligations relating
to the properties or assets that are the subject of such Asset Disposition or
received in any other noncash form) therefrom, in each case net of (i) all
legal, title and recording tax expenses, commissions and other fees and expenses
incurred, and all Federal, state, provincial, foreign and local taxes required
to be paid or to be accrued as a liability under GAAP, as a consequence of such
Asset Disposition (including as a consequence of any transfer of funds in
connection with the application thereof in accordance with Section 411), (ii)
all payments made, and all installment payments required to be made, on any
Indebtedness that is secured by any assets subject to such Asset Disposition, in
accordance with the terms of any Lien upon such assets, or that must by its
terms, or in order to obtain a necessary consent to such Asset Disposition, or
by applicable law, be repaid out of the proceeds from such Asset Disposition,
(iii) all distributions and other payments required to be made to minority
interest holders in Subsidiaries or joint ventures as a result of such Asset
Disposition, or to any other Person (other than the Company or a Restricted
Subsidiary) owning a beneficial interest in the assets disposed of in such Asset
Disposition, (iv) any liabilities or obligations associated with the assets
disposed of in such Asset Disposition and retained by the Company or any
Restricted Subsidiary after such Asset Disposition, including without limitation
pension and other post-employment benefit liabilities, liabilities related to
environmental matters, and liabilities relating to any indemnification
obligations associated with such Asset Disposition, and (v) the amount of any
purchase price or similar adjustment (x) claimed by any Person to be owed by the
Company or any Restricted Subsidiary,
until such time as such claim shall have been settled or otherwise finally
resolved, or (y) paid or payable by the Company, in either case in respect of
such Asset Disposition.
"Net Cash Proceeds," with respect to any issuance or sale of any
securities of the Company or any Subsidiary by the Company or any Subsidiary, or
any capital contribution, means the cash proceeds of such issuance, sale or
contribution net of attorneys' fees, accountants' fees, underwriters' or
placement agents' fees, discounts or commissions and brokerage, consultant and
other fees actually incurred in connection with such issuance, sale or
contribution and net of taxes paid or payable as a result thereof.
"Non-U.S. Person" means a Person who is not a U.S. person, as defined
in Regulation S.
"Notes" means the Initial Notes, any Additional Notes, the Exchange
Notes and any notes issued in respect thereof pursuant to Section 304, 305, 306,
312(c), 312(d) or 1008.
"Oak Hill" means Oak Hill Capital Management LLC.
"Oak Hill Investor" means, collectively, (i) Oak Hill Capital Partners
II, L.P., a Delaware limited partnership, or any successor thereto, (ii) any
Affiliate thereof, and (iii) any successor in interest to any thereof.
"Obligations" means, with respect to any Indebtedness, any principal,
premium (if any), interest (including interest accruing on or after the filing
of any petition in bankruptcy or for reorganization relating to the Company or
any Restricted Subsidiary whether or not a claim for post-filing interest is
allowed in such proceedings), fees, charges, expenses, reimbursement
obligations, Guarantees of such Indebtedness (or of Obligations in respect
thereof), other monetary obligations of any nature and all other amounts payable
thereunder or in respect thereof.
"Offering Memorandum" means the Offering Memorandum of the Issuers,
dated November 17, 2006, relating to the offering of the Notes.
"Officer" means, with respect to the Issuers or any other obligor upon
the Notes, the Chairman of the Board, the President, the Chief Executive
Officer, the Chief Financial Officer, any Vice President, the Controller, the
Treasurer or the Secretary (a) of such Person or (b) if such Person is owned or
managed by a single entity, of such entity (or any other individual designated
as an "Officer" for the purposes of this Indenture by the Board of Directors).
"Officer's Certificate" means, with respect to the Issuers or any
other obligor upon the Notes, a certificate signed by one Officer of each
Issuer.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Issuers or the Trustee.
"Original Notes" means the Initial Notes and any Exchange Notes issued
in exchange therefor.
"Outstanding," when used with respect to Notes means, as of the date
of determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
in trust for the Holders of such Notes, provided that, if such Notes are to
be redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor reasonably satisfactory to the Trustee has
been made; and
(iii) Notes in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture.
A Note does not cease to be Outstanding because the Issuers or any
Affiliate of either of the Issuers holds the Note, provided that in determining
whether the Holders of the requisite amount of Outstanding Notes have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Notes owned by the Issuers or any Affiliate of either of the Issuers shall be
disregarded and deemed not to be Outstanding, except that, for the purpose of
determining whether the Trustee shall be protected in relying on any such
request, demand, authorization, direction, notice, consent or waiver, only Notes
which the Trustee actually knows are so owned shall be so disregarded. Notes so
owned that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the reasonable satisfaction of the Trustee the pledgee's
right to act with respect to such Notes and that the pledgee is not either of
the Issuers or an Affiliate of either of the Issuers.
"Parent" means any of Holding, RSC Holdings I, LLC, RSC Holdings II,
LLC, and any Other Parent and any other Person that is a Subsidiary of Holding,
RSC Holdings I, LLC, RSC Holdings II, LLC, or any Other Parent and of which the
Company is a Subsidiary. As used herein, "Other Parent" means a Person of which
the Company becomes a Subsidiary after the Issue Date, provided that either (x)
immediately after the Company first becomes a Subsidiary of such Person, more
than 50% of the Voting Stock of such Person shall be held by one or more Persons
that held more than 50% of the Voting Stock of a Parent of the Company
immediately prior to the Company first becoming such Subsidiary or (y) such
Person shall be deemed not to be an Other Parent for the purpose of determining
whether a Change of Control shall have occurred by reason of the Company first
becoming a Subsidiary of such Person.
"Parent Expenses" means (i) costs (including all professional fees
and expenses) incurred by any Parent in connection with its reporting
obligations under, or in connection with compliance with, applicable laws or
applicable rules of any governmental, regulatory or self-regulatory body or
stock exchange, this Indenture or any other agreement or instrument relating to
Indebtedness of the Company or any Restricted Subsidiary, including in respect
of any reports filed with respect to the Securities Act, Exchange Act or the
respective rules and regulations promulgated thereunder, (ii) expenses incurred
by any Parent in connection with the acquisition, development, maintenance,
ownership, prosecution, protection and defense of its intellectual property and
associated rights (including but not limited to trademarks, service marks, trade
names, trade dress, patents, copyrights and similar rights, including
registrations and registration or renewal applications in respect thereof;
inventions, processes, designs, formulae, trade secrets, know-how, confidential
information, computer software, data and documentation, and any other
intellectual property rights; and licenses of any of the foregoing) to the
extent such intellectual property and associated rights relate to the business
or businesses of the Company or any Subsidiary thereof, (iii) indemnification
obligations of any Parent owing to directors, officers, employees or other
Persons under its charter or by-laws or pursuant to written agreements with any
such Person, or obligations in respect of director and officer insurance
(including premiums therefor), (iv) other operational expenses of any Parent
incurred in the ordinary course of business, and (v) fees and expenses incurred
by any Parent in connection with any offering of Capital Stock or Indebtedness,
(x) where the net proceeds of such offering are intended to be received by or
contributed or loaned to the Company or a Restricted Subsidiary, or (y) in a
prorated amount of such expenses in proportion to the amount of such net
proceeds intended to be so received, contributed or loaned, or (z) otherwise on
an interim basis prior to completion of such offering so long as any Parent
shall cause the amount of such expenses to be repaid to the Company or the
relevant Restricted Subsidiary out of the proceeds of such offering promptly if
completed.
"Paying Agent" means any Person authorized by the Issuers to pay the
principal of (and premium, if any) or interest on any Notes on behalf of the
Issuers; provided that neither the Issuers nor any of their Affiliates shall act
as Paying Agent for purposes of Section 1102 or Section 1205.
"Permitted Holder" means any of the following: (i) any of the
Investors; (ii) any of the Management Investors, Ripplewood, Oak Hill and their
respective Affiliates; (iii) any investment fund or vehicle managed, sponsored
or advised by Ripplewood, Oak Hill or any Affiliate thereof, and any Affiliate
of or successor to any such investment fund or vehicle; (iv) any Parent; and (v)
any Person acting in the capacity of an underwriter in connection with a public
or private offering of Capital Stock of any Parent or the Company. In addition,
any "person" (as such term is used in Sections 13(d) and 14(d) of the Exchange
Act) whose status as a "beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the Exchange Act) constitutes or results in a Change of Control in respect
of which a Change of Control Offer is made in accordance with the requirements
of this Indenture, together with its Affiliates, shall thereafter constitute
Permitted Holders.
"Permitted Investment" means an Investment by the Company or any
Restricted Subsidiary in, or consisting of, any of the following:
(i) a Restricted Subsidiary, the Company, or a Person that will, upon
the making of such Investment, become a Restricted Subsidiary;
(ii) another Person if as a result of such Investment such other
Person is merged or consolidated with or into, or transfers or conveys all
or substantially all its assets to, or is liquidated into, the Company or a
Restricted Subsidiary;
(iii) Temporary Cash Investments or Cash Equivalents;
(iv) receivables owing to the Company or any Restricted Subsidiary, if
created or acquired in the ordinary course of business;
(v) any securities or other Investments received as consideration in,
or retained in connection with, sales or other dispositions of property or
assets, including Asset Dispositions made in compliance with Section 411;
(vi) securities or other Investments received in settlement of debts
created in the ordinary course of business and owing to, or of other claims
asserted by, the Company or any Restricted Subsidiary, or as a result of
foreclosure, perfection or enforcement of any Lien, or in satisfaction of
judgments, including in connection with any bankruptcy proceeding or other
reorganization of another Person;
(vii) Investments in existence or made pursuant to legally binding
written commitments in existence on the Issue Date;
(viii) Currency Agreements, Interest Rate Agreements, Commodities
Agreements and related Hedging Obligations, which obligations are Incurred
in compliance with Section 407;
(ix) pledges or deposits (x) with respect to leases or utilities
provided to third parties in the ordinary course of business or (y)
otherwise described in the definition of "Permitted Liens" or made in
connection with Liens permitted under Section 413;
(x) (1) Investments in or by any Special Purpose Subsidiary, or in
connection with a Financing Disposition by or to or in favor of any Special
Purpose Entity, including Investments of funds held in accounts permitted
or required by the arrangements governing such Financing Disposition or any
related Indebtedness, or (2) any promissory note issued by the Company, or
any Parent, provided that if such Parent receives cash from the relevant
Special Purpose Entity in exchange for such note, an equal cash amount is
contributed by any Parent to the Company;
(xi) Notes;
(xii) any Investment to the extent made using Capital Stock of the
Company (other than Disqualified Stock), or Capital Stock of any Parent, as
consideration;
(xiii) Management Advances;
(xiv) any transaction to the extent it constitutes an Investment that
is permitted by and made in accordance with Section 412(b) (except
transactions described in clauses (i), (v) and (vi) of such paragraph); and
(xv) other Investments in an aggregate amount outstanding at any time
not to exceed the greater of $100 million or 5.50% of Consolidated Tangible
Assets.
If any Investment pursuant to clause (xv) above is made in any Person
that is not a Restricted Subsidiary and such Person thereafter becomes a
Restricted Subsidiary, such Investment shall thereafter be deemed to have been
made pursuant to clause (i) above and not clause (xv) above for so long as such
Person continues to be a Restricted Subsidiary.
"Permitted Liens" means:
(a) Liens for taxes, assessments or other governmental charges not yet
delinquent or the nonpayment of which in the aggregate would not reasonably
be expected to have a material adverse effect on the Company and its
Restricted Subsidiaries or that are being contested in good faith and by
appropriate proceedings if adequate reserves with respect thereto are
maintained on the books of the Company or a Subsidiary thereof, as the case
may be, in accordance with GAAP;
(b) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
in respect of obligations that are not overdue for a period of more than 60
days or that are bonded or that are being contested in good faith and by
appropriate proceedings;
(c) pledges, deposits or Liens in connection with workers'
compensation, unemployment insurance and other social security and other
similar legislation or other insurance-related obligations (including,
without limitation, pledges or deposits securing liability to insurance
carriers under insurance or self-insurance arrangements);
(d) pledges, deposits or Liens to secure the performance of bids,
tenders, trade, government or other contracts (other than for borrowed
money), obligations for utilities, leases, licenses, statutory obligations,
completion guarantees, surety, judgment, appeal or performance bonds, other
similar bonds, instruments or obligations, and other obligations of a like
nature incurred in the ordinary course of business;
(e) easements (including reciprocal easement agreements),
rights-of-way, building, zoning and similar restrictions, utility
agreements, covenants, reservations, restrictions, encroachments, charges,
and other similar encumbrances or title defects incurred, or leases or
subleases granted to others, in the ordinary course of business, which do
not in the aggregate materially interfere with the ordinary conduct of the
business of the Company and its Subsidiaries, taken as a whole;
(f) Liens existing on, or provided for under written arrangements
existing on, the Issue Date, or (in the case of any such Liens securing
Indebtedness of the Company or any of its Subsidiaries existing or arising
under written arrangements existing on the Issue Date) securing any
Refinancing Indebtedness in respect of such Indebtedness so long as the
Lien securing such Refinancing Indebtedness is limited to all or part of
the same property or assets (plus improvements, accessions, proceeds or
dividends or distributions in respect thereof) that secured (or under such
written arrangements could secure) the original Indebtedness;
(g) (i) mortgages, liens, security interests, restrictions,
encumbrances or any other matters of record that have been placed by any
developer, landlord or other third party on property over which the Company
or any Restricted Subsidiary of the Company has easement rights or on any
leased property and subordination or similar agreements relating thereto
and (ii) any condemnation or eminent domain proceedings affecting any real
property;
(h) Liens securing Indebtedness (including Liens securing any
Obligations in respect thereof) consisting of Hedging Obligations, Purchase
Money Obligations or Capitalized Lease Obligations Incurred in compliance
with Section 407;
(i) Liens arising out of judgments, decrees, orders or awards in
respect of which the Company shall in good faith be prosecuting an appeal
or proceedings for review, which appeal or proceedings shall not have been
finally terminated, or if the period within which such appeal or
proceedings may be initiated shall not have expired;
(j) leases, subleases, licenses or sublicenses to or from third
parties;
(k) Liens securing Indebtedness (including Liens securing any
Obligations in respect thereof) consisting of (1) Indebtedness Incurred in
compliance with Section 407(b)(i), Section 407(b)(iv), Section 407(b)(vii),
Section 407(b)(viii), Section 407(b)(ix), or Section 407(b)(xi) or Section
407(b)(iii) (other than Refinancing Indebtedness Incurred in respect of
Indebtedness described in Section 407(a)), (2) Bank Indebtedness Incurred
in compliance with Section 407(b), (3) the Notes, (4) Indebtedness of any
Restricted Subsidiary that is not a Subsidiary Guarantor, (5) Indebtedness
or other obligations of any Special Purpose Entity, or (6) obligations in
respect of Management Advances or Management Guarantees, or in each case
including Liens securing any Guarantee of any thereof;
(l) Liens existing on property or assets of a Person at the time such
Person becomes a Subsidiary of the Company (or at the time the Company or a
Restricted Subsidiary acquires such property or assets, including any
acquisition by means of a merger or consolidation with or into the Company
or any Restricted Subsidiary); provided, however, that such Liens are not
created in connection with, or in contemplation of, such other Person
becoming such a Subsidiary (or such acquisition of such property or
assets), and that such Liens are limited to all or part of the same
property or assets (plus improvements, accessions, proceeds or dividends or
distributions in respect thereof) that secured (or, under the written
arrangements under which such Liens arose, could secure) the obligations to
which such Liens relate;
(m) Liens on Capital Stock, Indebtedness or other securities of an
Unrestricted Subsidiary that secure Indebtedness or other obligations of
such Unrestricted Subsidiary;
(n) any encumbrance or restriction (including, but not limited to, put
and call agreements) with respect to Capital Stock of any joint venture or
similar arrangement pursuant to any joint venture or similar agreement;
(o) Liens securing Indebtedness (including Liens securing any
Obligations in respect thereof) consisting of Refinancing Indebtedness
Incurred in respect of any Indebtedness secured by, or securing any
refinancing, refunding, extension, renewal or replacement (in whole or in
part) of any other obligation secured by, any other Permitted Liens,
provided that any such new Lien is limited to all or part of the same
property or assets (plus improvements, accessions, proceeds or dividends or
distributions in respect thereof) that secured (or, under the written
arrangements under which the original Lien arose, could secure) the
obligations to which such Liens relate;
(p) Liens (1) arising by operation of law (or by agreement to the same
effect) in the ordinary course of business, (2) on property or assets under
construction (and related rights) in favor of a contractor or developer or
arising from progress or partial payments by a third party relating to such
property or assets, (3) on receivables (including related rights), (4) on
cash set aside at the time of the Incurrence of any Indebtedness or
government securities purchased with such cash, in either case to the
extent that such cash or government securities prefund the payment of
interest on such Indebtedness and are held in an escrow account or similar
arrangement to be applied for such purpose, (5) securing or arising by
reason of any netting or set-off arrangement entered into in the ordinary
course of banking or other trading activities, (6) in favor of the Company
or any Subsidiary (other than Liens on property or assets of the Company or
any Subsidiary Guarantor in favor of any Subsidiary that is not a
Subsidiary Guarantor), (7) arising out of conditional sale, title
retention, consignment or similar arrangements for the sale of goods
entered into in the ordinary course of business, (8) relating to pooled
deposit or sweep accounts to permit satisfaction of overdraft, cash pooling
or similar obligations incurred in the ordinary course of business, (9)
attaching to commodity trading or other brokerage accounts incurred in the
ordinary course of business or (10) arising in connection with repurchase
agreements permitted under Section 407 on assets that are the subject of
such repurchase agreements;
(q) other Liens securing obligations incurred in the ordinary course
of business, which obligations do not exceed $50.0 million at any time
outstanding; and
(r) Liens securing Indebtedness (including Liens securing any
Obligations in respect thereof) consisting of Indebtedness Incurred in
compliance with Section 407, provided that on the date of the Incurrence of
such Indebtedness after giving effect to such Incurrence (or on the date of
the initial borrowing of such Indebtedness after giving pro forma effect to
the Incurrence of the entire committed amount of such Indebtedness), the
Consolidated Secured Leverage Ratio shall not exceed 3.5 to 1.0.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Place of Payment" means a city or any political subdivision thereof
in which any Paying Agent appointed pursuant to Article III is located.
"Predecessor Notes" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Preferred Stock" as applied to the Capital Stock of any corporation
means Capital Stock of any class or classes (however designated) that by its
terms is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Purchase Money Obligations" means any Indebtedness Incurred to
finance or refinance the acquisition, leasing, construction or improvement of
property (real or personal) or assets, and whether acquired through the direct
acquisition of such property or assets or the acquisition of the Capital Stock
of any Person owning such property or assets, or otherwise.
"QIB" or "Qualified Institutional Buyer" means a "qualified
institutional buyer," as that term is defined in Rule 144A.
"Recapitalization" means the recapitalization of Holding effected in
accordance with the terms of the Recapitalization Agreement.
"Recapitalization Agreement" means the Recapitalization Agreement,
dated as of October 6, 2006, among Atlas Copco AB, Atlas Copco Finance S.a.r.l.,
RSC Acquisition LLC, RSC Acquisition II LLC, OHCP II RSC, LLC, OHCMP II RSC,
LLC, OHCP II RSC COI, LLC, and Holding.
"Receivable" means a right to receive payment pursuant to an
arrangement with another Person pursuant to which such other Person is obligated
to pay, as determined in accordance with GAAP.
"Redemption Date." when used with respect to any Note to be redeemed
or purchased, means the date fixed for such redemption or purchase by or
pursuant to this Indenture and the Notes.
"refinance" means refinance, refund, replace, renew, repay, modify,
restate, defer, substitute, supplement, reissue, resell or extend (including
pursuant to any defeasance or discharge mechanism); and the terms "refinances,"
"refinanced" and "refinancing" as used for any purpose in this Indenture shall
have a correlative meaning.
"Refinancing Indebtedness" means Indebtedness that is Incurred to
refinance any Indebtedness existing on the date of this Indenture or Incurred in
compliance with this Indenture (including Indebtedness of the Company that
refinances Indebtedness of any Restricted Subsidiary (to the extent permitted in
this Indenture) and Indebtedness of any Restricted Subsidiary that refinances
Indebtedness of another Restricted Subsidiary) including Indebtedness that
refinances Refinancing Indebtedness; provided that (1) if the Indebtedness being
refinanced is Subordinated
Obligations or Guarantor Subordinated Obligations, the Refinancing Indebtedness
has a final Stated Maturity at the time such Refinancing Indebtedness is
Incurred that is equal to or greater than the final Stated Maturity of the
Indebtedness being refinanced (or if shorter, the Notes), (2) such Refinancing
Indebtedness is Incurred in an aggregate principal amount (or if issued with
original issue discount, an aggregate issue price) that is equal to or less than
the sum of (x) the aggregate principal amount (or if issued with original issue
discount, the aggregate accreted value) then outstanding of the Indebtedness
being refinanced, plus (y) fees, underwriting discounts, premiums and other
costs and expenses incurred in connection with such Refinancing Indebtedness and
(3) Refinancing Indebtedness shall not include (x) Indebtedness of a Restricted
Subsidiary that is not a Subsidiary Guarantor that refinances Indebtedness of
the Company or a Subsidiary Guarantor that could not have been initially
Incurred by such Restricted Subsidiary pursuant to Section 407 or (y)
Indebtedness of the Company or a Restricted Subsidiary that refinances
Indebtedness of an Unrestricted Subsidiary.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the date specified for that purpose in Section 301.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Certificate" means a certificate substantially in the
form attached hereto as Exhibit F.
"Related Business" means those businesses in which the Company or any
of its Subsidiaries is engaged on the date of this Indenture, or that are
related, complementary, incidental or ancillary thereto or extensions,
developments or expansions thereof.
"Related Taxes" means (x) any taxes, charges or assessments, including
but not limited to sales, use, transfer, rental, ad valorem, value-added, stamp,
property, consumption, franchise, license, capital, net worth, gross receipts,
excise, occupancy, intangibles or similar taxes, charges or assessments (other
than federal, state or local taxes measured by income and federal, state or
local withholding imposed by any government or other taxing authority on
payments made by any Parent other than to another Parent), required to be paid
by any Parent by virtue of its being incorporated or having Capital Stock
outstanding (but not by virtue of owning stock or other equity interests of any
corporation or other entity other than the Company, any of its Subsidiaries or
any Parent), or being a holding company parent of the Company, any of its
Subsidiaries or any Parent or receiving dividends from or other distributions in
respect of the Capital Stock of the Company, any of its Subsidiaries or any
Parent, or having guaranteed any obligations of the Company or any Subsidiary
thereof, or having made any payment in respect of any of the items for which the
Company or any of its Subsidiaries is permitted to make payments to any Parent
pursuant to Section 409, or acquiring, developing, maintaining, owning,
prosecuting, protecting or defending its intellectual property and associated
rights (including but not limited to receiving or paying royalties for the use
thereof) relating to the business or businesses of the Company or any Subsidiary
thereof, (y) any taxes attributable to any taxable period (or portion thereof)
ending on or prior to the Issue Date, or to Holding's or any Parent's receipt
of, entitlement to, or obligation to make any payment in connection with the
Transactions, including any payment received after the Issue Date pursuant to
any agreement relating to the Transactions, or (z) any other federal, state,
foreign, provincial or local taxes measured by income for which any
Parent is liable up to an amount not to exceed, with respect to federal taxes,
the amount of any such taxes that the Company and its Subsidiaries would have
been required to pay on a separate company basis, or on a consolidated basis as
if the Company had filed a consolidated return on behalf of an affiliated group
(as defined in Section 1504 of the Code or an analogous provision of state,
local or foreign law) of which it were the common parent, or with respect to
state and local taxes, the amount of any such taxes that the Company and its
Subsidiaries would have been required to pay on a separate company basis, or on
a combined basis as if the Company had filed a combined return on behalf of an
affiliated group consisting only of the Company and its Subsidiaries.
"Resale Restriction Termination Date" means, with respect to any Note,
the date that is two years (or such other period as may hereafter be provided
under Rule 144(k) under the Securities Act or any successor provision thereto as
permitting the resale by non-affiliates of Restricted Securities without
restriction) after the later of the original issue date in respect of such Note
and the last date on which the Issuers or any Affiliate of either of the Issuers
was the owner of such Note (or any Predecessor Note thereto).
"Responsible Officer" when used with respect to the Trustee means the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president or assistant vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
and any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Payment Transaction" means any Restricted Payment
permitted pursuant to Section 409, any Permitted Payment, any Permitted
Investment, or any transaction specifically excluded from the definition of the
term "Restricted Payment" (including pursuant to the exception contained in
clause (i) and the parenthetical exclusions contained in clauses (ii) and (iii)
of such definition).
"Restricted Security" has the meaning assigned to such term in Rule
144(a)(3) under the Securities Act; provided, however, that the Trustee shall be
entitled to receive, at its request, and conclusively rely on an Opinion of
Counsel with respect to whether any Note constitutes a Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Company other than
an Unrestricted Subsidiary.
"Ripplewood" means Ripplewood Holdings L.L.C.
"Ripplewood Investor" means, collectively, (i) Ripplewood Partners
II LP, a Delaware limited partnership, or any successor thereto, (ii) Ripplewood
Partners II Parallel Fund, LP, a Delaware limited partnership, or any successor
thereto, (iii) Ripplewood Partners II
Off-shore Parallel Fund, LP, a Cayman Islands exempted limited partnership, or
any successor thereto, (iv) any Affiliate of any thereof, and (v) any successor
in interest to any thereof.
"RSC" has the meaning set forth in the preamble, and any successor in
interest thereto.
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior ABL Agreement" means the Credit Agreement, dated as of the
Issue Date, among the Company; Deutsche Bank AG, New York Branch, as
administrative agent and collateral agent; Citicorp North America, Inc., as
syndication agent; General Electric Capital Corporation, as senior managing
agent; the lenders party thereto from time to time; Deutsche Bank Securities,
Inc. and Citigroup Global Markets Inc. as joint lead arrangers; and Deutsche
Bank Securities, Inc., and Citigroup Global Markets Inc. as joint bookrunning
managers, as such agreement may be amended, supplemented, waived or otherwise
modified from time to time or refunded, refinanced, restructured, replaced,
renewed, repaid, increased or extended from time to time (whether in whole or in
part, whether with the original administrative agent, lenders and other
financial institutions or other agents, lenders and other financial institutions
or otherwise, and whether provided under the original Senior ABL Agreement or
one or more other credit agreements, indentures (including the Indenture) or
financing agreements or otherwise).
"Senior ABL Facility" means the collective reference to the Senior ABL
Agreement, any Loan Documents (as defined therein), any notes and letters of
credit issued pursuant thereto and any guarantee and collateral agreement,
patent and trademark security agreement, mortgages, letter of credit
applications and other guarantees, pledge agreements, security agreements and
collateral documents, and other instruments and documents, executed and
delivered pursuant to or in connection with any of the foregoing, in each case
as the same may be amended, supplemented, waived or otherwise modified from time
to time, or refunded, refinanced, restructured, replaced, renewed, repaid,
increased or extended from time to time (whether in whole or in part, whether
with the original agent, lenders and other financial institutions or other
agents, lenders and other financial institutions or otherwise, and whether
provided under the original Senior ABL Agreement or one or more other credit
agreements, indentures (including this Indenture) or financing agreements or
otherwise). Without limiting the generality of the foregoing, the term "Senior
ABL Facility" shall include any agreement (i) changing the maturity of any
Indebtedness Incurred thereunder or contemplated thereby, (ii) adding
Subsidiaries of the Company as additional borrowers or guarantors thereunder,
(iii) increasing the amount of Indebtedness Incurred thereunder or available to
be borrowed thereunder or (iv) otherwise altering the terms and conditions
thereof.
"Senior Credit Agreements" means, collectively, the Senior ABL
Agreement and the Senior Term Agreement.
"Senior Credit Facilities" means, collectively, the Senior ABL
Facility and the Senior Term Facility.
"Senior Indebtedness" means any Indebtedness of the Company or any
Restricted Subsidiary other than Subordinated Obligations.
"Senior Term Agreement" means the Credit Agreement, dated as of the
Issue Date, among the Issuers; any other borrowers party thereto from time to
time; Deutsche Bank AG, New York Branch, as administrative agent; Citicorp North
America, Inc., as syndication agent; General Electric Capital Corporation, as
co-documentation agent; the lenders party thereto from time to time; Deutsche
Bank Securities Inc. and Citigroup Global Markets, Inc., as joint lead
arrangers; and Deutsche Bank Securities Inc. and Citigroup Global Markets Inc.,
as joint bookrunning managers, as such agreement may be amended, supplemented,
waived or otherwise modified from time to time or refunded, refinanced,
restructured, replaced, renewed, repaid, increased or extended from time to time
(whether in whole or in part, whether with the original administrative agent,
lenders and other financial institutions or other agents, lenders and other
financial institutions or otherwise, and whether provided under the original
Senior Term Agreement or one or more other credit agreements, indentures
(including this Indenture) or financing agreements or otherwise).
"Senior Term Facility" means the collective reference to the Senior
Term Agreement, any Loan Documents (as defined therein), any notes and letters
of credit issued pursuant thereto and any guarantee and collateral agreement,
patent and trademark security agreement, mortgages, letter of credit
applications and other guarantees, pledge agreements, security agreements and
collateral documents, and other instruments and documents, executed and
delivered pursuant to or in connection with any of the foregoing, in each case
as the same may be amended, supplemented, waived or otherwise modified from time
to time, or refunded, refinanced, restructured, replaced, renewed, repaid,
increased or extended from time to time (whether in whole or in part, whether
with the original agent, lenders and other financial institutions or other
agents, lenders and other financial institutions or otherwise, and whether
provided under the original Senior Term Agreement or one or more other credit
agreements, indentures (including this Indenture) or financing agreements or
otherwise). Without limiting the generality of the foregoing, the term "Senior
Term Facility" shall include any agreement (i) changing the maturity of any
Indebtedness Incurred thereunder or contemplated thereby, (ii) adding
Subsidiaries of the Company as additional borrowers or guarantors thereunder,
(iii) increasing the amount of Indebtedness Incurred thereunder or available to
be borrowed thereunder or (iv) otherwise altering the terms and conditions
thereof.
"Significant Subsidiary" means any Restricted Subsidiary that would be
a "significant subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC, as such Regulation is in effect on the
Issue Date.
"Special Purpose Entity" means (x) any Special Purpose Subsidiary or
(y) any other Person that is engaged in the business of (i) acquiring, selling,
collecting, financing or refinancing Receivables, accounts (as defined in the
Uniform Commercial Code as in effect in any jurisdiction from time to time),
other accounts and/or other receivables, and/or related assets, and/or (ii)
acquiring, selling, leasing, financing or refinancing Equipment, and/or related
rights
(including under leases, manufacturer warranties and buy-back programs, and
insurance policies) and/or assets (including managing, exercising and disposing
of any such rights and/or assets).
"Special Purpose Financing" means any financing or refinancing of
assets consisting of or including Receivables and/or other Equipment of the
Company or any Restricted Subsidiary that have been transferred to a Special
Purpose Entity or made subject to a Lien in a Financing Disposition.
"Special Purpose Financing Fees" means distributions or payments made
directly or by means of discounts with respect to any participation interest
issued or sold in connection with, and other fees paid to a Person that is not a
Restricted Subsidiary in connection with, any Special Purpose Financing.
"Special Purpose Financing Undertakings" means representations,
warranties, covenants, indemnities, guarantees of performance and (subject to
clause (y) of the proviso below) other agreements and undertakings entered into
or provided by the Company or any of its Restricted Subsidiaries that the
Company determines in good faith (which determination shall be conclusive) are
customary or otherwise necessary or advisable in connection with a Special
Purpose Financing or a Financing Disposition; provided that (x) it is understood
that Special Purpose Financing Undertakings may consist of or include (i)
reimbursement and other obligations in respect of notes, letters of credit,
surety bonds and similar instruments provided for credit enhancement purposes or
(ii) Hedging Obligations, or other obligations relating to Interest Rate
Agreements, Currency Agreements or Commodities Agreements entered into by the
Company or any Restricted Subsidiary, in respect of any Special Purpose
Financing or Financing Disposition, and (y) subject to the preceding clause (x),
any such other agreements and undertakings shall not include any Guarantee of
Indebtedness of a Special Purpose Subsidiary by the Company or a Restricted
Subsidiary that is not a Special Purpose Subsidiary.
"Special Purpose Subsidiary" means a Subsidiary of the Company that
(a) is engaged solely in (x) the business of (i) acquiring, selling, collecting,
financing or refinancing Receivables, accounts (as defined in the Uniform
Commercial Code as in effect in any jurisdiction from time to time) and other
accounts and receivables (including any thereof constituting or evidenced by
chattel paper, instruments or general intangibles), all proceeds thereof and all
rights (contractual and other), collateral and other assets relating thereto,
and/or (ii) acquiring, selling, leasing, financing or refinancing Equipment,
and/or related rights (including under leases, manufacturer warranties and
buy-back programs, and insurance policies) and/or assets (including managing,
exercising and disposing of any such rights and/or assets), all proceeds thereof
and all rights (contractual and other), collateral and other assets relating
thereto, and (y) any business or activities incidental or related to such
business, and (b) is designated as a "Special Purpose Subsidiary" by the Board
of Directors.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"S&P" means Standard & Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, Inc., and its successors.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the repurchase
of such security at the option of the holder thereof upon the happening of any
contingency).
"Subordinated Obligations" means any Indebtedness of the Company
(whether outstanding on the date of this Indenture or thereafter Incurred) that
is expressly subordinated in right of payment to the Notes pursuant to a written
agreement.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other equity interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by (i) such Person
or (ii) one or more Subsidiaries of such Person.
"Subsidiary Guarantee" means any guarantee that may from time to time
be entered into by a Restricted Subsidiary of the Company on or after the Issue
Date pursuant to Section 414.
"Subsidiary Guarantor" means any Restricted Subsidiary of the Company
that enters into a Subsidiary Guarantee.
"Successor Company" shall have the meaning assigned thereto in clause
(i) under Section 501.
"Supplemental Indenture" means a Supplemental Indenture, to be entered
into substantially in the form attached hereto as Exhibit E.
"Tax Sharing Agreement" means the Tax Sharing Agreement, dated as of
the Issue Date, among the Company, RSC, Holding, RSC Holdings I, LLC, RSC
Holdings II, LLC and Rental Service Corporation of Canada Ltd., as the same may
be amended, supplemented, waived or otherwise modified from time to time in
accordance with the terms thereof and of this Indenture.
"Temporary Cash Investments" means any of the following: (i) any
investment in (x) direct obligations of the United States of America, a member
state of the European Union or any country in whose currency funds are being
held pending their application in the making of an investment or capital
expenditure by the Company or a Restricted Subsidiary in that country or with
such funds, or any agency or instrumentality of any thereof or obligations
Guaranteed by the United States of America or a member state of the European
Union or any country in whose currency funds are being held pending their
application in the making of an investment or capital expenditure by the Company
or a Restricted Subsidiary in that country or with such funds, or any agency or
instrumentality of any of the foregoing, or obligations guaranteed by any of the
foregoing or (y) direct obligations of any foreign country recognized by the
United States of America rated at least "A" by S&P or "A-1" by Xxxxx'x (or, in
either case, the equivalent of such rating
by such organization or, if no rating of S&P or Xxxxx'x then exists, the
equivalent of such rating by any nationally recognized rating organization),
(ii) overnight bank deposits, and investments in time deposit accounts,
certificates of deposit, bankers' acceptances and money market deposits (or,
with respect to foreign banks, similar instruments) maturing not more than one
year after the date of acquisition thereof issued by (x) any bank or other
institutional lender under a Credit Facility or any affiliate thereof or (y) a
bank or trust company that is organized under the laws of the United States of
America, any state thereof or any foreign country recognized by the United
States of America having capital and surplus aggregating in excess of $250.0
million (or the foreign currency equivalent thereof) and whose long term debt is
rated at least "A" by S&P or "A-1" by Xxxxx'x (or, in either case, the
equivalent of such rating by such organization or, if no rating of S&P or
Xxxxx'x then exists, the equivalent of such rating by any nationally recognized
rating organization) at the time such Investment is made, (iii) repurchase
obligations with a term of not more than 30 days for underlying securities of
the types described in clause (i) or (ii) above entered into with a bank meeting
the qualifications described in clause (ii) above, (iv) Investments in
commercial paper, maturing not more than 270 days after the date of acquisition,
issued by a Person (other than that of the Company or any of its Subsidiaries),
with a rating at the time as of which any Investment therein is made of "P-2"
(or higher) according to Xxxxx'x or "A-2" (or higher) according to S&P (or, in
either case, the equivalent of such rating by such organization or, if no rating
of S&P or Xxxxx'x then exists, the equivalent of such rating by any nationally
recognized rating organization), (v) Investments in securities maturing not more
than one year after the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority thereof, and rated at least "A" by S&P
or "A" by Xxxxx'x (or, in either case, the equivalent of such rating by such
organization or, if no rating of S&P or Xxxxx'x then exists, the equivalent of
such rating by any nationally recognized rating organization), (vi) Preferred
Stock (other than of the Company or any of its Subsidiaries) having a rating of
"A" or higher by S&P or "A2" or higher by Xxxxx'x (or, in either case, the
equivalent of such rating by such organization or, if no rating of S&P or
Xxxxx'x then exists, the equivalent of such rating by any nationally recognized
rating organization), (vii) investment funds investing 95% of their assets in
securities of the type described in clauses (i)-(vi) above (which funds may also
hold reasonable amounts of cash pending investment and/or distribution), (viii)
any money market deposit accounts issued or offered by a domestic commercial
bank or a commercial bank organized and located in a country recognized by the
United States of America, in each case, having capital and surplus in excess of
$250.0 million (or the foreign currency equivalent thereof), or investments in
money market funds subject to the risk limiting conditions of Rule 2a-7 (or any
successor rule) of the SEC under the Investment Company Act of 1940, as amended,
and (ix) similar investments approved by the Board of Directors in the ordinary
course of business.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-7bbbb) as in effect on the date of this Indenture.
"Trade Payables" means, with respect to any Person, any accounts
payable or any indebtedness or monetary obligation to trade creditors created,
assumed or guaranteed by such Person arising in the ordinary course of business
in connection with the acquisition of goods or services.
"Transactions" means, collectively, any or all of the following: (i)
the entry into the Indenture, and the offer and issuance of the Notes, (ii) the
entry into the Senior Credit Facilities and Incurrence of Indebtedness
thereunder by one or more of the Company and its Subsidiaries, (iii) the
distribution of the net proceeds from the offer and sale of the Notes and the
Incurrence of Indebtedness under the Senior Credit Facilities to ACNA, (iv) the
repurchase by ACNA of its issued and outstanding capital stock from Atlas Copco
Finance S.a.r.l. in accordance with the Recapitalization Agreement, (v) the
issue of but not payment under up to $400 million aggregate principal amount of
contingent earn-out notes in accordance with the Recapitalization Agreement,
(vi) the repayment by Atlas Copco AB of Indebtedness between RSC and certain of
RSC's affiliates in accordance with the Recapitalization Agreement, (vii) the
contribution by Holding of 100% of the capital stock of RSC through RSC Holdings
I, LLC and RSC Holdings II to the Company, (viii) the contribution by the
Company of all of RSC's outstanding Series A preferred stock to RSC and the
cancellation by RSC of that stock in accordance with the Recapitalization
Agreement, (ix) the equity investment by Affiliates of the Ripplewood Investors
and the Oak Hill Investors in ACNA in accordance with the Recapitalization
Agreement, (x) the satisfaction of or action taken to permit any Parent to
satisfy any obligations under the Recapitalization Agreement and (xi) all other
transactions relating to any of the foregoing (including payment of fees and
expenses related to any of the foregoing).
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it and, thereafter, means the successor.
"Trust Officer" means the Chairman of the Board, the President or any
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that
at the time of determination is an Unrestricted Subsidiary, as designated by the
Board of Directors in the manner provided below, and (ii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary of
the Company (including any newly acquired or newly formed Subsidiary of the
Company) to be an Unrestricted Subsidiary unless such Subsidiary or any of its
Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds any
Lien on any property of, the Company or any other Restricted Subsidiary of the
Company that is not a Subsidiary of the Subsidiary to be so designated; provided
that (A) such designation was made at or prior to the Issue Date or (B) the
Subsidiary to be so designated has total consolidated assets of $1,000 or less
or (C) if such Subsidiary has consolidated assets greater than $1,000, then such
designation would be permitted under Section 409. The Board of Directors may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that immediately after giving effect to such designation (x) the Company could
Incur at least $1.00 of additional Indebtedness under Section 407(a) or (y) the
Consolidated Coverage Ratio would be greater than it was immediately prior to
giving effect to such designation or (z) such Subsidiary shall be a Special
Purpose Subsidiary with no Indebtedness outstanding other than Indebtedness that
can be Incurred (and upon such designation shall be deemed to be Incurred and
outstanding) pursuant to Section 407(b). Any such designation by the Board of
Directors shall be evidenced to the Trustee by promptly filing with the Trustee
a copy of the resolution of the Company's Board of Directors
giving effect to such designation and an Officer's Certificate of the Company
certifying that such designation complied with the foregoing provisions.
"U.S. Government Obligation" means (x) any security that is (i) a
direct obligation of the United States of America for the payment of which the
full faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case under the preceding clause (i) or (ii),
is not callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation that
is specified in clause (x) above and held by such bank for the account of the
holder of such depositary receipt, or with respect to any specific payment of
principal of or interest on any U.S. Government Obligation that is so specified
and held, 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
depositary receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.
"Vice President", when used with respect to any Person, means any vice
president of such Person, whether or not designated by a number or a word or
words added before or after the title "vice president."
"Voting Stock" of an entity means all classes of Capital Stock of such
entity then outstanding and normally entitled to vote in the election of
directors or all interests in such entity with the ability to control the
management or actions of such entity.
Section 102. Other Definitions.
Defined
Term in Section
---- ----------
"Act"................................... 108
"Affiliate Transaction"................. 412
"Agent Members"......................... 312
"Amendment"............................. 410
"Applicable Premium".................... 1001
"Authentication Order".................. 303
"Bankruptcy Law"........................ 601
"Certificate of Beneficial Ownership"... 313
"Change of Control Offer"............... 415
"Covenant Defeasance"................... 1203
"Custodian"............................. 601
"Defaulted Interest".................... 307
"Defeasance"............................ 1202
"Defeased Notes"........................ 1201
"Distribution Compliance Period"........ 201
Defined
Term in Section
---- ----------
"Event of Default"...................... 601
"Excess Proceeds"....................... 411
"Expiration Date"....................... 108
"Global Notes".......................... 201
"Initial Agreement"..................... 410
"Initial Lien".......................... 413
"Note Register" and "Note Registrar".... 305
"Notice of Default"..................... 601
"Offer"................................. 411
"Paying Agent".......................... 305
"Permanent Regulation S Global Note".... 201
"Permitted Payment"..................... 409
"Physical Notes"........................ 201
"Private Placement Legend".............. 203
"Redemption Amount"..................... 1001
"Redemption Price"...................... 1001
"Refinancing Agreement"................. 410
"Regular Record Date"................... 301
"Regulation S Global Notes"............. 201
"Regulation S Note Exchange Date"....... 313
"Regulation S Physical Notes"........... 201
"Reporting Date"........................ 405
"Restricted Payment".................... 409
"Rule 144A Global Note"................. 201
"Rule 144A Physical Notes".............. 201
"Subsidiary Guaranteed Obligations"..... 1301
"Successor Company"..................... 501
"Temporary Regulation S Global Note".... 201
"Treasury Rate"......................... 1001
Section 103. Rules of Construction. For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Indenture have the meanings assigned to
them in this Indenture;
(2) "or" is not exclusive;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(5) all references to "$" or "dollars" shall refer to the lawful
currency of the United States of America;
(6) the words "include," "included" and "including," as used herein,
shall be deemed in each case to be followed by the phrase "without
limitation," if not expressly followed by such phrase or the phrase "but
not limited to";
(7) words in the singular include the plural, and words in the plural
include the singular;
(8) references to sections of, or rules under, the Securities Act
shall be deemed to include substitute, replacement or successor sections or
rules adopted by the SEC from time to time; and
(9) any reference to a Section, Article or clause refers to such
Section, Article or clause of this Indenture.
Section 104. 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. This Indenture is subject to the
mandatory provisions of the TIA, which are incorporated by reference in and made
a part of this Indenture. Any terms incorporated by reference in this Indenture
that are defined by the TIA, defined by any TIA reference to another statute or
defined by SEC rule under the TIA, have the meanings so assigned to them
therein. The following TIA terms have the following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Issuers, any
Subsidiary Guarantor, and any successor or other obligor on the indenture
securities.
Section 105. Conflict with TIA. If any provision hereof limits,
qualifies or conflicts with a provision of the TIA that is required under the
TIA 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 TIA that may be so modified or excluded, the latter provision shall be
deemed (i) to apply to this Indenture as so modified or (ii) to be excluded, as
the case may be.
Section 106. Compliance Certificates and Opinions. Upon any
application or request by the Issuers or by any other obligor upon the Notes
(including any Subsidiary Guarantor) to the Trustee to take any action under any
provision of this Indenture, the Issuers or such other obligor (including any
Subsidiary Guarantor), as the case may be, shall furnish to the Trustee such
certificates and opinions as may be required under the TIA. Each such
certificate or
opinion shall be given in the form of one or more Officer's Certificates, if to
be given by an Officer, or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the TIA and any other requirements set
forth in this Indenture. Notwithstanding the foregoing, in the case of any such
request or application as to which the furnishing of any Officer's Certificate
or Opinion of Counsel is specifically required by any provision of this
Indenture relating to such particular request or application, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for certificates
provided for in Section 406) shall include:
(1) a statement that the individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he or she
made such examination or investigation as is necessary to enable him or her
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of such individual, such
condition or covenant has been complied with.
Section 107. Form of Documents Delivered to Trustee. 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 Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an Officer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such Officer knows that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such 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 to the effect that the
information with respect to such factual matters is in the possession of the
Issuers, unless such counsel knows 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 108. Acts of Noteholders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee, and, where it is hereby expressly required, to the Issuers, as
the case may be. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 701) conclusive in favor of
the Trustee, the Issuers and any other obligor upon the Notes, if made in the
manner provided in this Section 108.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or a member of a partnership or
other legal entity other than an individual, on behalf of such corporation or
partnership or entity, such certificate or affidavit shall also constitute
sufficient proof of such Person's authority. The fact and date of the execution
of any such instrument or writing, or the authority of the person executing the
same, may also be proved in any other manner that the Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Note shall bind the Holder of every
Note issued upon the transfer thereof or in exchange therefor or in lieu
thereof, in respect of anything done, suffered or omitted to be done by the
Trustee, the Issuers or any other obligor upon the Notes in reliance thereon,
whether or not notation of such action is made upon such Note.
(e) (i) The Issuers may set any day as a record date for the purpose
of determining the Holders of Outstanding Notes entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Notes, provided that the Issuers may not set a record date for, and
the provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in the next
paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Notes on such record date (or their duly designated proxies), and no
other Holders, shall be entitled to take the relevant action, whether or not
such Persons remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Notes on such record date. Nothing in this paragraph shall be construed to
prevent the Issuers from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and
of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Notes on the date such action is taken. Promptly after any record
date is set pursuant to this paragraph, the Issuers, at their expense, shall
cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to each
Holder of Notes in the manner set forth in Section 110.
(ii) The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Notes entitled to join in the giving or
making of (A) any Notice of Default, (B) any declaration of acceleration
referred to in Section 602, (C) any request to institute proceedings referred to
in Section 607(ii) or (D) any direction referred to in Section 612, in each case
with respect to Notes. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Notes on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Notes on such record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Notes on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Issuers'
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Issuers in writing and to
each Holder of Notes in the manner set forth in Section 110.
(iii) With respect to any record date set pursuant to this Section
108, the party hereto that sets such record dates may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the Issuers or the
Trustee, whichever such party is not setting a record date pursuant to this
Section 108(e) in writing, and to each Holder of Notes in the manner set forth
in Section 110, on or prior to the existing Expiration Date. If an Expiration
Date is not designated with respect to any record date set pursuant to this
Section, the party hereto that set such record date shall be deemed to have
initially designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
(iv) Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Note may do so with
regard to all or any part of the principal amount of such Note or by one or more
duly appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
(v) Without limiting the generality of the foregoing, a Holder,
including the Depositary or the Common Depositary, that is the Holder of a
Global Note, may make, give or take,
by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders, the Depositary or the
Common Depositary, as the Holder of a Global Note, may provide its proxy or
proxies to the beneficial owners of interest in any such Global Note through
such depositary's standing instructions and customary practices.
(vi) The Issuers may fix a record date for the purpose of determining
the persons who are beneficial owners of interests in any Global Note held by
the Depositary or the Common Depositary entitled under the procedures of such
depositary to make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or taken by
Holders. If such a record date is fixed, the Holders on such record date or
their duly appointed proxy or proxies, and only such persons, shall be entitled
to make, give or take such request, demand, authorization, direction, notice,
consent, waiver or other action, whether or not such Holders remain Holders
after such record date. No such request, demand, authorization, direction,
notice, consent, waiver or other action shall be valid or effective if made,
given or taken more than 90 days after such record date.
Section 109. Notices, etc., to Trustee and Issuers. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Issuers or by any other
obligor upon the Notes shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing to or with the Trustee at 000
Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000, Attention: Corporate Trust
Department (telephone: (000) 000-0000; telecopier: (000) 000-0000 or at any
other address furnished in writing to the Issuers by the Trustee, or
(2) the Issuers by the Trustee or by any Holder shall be sufficient
for every purpose hereunder if in writing and mailed, first-class postage
prepaid, to Xxxxx Fargo Bank, National Association, 000 Xxxxx Xxxxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Xxxxxx X. X'Xxxxxxx or at
any other address previously furnished in writing to the Trustee by the
Issuers.
The Issuers or the Trustee, by notice to the other, may designate
additional or different addresses for subsequent notices or communications.
Section 110. Notices to Holders; Waiver. Where this Indenture provides
for notice to Holders of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, or by overnight air courier guaranteeing next day
delivery, to each Holder affected by such event, at such Holder's address as it
appears in the Note Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail notice of any event as
required by any provision of this Indenture, then such notification as shall be
made with the approval of the Trustee (such approval not to be unreasonably
withheld) shall constitute a sufficient notification for every purpose
hereunder.
Section 111. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 112. Successors and Assigns. All covenants and agreements in
this Indenture by the Issuers shall bind their respective successors and
assigns, whether so expressed or not. All agreements of the Trustee in this
Indenture shall bind its successors.
Section 113. Separability Clause. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 114. 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, any Paying Agent and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 115. GOVERNING LAW. THIS INDENTURE AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK. THE TRUSTEE, THE ISSUERS ANY OTHER OBLIGOR IN RESPECT OF THE NOTES AND (BY
THEIR ACCEPTANCE OF THE NOTES) THE HOLDERS AGREE TO SUBMIT TO THE JURISDICTION
OF ANY UNITED STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN,
IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS INDENTURE OR THE NOTES.
Section 116. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date or Stated Maturity of any Note shall not be a Business Day
at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Notes) payment of interest or principal and premium (if any)
need not be made at 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
Stated Maturity, and no interest shall accrue on such payment for the
intervening period.
Section 117. No Personal Liability of Directors, Officers, Employees,
Incorporators and Stockholders. No director, officer, employee, incorporator or
stockholder of the Issuers, any Subsidiary Guarantor or any Subsidiary of any
thereof shall have any liability for any obligation of the Issuers or any
Subsidiary Guarantor under this Indenture, the Notes or any Subsidiary
Guarantee, or for any claim based on, in respect of, or by reason of, any such
obligation or its creation. Each Noteholder, by accepting the Notes, waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
Section 118. Exhibits and Schedules. All exhibits and schedules
attached hereto are by this reference made a part hereof with the same effect as
if herein set forth in full.
Section 119. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
ARTICLE II
NOTE FORMS
Section 201. Forms Generally.
(a) The Initial Notes and Initial Additional Notes that are not
Exchange Notes and the Trustee's certificate of authentication relating thereto
shall be in substantially the forms set forth, or referenced, in this Article II
and Exhibit A, annexed hereto. The Exchange Notes and any Additional Notes that
are not Initial Additional Notes, or that are issued in a registered offering
pursuant to the Securities Act, and the Trustee's certificate of authentication
relating thereto shall be in substantially the forms set forth, or referenced,
in this Article II and Exhibit C, annexed hereto. Each of Exhibits A and B is
hereby incorporated in and expressly made a part of this Indenture. The Notes
may have such appropriate insertions, omissions, substitutions, notations,
legends, endorsements, identifications and other variations as are required or
permitted by law, stock exchange rule or depositary rule or usage, agreements to
which the Issuers are subject, if any, or other customary usage, or as may
consistently herewith be determined by the Officers of the Issuers executing
such Notes, as evidenced by such execution (provided always that any such
notation, legend, endorsement, identification or variation is in a form
acceptable to the Issuers). Each Note shall be dated the date of its
authentication. The terms of the Notes set forth in Exhibits A and B are part of
the terms of this Indenture. Any portion of the text of any Note may be set
forth on the reverse thereof, with an appropriate reference thereto on the face
of the Note.
Initial Notes and any Initial Additional Notes offered and sold in
reliance on Rule 144A shall, unless the Issuers otherwise notify the Trustee in
writing, be issued in the form of one or more permanent global Notes in
substantially the form set forth in Exhibit A hereto, except as otherwise
permitted herein. Such Global Notes shall be referred to collectively herein as
the "Rule 144A Global Note. The Rule 144A Global Note shall be deposited with
the Trustee, as custodian for the Depositary or its nominee, in each case for
credit to an account of an Agent Member, and shall be duly executed by the
Issuers and authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of a Rule 144A Global Note may from
time to time be increased or decreased by adjustments made on the records of the
Trustee as hereinafter provided.
Initial Notes and any Initial Additional Notes offered and sold in
offshore transactions in reliance on Regulation S under the Securities Act
shall, unless the Issuers otherwise notify the Trustee in writing, be issued in
the form of one or more temporary global Notes in substantially the form set
forth in Exhibit A hereto, except as otherwise permitted herein. Such Global
Notes will be referred to collectively herein as the "Temporary Regulation S
Global Note." The Temporary Regulation S Global Note shall be deposited with the
Trustee, as custodian for the Depositary or its nominee for the accounts of
designated Agent Members holding on behalf of Euroclear or Clearstream and shall
be duly executed by the Issuers and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of a Temporary Regulation S Global Note
may from time to time be increased or increased by adjustments made on the
records of the Trustee as hereinafter provided.
Following the expiration of the distribution compliance period set
forth in Regulation S (the "Distribution Compliance Period") with respect to any
Temporary Regulation S Global Note, beneficial interests in such Temporary
Regulation S Global Note shall be exchanged as provided in Sections 312 and 313
for beneficial interests in one or more permanent global Notes in substantially
the form set forth in Exhibit A hereto, except as otherwise permitted herein.
Such Global Notes will be referred to collectively herein as the "Permanent
Regulation S Global Note." The Permanent Regulation S Global Note shall be
deposited with the Trustee, as custodian for the Depositary or its nominee for
credit to the account of an Agent Member and shall be duly executed by the
Issuers and authenticated by the Trustee as hereinafter provided. Simultaneously
with the authentication of a Permanent Regulation S Global Note, the Trustee
shall cancel the related Temporary Regulation S Global Note.
Subject to the limitations on the issuance of certificated Notes set
forth in Sections 312 and 313, Initial Notes and any Initial Additional Notes
issued pursuant to Section 305 in exchange for or upon transfer of beneficial
interests (x) in a Rule 144A Global Note shall be in the form of permanent
certificated Notes substantially in the form set forth in Exhibit A hereto (the
"Rule 144A Physical Notes") or (y) in a Regulation S Global Note (if any), on or
after the Regulation S Note Exchange Date with respect to such Regulation S
Global Note, shall be in the form of permanent certificated Notes substantially
in the form set forth in Exhibit A hereto (the "Regulation S Physical Notes"),
respectively, as hereinafter provided.
The Rule 144A Physical Notes and Regulation S Physical Notes shall be
construed to include any certificated Notes issued in respect thereof pursuant
to Section 304, 305, 306 or 1008, and the Rule 144A Global Notes and Regulation
S Global Notes shall be construed to include any global Notes issued in respect
thereof pursuant to Section 304, 305, 306 or 1008. The Rule 144A Physical Notes
and the Regulation S Physical Notes, together with any other certificated Notes
issued and authenticated pursuant to this Indenture, are sometimes collectively
herein referred to as the "Physical Notes." The Rule 144A Global Notes and the
Regulation S Global Notes, together with any other global Notes that are issued
and authenticated pursuant to this Indenture, are sometimes collectively
referred to as the "Global Notes."
Exchange Notes shall be issued substantially in the form set forth in
Exhibit B hereto and, subject to Section 312(b), shall be in the form of one or
more Global Notes.
Section 202. Form of Trustee's Certificate of Authentication. The
Notes will have endorsed thereon a Trustee's certificate of authentication.
If an appointment of an Authenticating Agent is made pursuant to
Section 714, the Notes may have endorsed thereon, in lieu of the Trustee's
certificate of authentication, an alternative certificate of authentication.
Section 203. Restrictive and Global Note Legends. Each Global Note and
Physical Note (and all Notes issued in exchange therefor or substitution
thereof) shall bear the following legend set forth below (the "Private Placement
Legend") on the face thereof until the Private Placement Legend is removed or
not required in accordance with Section 313(4):
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH BELOW. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED
THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT.
BY ITS ACCEPTANCE HEREOF, THE HOLDER OF THIS NOTE (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 THIS NOTE IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES
ACT OR (C) IT IS AN "INSTITUTIONAL" ACCREDITED INVESTOR (AS DEFINED IN RULE
501(a)(l), (2), (3), OR (7) UNDER REGULATION D PROMULGATED UNDER THE
SECURITIES ACT) (AN "ACCREDITED INVESTOR") AND (2) AGREES THAT IT WILL NOT
WITHIN [TWO YEARS--FOR NOTES ISSUED PURSUANT TO RULE 144A] [40 DAYS--FOR
NOTES ISSUED IN OFFSHORE TRANSACTIONS PURSUANT TO REGULATION S] AFTER THE
LATER OF THE DATE OF THE ORIGINAL ISSUANCE OF THIS NOTE AND THE DATE ON
WHICH THE ISSUERS OR ANY OF THEIR AFFILIATES OWNED SUCH NOTE, OFFER, RESELL
OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) (I) TO THE ISSUERS OR ANY
SUBSIDIARY THEREOF, (II) FOR SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT INSIDE THE UNITED STATES TO
A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (III) INSIDE
THE UNITED STATES TO AN ACCREDITED
INVESTOR THAT IS ACQUIRING THE NOTES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF SUCH AN ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT
OF THE NOTES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR
FOR THE OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT, AND THAT PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS
FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE FOR THIS NOTE), (IV) OUTSIDE THE UNITED STATES IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES
ACT (IF AVAILABLE), (V) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (VI) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, OR (VII) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.
THE HOLDER OF THIS NOTE FURTHER AGREES THAT IT WILL GIVE TO EACH PERSON TO
WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE PURSUANT TO SUBCLAUSES
(III) TO (VI) OF CLAUSE (A) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND THE ISSUERS SUCH CERTIFICATIONS, LEGAL OPINIONS
OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM
THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. 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.
Each Global Note, whether or not an Initial Note, shall also bear the
following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUERS OR
THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS 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 THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTIONS 312 AND 313 OF THE INDENTURE (AS DEFINED HEREIN).
Each Temporary Regulation S Global Note shall also bear the following
legend on the face thereof:
EXCEPT AS SPECIFIED IN THE INDENTURE, BENEFICIAL OWNERSHIP INTERESTS IN
THIS TEMPORARY REGULATION S GLOBAL NOTE WILL NOT BE EXCHANGEABLE FOR
INTERESTS IN THE PERMANENT REGULATION S GLOBAL NOTE OR ANY OTHER NOTE
REPRESENTING AN INTEREST IN THE NOTES REPRESENTED HEREBY WHICH DO NOT
CONTAIN A LEGEND CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION
OF THE "40 DAY DISTRIBUTION COMPLIANCE PERIOD" (WITHIN THE MEANING OF RULE
903(b)(2) OF REGULATION S UNDER THE SECURITIES ACT). DURING SUCH 40 DAY
DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL OWNERSHIP INTERESTS IN THIS
TEMPORARY REGULATION S GLOBAL NOTE MAY ONLY BE SOLD, PLEDGED OR TRANSFERRED
THROUGH EUROCLEAR BANK S.A./N.A., AS OPERATOR OF THE EUROCLEAR SYSTEM, OR
CLEAR-STREAM BANKING, SOCIETE ANONYME.
ARTICLE III
THE NOTES
Section 301. Title and Terms. The aggregate principal amount of Notes
that may be authenticated and delivered and Outstanding under this Indenture is
not limited. The Initial Notes will be issued in an aggregate principal amount
of $620 million. Additional Notes (including any Exchange Notes issued in
exchange therefor) will vote (or consent) as a class with the other Notes
(except as otherwise provided in Section 902) and otherwise be treated as Notes
for all purposes of this Indenture.
The Notes shall be known and designated as the "9 1/2% Senior Notes
due 2014" of the Issuers. The final Stated Maturity of the Notes shall be
December 1, 2014. Interest on the Outstanding principal amount of Notes will
accrue at the rate of 9 1/2% per annum and will be payable, in each case,
semi-annually in arrears on June 1 and December 1 in each year, commencing on
June 1, 2007, to holders of record on the immediately preceding May 15 and
November 15, respectively (each such date, a "Regular Record Date"). Interest on
the Original Notes will accrue from the most recent date to which interest has
been paid or duly provided for or, if no interest has been paid, from November
27, 2006; and interest on any Additional Notes (and Exchange Notes issued in
exchange therefor) will accrue (or will be deemed to have accrued) from the most
recent date to which interest has been paid or duly provided for or, if no
interest has been paid on such Additional Notes, from the Interest Payment Date
immediately preceding the date of issuance of such Additional Notes, or if the
date of issuance of such Additional Notes is an Interest Payment Date, from such
date of issuance; provided that if any Note is surrendered for exchange on or
after a record date for an Interest Payment Date that will occur on or after the
date of such exchange, interest on the Note received in exchange thereof will
accrue from the date of such Interest Payment Date.
Section 302. Denominations. The Notes shall be issuable only in fully
registered form, without coupons, and only in minimum denominations of $2,000
and integral multiples of $1,000 in excess thereof.
Section 303. Execution, Authentication and Delivery and Dating. The
Notes shall be executed on behalf of each Issuer by one Officer of such Issuer.
The signature of any such Officer on the Notes may be manual or by facsimile.
Notes bearing the manual or facsimile signature of an individual who
was at any time an Officer of an Issuer shall bind such Issuer, notwithstanding
that such individual has ceased to hold such office prior to the authentication
and delivery of such Notes or did not hold such office at the date of such
Notes.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuers may deliver Notes executed by the Issuers to the
Trustee for authentication; and the Trustee shall authenticate and deliver (i)
Initial Notes for original issue in the aggregate principal amount not to exceed
$620 million, (ii) Additional Notes in one or more series from time to time for
original issue in aggregate principal amounts specified by the Issuers and (iii)
Exchange Notes from time to time for issue in exchange for a like principal
amount of Initial Notes or Initial Additional Notes, in each case specified in
clauses (i) through (iii) above, upon a written order of the Issuers in the form
of an Officer's Certificate of each of the Issuers (an "Authentication Order").
Such Officer's Certificate shall specify the amount of Notes to be authenticated
and the date on which the Notes are to be authenticated, the "CUSIP," "ISIN,"
"Common Code" or other similar identification numbers of such Notes, if any,
whether the Notes are to be Initial Notes, Additional Notes or Exchange Notes
and whether the Notes are to be issued as one or more Global Notes or Physical
Notes and such other information as the Issuers may include or the Trustee may
reasonably request.
All Notes shall be dated the date of their authentication.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication executed by the Trustee by manual signature, and
such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder.
Section 304. Temporary Notes. Until definitive Notes are ready for
delivery, the Issuers may prepare and upon receipt of an Authentication Order
the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Issuers consider appropriate for temporary Notes. If temporary Notes are issued,
the Issuers will cause definitive Notes to be prepared without unreasonable
delay. After the preparation of definitive Notes, the temporary Notes shall be
exchangeable for definitive Notes upon surrender of the temporary Notes at the
office or agency of the Issuers in a Place of Payment, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes the
Issuers shall execute and upon receipt of an Authentication Order the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Notes of authorized denominations. Until so exchanged the temporary
Notes shall in all respects be entitled to the same benefits under this
Indenture as definitive Notes of the same series and tenor.
Section 305. Registrar and Paving Agent. The Issuers shall cause to be
kept at the Corporate Trust Office of the Trustee a register (the register
maintained in such office and in any other office or agency of the Issuers in a
Place of Payment being herein sometimes collectively referred to as the "Note
Register") in which, subject to such reasonable regulations as it may prescribe,
the Issuers shall provide for the registration of Notes and of transfers of
Notes. The Issuers may have one or more co-registrars. The term "Note Registrar"
includes any co-registrars.
The Issuers shall maintain an office or agent within the United States
where Notes may be presented for payment (the "Paying Agent"); provided,
however, that at the option of the Issuers payment of interest on a Note may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Note Register. The Issuers may have one or more
additional paying agents, and the term "Paying Agent" includes the Paying Agent
and any additional Paying Agent.
The Issuers initially appoint the Trustee as "Note Registrar" and
"Paying Agent" in connection with the Notes until such time as the Trustee has
resigned or a successor has been appointed. The Issuers may change the Paying
Agent or Note Registrar for any series of Notes without prior notice to the
Holders of Notes. The Issuers may enter into an appropriate agency agreement
with any Note Registrar or Paying Agent not a party to this Indenture. Any such
agency agreement shall implement the provisions of this Indenture that relate to
such agent. The Issuers shall notify the Trustee in writing of the name and
address of any such agent. If the Issuers fail to appoint or maintain a Note
Registrar or Paying Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation therefor pursuant to Section 707. The Issuers or any
wholly-owned Domestic Subsidiary of either of the Issuers may act as Paying
Agent, Note Registrar or transfer agent.
Upon surrender for transfer of any Note at the office or agency of the
Issuers in a Place of Payment, in compliance with all applicable requirements of
this Indenture and applicable law, the Issuers shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes of the same series, of any authorized
denominations and of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes of
the same series, of any authorized denominations and of a like tenor and
aggregate principal amount, upon surrender of the Notes to be exchanged at such
office or agency. Whenever any Notes are so surrendered for exchange, the
Issuers shall execute, and the Trustee shall authenticate and deliver, the Notes
that the Holder making the exchange is entitled to receive.
All Notes issued upon any transfer or exchange of Notes shall be the
valid obligations of the Issuers, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Notes surrendered upon such transfer
or exchange.
Every Note presented or surrendered for transfer or exchange shall (if
so required by the Issuers or the Trustee) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Issuers and the
Note Registrar duly executed, by the Holder thereof or such Holder's attorney
duly authorized in writing.
No service charge shall be made for any registration, transfer or
exchange of Notes, but the Issuers may require payment of a sum sufficient to
cover any transfer tax or other governmental charge that may be imposed in
connection therewith.
The Issuers shall not be required (i) to issue, transfer or exchange
any Note during a period beginning at the opening of business 15 Business Days
before the day of the mailing of a notice of redemption (or purchase) of Notes
selected for redemption (or purchase) under Section 1004 and ending at the close
of business on the day of such mailing, or (it) to transfer or exchange any Note
so selected for redemption (or purchase) in whole or in part.
Section 306. Mutilated. Destroyed. Lost and Stolen Notes. If a
mutilated Note is surrendered to the Note Registrar or if the Holder of a Note
claims that the Note has been lost, destroyed or wrongfully taken, the Issuers
shall issue and the Trustee shall authenticate a replacement Note if the
requirements of Section 8-405 of the Uniform Commercial Code are met, such that
the Holder (a) satisfies the Issuers or the Trustee within a reasonable time
after such Holder has notice of such loss, destruction or wrongful taking and
the Note Registrar does not register a transfer prior to receiving such
notification, (b) makes such request to the Issuers or the Trustee prior to the
Note being acquired by a protected purchaser as defined in Section 8-303 of the
Uniform Commercial Code (a "protected purchaser") and (c) satisfies any other
reasonable requirements of the Trustee. If required by the Trustee or the
Issuers, such Holder shall furnish an indemnity bond sufficient in the judgment
of the Trustee to protect the Issuers, the Trustee, a Paying Agent and the Note
Registrar from any loss that any of them may suffer if a Note is replaced.
In case any such mutilated, destroyed, lost or stolen Note has become
or is about to become due and payable, the Issuers in their discretion may,
instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section 306, the Issuers
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section 306 in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Issuers, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and ratably with any and all other
Notes duly issued hereunder.
The provisions of this Section 306 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 307. Payment of Interest Rights Preserved. Interest on any
Note that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Note (or
one or more Predecessor Notes) is registered at the close of business on the
Regular Record Date for such interest specified in Section 301.
Any interest on any Note that is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder on the
relevant Regular Record Date by virtue of having been such Holder; and such
Defaulted Interest may be paid by the Issuers, at its election, as provided in
clause (1) or clause (2) below:
(1) The Issuers may elect to make payment of any Defaulted Interest to
the Persons in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Issuers shall notify the Trustee and Paying Agent in
writing of the amount of Defaulted Interest proposed to be paid on each
Note and the date of the proposed payment, and at the same time the Issuers
shall deposit with the Trustee or Paying Agent an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements reasonably satisfactory to the Trustee
or Paying Agent for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as provided in this clause (1).
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 nor less than 10
days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee and the Paying Agent of the notice of the
proposed payment. The Trustee shall promptly notify the Issuers of such
Special Record Date and, in the name and at the expense of the Issuers,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first class postage prepaid,
to each Holder at such Holder's address as it appears in the Note Register,
not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Notes (or their respective Predecessor
Notes) are registered on such Special Record Date and shall no longer be
payable pursuant to the following clause (2).
(2) The Issuers may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the Issuers
to the Trustee and the Paying Agent of the proposed payment pursuant to
this clause (2), such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 307, each Note
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Note of the same series shall carry the rights to interest accrued and
unpaid, and to accrue, that were carried by such other Note of such series.
Section 308. Persons Deemed Owners. The Issuers, any Subsidiary
Guarantor, the Trustee, the Paying Agent and any agent of any of them may treat
the Person in whose name any Note is registered as the owner of such Note for
the purpose of receiving payment of principal of (and premium, if any), and
(subject to Section 307) interest on, such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and none of the Issuers, any
Subsidiary Guarantor, the Trustee, the Paying Agent or any agent of any of them
shall be affected by notice to the contrary.
Section 309. Cancellation. All Notes surrendered for payment,
redemption, transfer, exchange or conversion shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and, if not already
cancelled, shall be promptly cancelled by it. The Issuers may at any time
deliver to the Trustee for cancellation any Notes previously authenticated and
delivered hereunder that the Issuers may have acquired in any manner whatsoever,
and all Notes so delivered shall be promptly cancelled by the Trustee. No Notes
shall be authenticated in lieu of or in exchange for any Notes cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Notes held by the Trustee shall be disposed of by the Trustee in
accordance with its customary procedures (subject to the record retention
requirements of the Exchange Act).
Section 310. Computation of Interest. Interest on the Notes shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers, ISINs, etc. The Issuers in issuing the
Notes may use "CUSIP" numbers, ISINs and "Common Code" numbers (if then
generally in use), and if so, the Trustee may use the CUSIP numbers, ISINs and
"Common Code" numbers in notices of redemption or exchange as a convenience to
Holders; provided, however, that any such notice may state that no
representation is made as to the correctness or accuracy of such numbers printed
in the notice or on the Notes; that reliance may be placed only on the other
identification numbers printed on the Notes; and that any redemption shall not
be affected by any defect in or omission of such numbers.
Section 312. Book-Entry Provisions for Global Notes.
(a) Each Global Note initially shall (i) be registered in the name of
the Depositary for such Global Note or the nominee of such Depositary, in each
case for credit to the
account of an Agent Member, and (ii) be delivered to the Trustee as custodian
for such Depositary. None of the Issuers or any agent of the Issuers shall have
any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Note, or
for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Members of, or participants in, the Depositary, Euroclear or
Clearstream ("Agent Members") shall have no rights under this Indenture with
respect to any Global Note held on their behalf by the Depositary, or its
respective custodians, or under such Global Notes. The Depositary may be treated
by the Issuers, any other obligor upon the Notes, the Trustee and any agent of
any of them as the absolute owner of the Global Notes for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Issuers, any other obligor upon the Notes, the Trustee or any agent of any of
them from giving effect to any written certification, proxy or other
authorization furnished by the Depositary, or impair, as between the Depositary,
Euroclear or Clearstream, as the case may be, and their respective Agent
Members, the operation of customary practices governing the exercise of the
rights of a beneficial owner of any Note. The registered holder of a Global Note
may grant proxies and otherwise authorize any Person, including Agent Members
and Persons that may hold interests through Agent Members, to take any action
that a Holder is entitled to take under this Indenture or the Notes.
(b) Transfers of a Global Note shall be limited to transfers of such
Global Note in whole, but, subject to the immediately succeeding sentence, not
in part, to the Depositary, its successors or their respective nominees.
Interests of beneficial owners in a Global Note may not be transferred or
exchanged for Physical Notes unless (i) the Issuers have consented thereto in
writing, or such transfer or exchange is made pursuant to the next sentence, and
(ii) such transfer or exchange is in accordance with the applicable rules and
procedures of the Depositary, Euroclear or Clearstream, as the case may be, and
the provisions of Sections 305 and 313. Subject to the limitation on issuance of
Physical Notes set forth in Section 313(3), Physical Notes shall be transferred
to all beneficial owners in exchange for their beneficial interests in the
relevant Global Note, if (i) in the case of a Global Note, the Depositary
notifies the Issuers at any time that it is unwilling or unable to continue as
Depositary for the Global Notes and a successor depositary is not appointed
within 120 days; (ii) in the case of a Global Note, the Depositary ceases to be
registered as a "Clearing Agency" under the Exchange Act and a successor
depositary is not appointed within 120 days; (iii) the Issuers, at their option,
notify the Trustee that they elect to cause the issuance of Physical Notes; or
(iv) an Event of Default shall have occurred and be continuing with respect to
the Notes and the Trustee has received a written request from the Depositary to
issue Physical Notes.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Note to beneficial owners for Physical Notes
pursuant to Section 312(b), the Note Registrar shall record on its books and
records the date and a decrease in the principal amount of such Global Note in
an amount equal to the beneficial interest in the Global Note being transferred,
and the Issuers shall execute, and the Trustee shall authenticate and deliver,
one or more Physical Notes of like tenor and principal amount of authorized
denominations.
(d) In connection with a transfer of an entire Global Note to
beneficial owners pursuant to Section 312(b), the applicable Global Note shall
be deemed to be surrendered to the Trustee for cancellation, and the Issuers
shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depositary, Euroclear or Clearstream, as the
case may be, in exchange for its beneficial interest in the applicable Global
Note, an equal aggregate principal amount at maturity of Rule 144A Physical
Notes (in the case of any Rule 144A Global Note) or Regulation S Physical Notes
(in the case of any Regulation S Global Note), as the case may be, of authorized
denominations.
(e) The transfer and exchange of a Global Note or beneficial interests
therein shall be effected through the Depositary, in accordance with this
Indenture (including applicable restrictions on transfer set forth in Section
313) and the procedures therefor of the Depositary, Euroclear or Clearstream, as
the case may be. Any beneficial interest in one of the Global Notes that is
transferred to a Person who takes delivery in the form of an interest in a
different Global Note will, upon transfer, cease to be an interest in such
Global Note and become an interest in the other Global Note and, accordingly,
will thereafter be subject to all transfer restrictions, if any, and other
procedures applicable to beneficial interests in such other Global Note for as
long as it remains such an interest. A transferor of a beneficial interest in a
Global Note shall deliver to the Note Registrar a written order given in
accordance with the procedures of the Depositary or of Euroclear or Clearstream,
as applicable, containing information regarding the participant account of the
Depositary to be credited with a beneficial interest in the relevant Global
Note. Subject to Section 313, the Note Registrar shall, in accordance with such
instructions, instruct the Depositary or Euroclear or Clearstream, as
applicable, to credit to the account of the Person specified in such
instructions a beneficial interest in such Global Note and to debit the account
of the Person making the transfer the beneficial interest in the Global Note
being transferred.
(f) Any Physical Note delivered in exchange for an interest in a
Global Note pursuant to Section 312(b) shall, unless such exchange is made on or
after the Resale Restriction Termination Date applicable to such Note and except
as otherwise provided in Section 203 and Section 313, bear the Private Placement
Legend.
(g) Notwithstanding the foregoing, through the Restricted Period, a
beneficial interest in a Regulation S Global Note may be held only through
Euroclear or Clearstream, or designated Agent Members holding on behalf of
Euroclear or Clearstream unless delivery is made in accordance with the
applicable provisions of Section 313.
(h) The Holder of any Global Note may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
Section 313. Special Transfer Provisions.
(1) Transfers to Non-U.S. Persons. The following provisions shall
apply with respect to the registration of any proposed transfer of a Note that
is a Restricted Security to any Non-U.S. Person: The Note Registrar shall
register such transfer if it complies with all other applicable requirements of
this Indenture (including Section 305) and,
(a) if (x) such transfer is after the relevant Resale Restriction
Termination Date with respect to such Note or (y) the proposed transferor
has delivered to the Note Registrar and the Issuers and the Trustee a
Regulation S Certificate and, unless otherwise agreed by the Issuers and
the Trustee, an opinion of counsel, certifications and other information
satisfactory to the Issuers and the Trustee, and
(b) if the proposed transferor is or is acting through an Agent Member
holding a beneficial interest in a Global Note, upon receipt by the Note
Registrar and the Issuers and the Trustee of (x) the certificate, opinion,
certifications and other information, if any, required by clause (a) above
and (y) written instructions given in accordance with the procedures of the
Note Registrar and of the Depositary;
whereupon (i) the Note Registrar shall reflect on its books and records the date
and (if the transfer does not involve a transfer of any Outstanding Physical
Note) a decrease in the principal amount of the relevant Global Note in an
amount equal to the principal amount of the beneficial interest in the relevant
Global Note to be transferred, and (ii) either (A) if the proposed transferee is
or is acting through an Agent Member holding a beneficial interest in a relevant
Regulation S Global Note, the Note Registrar shall reflect on its books and
records the date and an increase in the principal amount of such Regulation S
Global Note in an amount equal to the principal amount of the beneficial
interest being so transferred or (B) otherwise the Issuers shall execute and the
Trustee shall authenticate and deliver one or more Physical Notes of like tenor
and amount.
(2) Transfers to OIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Note that is a
Restricted Security to a QIB (excluding transfers to Non-U.S. Persons): The Note
Registrar shall register such transfer if it complies with all other applicable
requirements of this Indenture (including Section 305) and,
(a) if such transfer is being made by a proposed transferor who has
checked the box provided for on the form of such Note stating, or has
otherwise certified to the Note Registrar and the Issuers and the Trustee
in writing, that the sale has been made in compliance with the provisions
of Rule 144A to a transferee who has signed the certification provided for
on the form of such Note stating, or has otherwise certified to Note
Registrar and the Issuers and the Trustee in writing, that it is purchasing
such Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
QIB within the meaning of Rule 144A, and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it has received
such information regarding the Issuers as it has requested pursuant to Rule
144A or has determined not to request such information and that it is aware
that the transferor is relying upon its foregoing representations in order
to claim the exemption from registration provided by Rule 144A; and
(b) if the proposed transferee is an Agent Member, and the Note to be
transferred consists of a Physical Note that after transfer is to be
evidenced by an interest in a Global Note or consists of a beneficial
interest in a Global Note that after the transfer is to be evidenced by an
interest in a different Global Note, upon receipt by the Note Registrar of
written instructions given in accordance with the procedures of the Note
Registrar
and of the Depositary whereupon the Note Registrar shall reflect on its
books and records the date and an increase in the principal amount of the
transferee Global Note in an amount equal to the principal amount of the
Physical Note or such beneficial interest in such transferor Global Note to
be transferred, and the Trustee shall cancel the Physical Note so
transferred or reflect on its books and records the date and a decrease in
the principal amount of such transferor Global Note, as the case may be.
(3) Limitation on Issuance of Physical Notes. No Physical Note shall
be exchanged for a beneficial interest in any Global Note, except in accordance
with Section 312 and this Section 313.
A beneficial owner of an interest a Temporary Regulation S Global Note
(and, in the case of any Additional Notes for which no Temporary Regulation S
Global Note is issued, any Regulation S Global Note) shall not be permitted to
exchange such interest for a Physical Note or (in the case of such interest in a
Temporary Regulation S Global Note) an interest in a Permanent Regulation S
Global Note until a date, which must be after Distribution Compliance Date, on
which the Issuers receive a certificate of beneficial ownership substantially in
the form of Exhibit C from such beneficial owner (a "Certificate of Beneficial
Ownership"). Such date, as it relates to a Regulation S Global Note, is herein
referred to as the "Regulation S Note Exchange Date."
(4) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Note
Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the transfer, exchange or replacement of Notes bearing the Private
Placement Legend, the Note Registrar shall deliver only Notes that bear the
Private Placement Legend unless (i) the requested transfer is after the relevant
Resale Restriction Termination Date with respect to such Notes, (ii) upon
written request of the Issuers after there is delivered to the Note Registrar an
opinion of counsel (which opinion and counsel are satisfactory to the Issuers
and the Trustee) to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act, (iii) with respect to a Regulation S Global
Note (on or after the Regulation S Note Exchange Date with respect to such
Regulation S Global Note) or Regulation S Physical Note, in each case with the
agreement of the Issuers, or (iv) such Notes are sold or exchanged pursuant to
an effective registration statement under the Securities Act.
(5) Other Transfers. The Note Registrar shall effect and register,
upon receipt of a written request from the Issuers to do so, a transfer not
otherwise permitted by this Section 313, such registration to be done in
accordance with the otherwise applicable provisions of this Section 313, upon
the furnishing by the proposed transferor or transferee of a written opinion of
counsel (which opinion and counsel are satisfactory to the Issuers and the
Trustee) to the effect that, and such other certifications or information as the
Issuers or the Trustee may require (including, in the case of a transfer to an
Accredited Investor (as defined in Rule 501(a)(1), (2), (3) or (7) under
Regulation D promulgated under the Securities Act), a certificate substantially
in the form of Exhibit G) to confirm that, the proposed transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
A Note that is a Restricted Security may not be transferred other than
as provided in this Section 313. A beneficial interest in a Global Note that is
a Restricted Security may not be exchanged for a beneficial interest in another
Global Note other than through a transfer in compliance with this Section 313.
(6) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Note Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 312 or this Section
313 (including all Notes received for transfer pursuant to Section 313). The
Issuers shall have the right to require the Note Registrar to deliver to the
Issuers, at the Issuers' expense, copies of all such letters, notices or other
written communications at any reasonable time upon the giving of reasonable
written notice to the Note Registrar.
In connection with any transfer of any Note, the Trustee, the Note
Registrar and the Issuers shall be entitled to receive, shall be under no duty
to inquire into, may conclusively presume the correctness of, and shall be fully
protected in relying upon the certificates, opinions and other information
referred to herein (or in the forms provided herein, attached hereto or to the
Notes, or otherwise) received from any Holder and any transferee of any Note
regarding the validity, legality and due authorization of any such transfer, the
eligibility of the transferee to receive such Note and any other facts and
circumstances related to such transfer.
Section 314. Payment of Additional Interest.
(a) Under certain circumstances the Issuers will be obligated to pay
certain additional amounts of interest to the Holders of certain Initial Notes,
as more particularly set forth in such Initial Notes.
(b) Under certain circumstances the Issuers may be obligated to pay
certain additional amounts of interest to the Holders of certain Initial
Additional Notes, as may be more particularly set forth in such Initial
Additional Notes.
(c) Prior to any Interest Payment Date on which any such additional
interest is payable, the Issuers shall give notice to the Trustee of the amount
of any additional interest due on such Interest Payment Date.
Section 315. [Reserved].
ARTICLE IV
COVENANTS
Section 401. Payment of Principal, Premium and Interest. The Issuers
shall duly and punctually pay the principal of (and premium, if any) and
interest on the Notes in
accordance with the terms of the Notes and this Indenture. Principal amount
(and premium, if any) and interest on the Notes shall be considered paid on the
date due if the Issuers shall have deposited with the applicable Paying Agent
(if other than either of the Issuers or a wholly-owned Domestic Subsidiary of
either of the Issuers) as of 12:00 p.m. New York City time on the due date money
in immediately available funds and designated for and sufficient to pay all
principal amount (and premium, if any) and interest then due.
Section 402. Maintenance of Office or Agency.
(a) The Issuers shall maintain in the United States where Notes may be
presented or surrendered for payment, where Notes may be surrendered for
transfer or exchange and where notices and demands to or upon the Issuers in
respect of the Notes and this Indenture may be served. The Issuers shall give
prompt written notice to the Trustee of the location, and of any change in the
location, of such office or agency. If at any time the Issuers shall fail to
maintain such office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee.
(b) The Issuers 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 purposes and may from time to time rescind such designations.
The Issuers hereby designate (i) the Corporate Trust Office of the
Trustee as such office or agency of the Issuers where Notes may be presented or
surrendered for payment or for transfer or exchange for so long as such
Corporate Trust Office remains a Place of Payment, in accordance with Section
305 hereof.
Section 403. Money for Payments To Be Held in Trust. If an Issuer
shall at any time act as the Paying Agent, it shall, on or before 12:00 p.m.,
New York City time on each due date of the principal of (and premium, if any) or
interest on, any of the Notes, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal (and premium,
if any) or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and shall promptly notify
the Trustee of its action or failure so to act.
If an Issuer is not acting as the Paying Agent, the Issuers shall, on
or prior to 12:00 p.m., New York City time on each due date of the principal of
(and premium, if any) or interest on, any Notes, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or interest, so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Issuers shall promptly notify the Trustee of their action or
failure so to act.
If an Issuer is not acting as the Paying Agent, the Issuers shall
cause any Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section 403, that such Paying Agent shall
(1) hold all sums held by it for the payment of principal of (and
premium, if any) or interest on Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Issuers (or any
other obligor upon the Notes) in the making of any such payment of
principal (and premium, if any) or interest;
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
(4) acknowledge, accept and agree to comply in all respects with the
provisions of this Indenture and TIA relating to the duties, rights and
liabilities of such Paying Agent.
The Issuers may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuers Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Issuers or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Issuers or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Issuers, in trust for the payment of the principal of (and premium, if
any) or interest on any Note and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Issuers on Issuers Request, or (if then held by the Issuers) shall
be discharged from such trust; and the Holder of such Note shall thereafter, as
an unsecured general creditor, look only to the Issuers for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Issuers as trustee thereof, shall thereupon
cease.
Section 404. [Reserved].
Section 405. SEC Reports. Notwithstanding that the Issuers may not be
required to be or remain subject to the reporting requirements of Section 13(a)
or 15(d) of the Exchange Act, the Company or RSC will file with the SEC (unless
such filing is not permitted under the Exchange Act or by the SEC), so long as
the Notes are Outstanding, the annual reports, information, documents and other
reports that the Issuers are required to file with the SEC pursuant to such
Section 13(a) or 15(d) or would be so required to file if they were so subject.
The Company or RSC will also, within 15 days after the date on which the Company
or RSC, as applicable, as was so required to file or would be so required to
file if the Company or RSC, as applicable were so subject, transmit by mail to
all Holders, as their names and addresses appear in the Note Register, and to
the Trustee (or make available on a Company or RSC website) copies of any such
information, documents and reports (without exhibits) so required to be filed.
Notwithstanding the foregoing, if any audited or reviewed financial statements
or information required to be included in any such filing are not reasonably
available on a timely basis as a result
of the Company's or RSC's, as applicable, accountants not being "independent"
(as defined pursuant to the Exchange Act and the rules and regulations of the
SEC thereunder), the Company or RSC, as applicable, may, in lieu of making such
filing or transmitting or making available the information, documents and
reports so required to be filed, elect to make a filing on an alternative form
or transmit or make available unaudited or unreviewed financial statements or
information substantially similar to such required audited or reviewed financial
statements or information; provided that (a) the Company or RSC, as applicable,
shall in any event be required to make such filing and so transmit or make
available such audited or reviewed financial statements or information no later
than the first anniversary of the date on which the same was otherwise required
pursuant to the preceding provisions of this paragraph (such initial date, the
"Reporting Date") and (b) if the Company or RSC, as applicable, makes such an
election and such filing has not been made, or such information, documents and
reports have not been transmitted or made available, as the case may be, within
90 days after such Reporting Date, liquidated damages will accrue on the Notes
at a rate of 0.50% per annum from the date that is 90 days after such Reporting
Date to the earlier of (x) the date on which such filing has been made, or such
information, documents and reports have been transmitted or made available, as
the case may be, and (y) the first anniversary of such Reporting Date (provided
that not more than 0.50% per annum in liquidated damages shall be payable for
any period regardless of the number of such elections by the Company or RSC, as
applicable). The Company or RSC, as applicable will be deemed to have satisfied
the requirements of this Section 405 if any Parent files and provides reports,
documents and information of the types otherwise so required, in each case
within the applicable time periods, and the Company or RSC, as applicable, is
not required to file such reports, documents and information separately under
the applicable rules and regulations of the SEC (after giving effect to any
exemptive relief) because of the filings by such Parent. The Company or RSC, as
applicable, also will comply with the other provisions of TIA Section 314(a).
Section 406. Statement as to Default. The Issuers shall deliver to the
Trustee, within 120 days after the end of each fiscal year of the Issuers ending
after January 1, 2007, an Officer's Certificate to the effect that to the best
knowledge of the signer thereof neither of the Issuers is or is not in default
in the performance and observance of any of the terms, provisions and conditions
of this Indenture (without regard to any period of grace or requirement of
notice provided hereunder) and, if either of the Issuers shall be in default,
specifying all such defaults and the nature and status thereof of which such
signer may have knowledge. To the extent required by the TIA, each Subsidiary
Guarantor, if any, shall comply with TIA Section 314(a)(4). The individual
signing any certificate given by any Person pursuant to this Section 406 shall
be the principal executive, financial or accounting officer of such Person, in
compliance with TIA Section 314(a)(4).
Section 407. Limitation on Indebtedness.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, Incur any Indebtedness; provided, however, that the Company or
any Restricted Subsidiary may Incur Indebtedness if on the date of the
Incurrence of such Indebtedness, after giving effect to the Incurrence thereof,
the Consolidated Coverage Ratio would be greater than 2.00:1.00.
(b) Notwithstanding the foregoing paragraph (a), the Company and its
Restricted Subsidiaries may Incur the following Indebtedness:
(i) Indebtedness Incurred pursuant to any Credit Facility (including
but not limited to in respect of letters of credit or bankers' acceptances
issued or created thereunder) and Indebtedness Incurred other than under
any Credit Facility, and (without limiting the foregoing), in each case,
any Refinancing Indebtedness in respect thereof, in a maximum principal
amount at any time outstanding not exceeding in the aggregate the amount
equal to (A) $1,130.0 million, plus (B) the greater of (1) $1,900 million
less the aggregate principal amount of Indebtedness Incurred by Special
Purpose Entities that are Domestic Entities and then outstanding pursuant
to clause (ix) of this paragraph (b) and (2) an amount equal to the
Borrowing Base less the aggregate principal amount of Indebtedness Incurred
by Special Purpose Subsidiaries that are Domestic Subsidiaries and then
outstanding pursuant to clause (ix) of this paragraph (b), plus (C) in the
event of any refinancing of any such Indebtedness, the aggregate amount of
fees, underwriting discounts, premiums and other costs and expenses
incurred in connection with such refinancing;
(ii) Indebtedness (A) of any Restricted Subsidiary to the Company or
(B) of the Company or any Restricted Subsidiary to any Restricted
Subsidiary; provided that any subsequent issuance or transfer of any
Capital Stock of such Restricted Subsidiary to which such Indebtedness is
owed, or other event, that results in such Restricted Subsidiary ceasing to
be a Restricted Subsidiary or any other subsequent transfer of such
Indebtedness (except to the Company or a Restricted Subsidiary) will be
deemed, in each case, an Incurrence of such Indebtedness by the issuer
thereof not permitted by this clause (ii);
(iii) Indebtedness represented by the Notes issued on the Issue Date
(or any Notes issued in respect thereof or in exchange therefor) and the
Notes (other than any Additional Notes), any Indebtedness (other than the
Indebtedness described in clause (ii) above) outstanding on the Issue Date
and any Refinancing Indebtedness Incurred in respect of any Indebtedness
described in this clause (iii) or paragraph (a) above;
(iv) Purchase Money Obligations and Capitalized Lease Obligations, and
any Refinancing Indebtedness with respect thereto not to exceed the greater
of (A) $225.0 million and (B) 12% of Consolidated Tangible Assets, in an
aggregate amount outstanding at any one time;
(v) Indebtedness consisting of accommodation guarantees for the
benefit of trade creditors of the Company or any of its Restricted
Subsidiaries;
(vi) (A) Guarantees by the Company or any Restricted Subsidiary of
Indebtedness or any other obligation or liability of the Company or any
Restricted Subsidiary (other than any Indebtedness Incurred by the Company
or such Restricted Subsidiary, as the case may be, in violation of this
Section 407), or (B) without limiting Section 413, Indebtedness of the
Company or any Restricted Subsidiary arising by reason of any Lien granted
by or applicable to such Person securing Indebtedness of the Company or any
Restricted Subsidiary (other than any Indebtedness Incurred by the Company
or such Restricted Subsidiary, as the case may be, in violation of this
Section 407);
(vii) Indebtedness of the Company or any Restricted Subsidiary (A)
arising from the honoring of a check, draft or similar instrument of such
Person drawn against insufficient funds, provided that such Indebtedness is
extinguished within five Business Days of its Incurrence, or (B) consisting
of guarantees, indemnities, obligations in respect of earnouts or other
purchase price adjustments, or similar obligations, Incurred in connection
with the acquisition or disposition of any business, assets or Person after
the Issue Date;
(viii) Indebtedness of the Company or any Restricted Subsidiary in
respect of (A) letters of credit, bankers' acceptances or other similar
instruments or obligations issued, or relating to liabilities or
obligations incurred, in the ordinary course of business (including those
issued to governmental entities in connection with self-insurance under
applicable workers' compensation statutes), or (B) completion guarantees,
surety, judgment, appeal or performance bonds, or other similar bonds,
instruments or obligations, provided, or relating to liabilities or
obligations incurred, in the ordinary course of business, or (C) Hedging
Obligations, entered into for bona fide hedging purposes, or (D) the
financing of insurance premiums in the ordinary course of business, or (E)
netting, overdraft protection and other arrangements arising under standard
business terms of any bank at which the Issuers or any Restricted
Subsidiary maintains an overdraft, cash pooling or other similar facility
or arrangement;
(ix) Indebtedness (A) of a Special Purpose Subsidiary secured by a
Lien on all or part of the assets disposed of in, or otherwise Incurred in
connection with, a Financing Disposition or (B) otherwise Incurred in
connection with a Special Purpose Financing; provided that (1) such
Indebtedness is not recourse to the Company or any Restricted Subsidiary
that is not a Special Purpose Subsidiary (other than with respect to
Special Purpose Financing Undertakings), (2) in the event such Indebtedness
shall become recourse to the Company or any Restricted Subsidiary that is
not a Special Purpose Subsidiary (other than with respect to Special
Purpose Financing Undertakings), such Indebtedness will be deemed to be,
and must be classified by the Company as, Incurred at such time (or at the
time initially Incurred) under one or more of the other provisions of this
covenant for so long as such Indebtedness shall be so recourse; and (3) in
the event that at any time thereafter such Indebtedness shall comply with
the provisions of the preceding subclause (1), the Company may classify
such Indebtedness in whole or in part as Incurred under this Section
407(b)(ix);
(x) Indebtedness of any Person that is assumed by the Company or any
Restricted Subsidiary in connection with its acquisition of assets from
such Person or any Affiliate thereof or is issued and outstanding on or
prior to the date on which such Person was acquired by the Company or any
Restricted Subsidiary or merged or consolidated with or into any Restricted
Subsidiary (other than Indebtedness Incurred to finance, or otherwise
Incurred in connection with, such acquisition); provided that on the date
of such acquisition, merger or consolidation, after giving effect thereto,
the Company could
Incur at least $1.00 of additional Indebtedness pursuant to paragraph (a)
above; and any Refinancing Indebtedness with respect to any such
Indebtedness;
(xi) Indebtedness of any Foreign Subsidiary in an aggregate principal
amount at any time outstanding not exceeding an amount equal to the sum of
(A) the greater of (x) $100 million and (y) an amount equal to (1) the
Foreign Borrowing Base less (2) the aggregate principal amount of
Indebtedness Incurred by Special Purpose Entities that are Foreign Entities
and then outstanding pursuant to clause (ix) of this paragraph (b) and (B)
in the event of any refinancing of Indebtedness incurred under this clause
(xi), the aggregate amount of any fees, underwriting discount, premium and
other cost and expenses incurred in connection with such refinancing and
any Refinancing Indebtedness with respect to any such Indebtedness;
(xii) Contribution Indebtedness, and any Refinancing Indebtedness with
respect thereto; and
(xiii) Indebtedness of the Company or any Restricted Subsidiary in an
aggregate principal amount at any time outstanding not exceeding an amount
equal to the greater of (x) $200 million or (y) 10% of Consolidated
Tangible Assets.
(c) For purposes of determining compliance with, and the outstanding
principal amount of any particular Indebtedness Incurred pursuant to and in
compliance with, this Section 407, (i) any other obligation of the obligor on
such Indebtedness (or of any other Person who could have Incurred such
Indebtedness under this Section 407) arising under any Guarantee, Lien or letter
of credit, bankers' acceptance or other similar instrument or obligation
supporting such Indebtedness shall be disregarded to the extent that such
Guarantee, Lien or letter of credit, bankers' acceptance or other similar
instrument or obligation secures the principal amount of such Indebtedness; (ii)
in the event that Indebtedness meets the criteria of more than one of the types
of Indebtedness described in paragraph (b) above, the Company, in its sole
discretion, shall classify such item of Indebtedness and may include the amount
and type of such Indebtedness in one or more of such clauses (including in part
under one such clause and in part under another such clause); and (iii) the
amount of Indebtedness issued at a price that is less than the principal amount
thereof shall be equal to the amount of the liability in respect thereof
determined in accordance with GAAP.
(d) For purposes of determining compliance with any restriction on the
Incurrence of Indebtedness denominated in a foreign currency, the principal
amount of such Indebtedness Incurred pursuant thereto shall be calculated based
on the relevant currency exchange rate in effect on the date that such
Indebtedness was Incurred, in the case of term Indebtedness, or first committed,
in the case of revolving credit Indebtedness; provided that (x) the principal
amount of any such Indebtedness outstanding on the Issue Date shall be
calculated based on the relevant currency exchange rate in effect on the Issue
Date, (y) if such Indebtedness is Incurred to refinance other Indebtedness
denominated in a foreign currency (or in a different currency from such
Indebtedness so being Incurred), and such refinancing would cause the applicable
restriction to be exceeded if calculated at the relevant currency exchange rate
in effect on the date of such refinancing, such restriction shall be deemed not
to have been exceeded so long as the principal amount of such refinancing
Indebtedness does not exceed (i) the outstanding or committed
principal amount (whichever is higher) of such Indebtedness being refinanced
plus (ii) the aggregate amount of fees, underwriting discounts, premiums and
other costs and expenses incurred in connection with such refinancing and (z)
the principal amount of Indebtedness denominated in a foreign currency and
Incurred pursuant to a Senior Credit Facility shall be calculated based on the
relevant currency exchange rate in effect on, at the Company's option, (i) the
Issue Date, (ii) any date on which any of the respective commitments under such
Senior Credit Facility shall be reallocated between or among facilities or
subfacilities thereunder, or on which such rate is otherwise calculated for any
purpose thereunder, or (iii) the date of such Incurrence. The principal amount
of any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a
different currency from the Indebtedness being refinanced, shall be calculated
based on the currency exchange rate applicable to the currencies in which such
respective Indebtedness is denominated that is in effect on the date of such
refinancing.
Section 408. [Reserved].
Section 409. Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make
any distribution on or in respect of its Capital Stock (including any such
payment in connection with any merger or consolidation to which the Company is a
party) except (x) dividends or distributions payable solely in its Capital Stock
(other than Disqualified Stock) and (y) dividends or distributions payable to
the Company or any Restricted Subsidiary (and, in the case of any such
Restricted Subsidiary making such dividend or distribution, to other holders of
its Capital Stock on no more than a pro rata basis, measured by value), (ii)
purchase, redeem, retire or otherwise acquire for value any Capital Stock of the
Company held by Persons other than the Company or a Restricted Subsidiary (other
than any acquisition of Capital Stock deemed to occur upon the exercise of
options if such Capital Stock represents a portion of the exercise price
thereof), (iii) voluntarily purchase, repurchase, redeem, defease or otherwise
voluntarily acquire or retire for value, prior to scheduled maturity, scheduled
repayment or scheduled sinking fund payment, any Subordinated Obligations (other
than a purchase, repurchase, redemption, defeasance or other acquisition or
retirement for value in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case due within one year of the
date of such acquisition or retirement) or (iv) make any Investment (other than
a Permitted Investment) in any Person (any such dividend, distribution,
purchase, repurchase, redemption, defeasance, other acquisition or retirement or
Investment being herein referred to as a "Restricted Payment"), if at the time
the Company or such Restricted Subsidiary makes such Restricted Payment and
after giving effect thereto:
(1) a Default shall have occurred and be continuing (or would result
therefrom);
(2) the Company could not Incur at least an additional $1.00 of
Indebtedness pursuant to Section 407(a); or
(3) the aggregate amount of such Restricted Payment and all other
Restricted Payments (the amount so expended, if other than in cash, to be
as determined in good faith by the Board of Directors, whose determination
shall be conclusive and evidenced
by a resolution of the Board of Directors) declared or made subsequent to
the Issue Date and then outstanding would exceed, without duplication, the
sum of:
(A) 50% of the Consolidated Net Income accrued during the period
(treated as one accounting period) beginning on the Issue Date to the
end of the most recent fiscal quarter ending prior to the date of such
Restricted Payment for which consolidated financial statements of the
Company are available (or, in case such Consolidated Net Income shall
be a negative number, 100% of such negative number);
(B) the aggregate Net Cash Proceeds and the fair value (as
determined in good faith by the Board of Directors) of property or
assets received (x) by the Company as capital contributions to the
Company after the Issue Date or from the issuance or sale (other than
to a Restricted Subsidiary) of its Capital Stock (other than
Disqualified Stock) after the Issue Date (other than Excluded
Contributions and Contribution Amounts) or (y) by the Company or any
Restricted Subsidiary from the issuance and sale by the Company or any
Restricted Subsidiary after the Issue Date of Indebtedness that shall
have been converted into or exchanged for Capital Stock of the Company
or any Parent (other than Disqualified Stock), plus the amount of any
cash and the fair value (as determined in good faith by the Board of
Directors) of any property or assets, received by the Company or any
Restricted Subsidiary upon such conversion or exchange;
(D) the aggregate amount equal to the net reduction in
Investments in Unrestricted Subsidiaries resulting from (i) dividends,
distributions, interest payments, return of capital, repayments of
Investments or other transfers of assets to the Company or any
Restricted Subsidiary from any Unrestricted Subsidiary, including
dividends or other distributions related to dividends or other
distributions made pursuant to clause (x) of the following paragraph
(b), or (ii) the redesignation of any Unrestricted Subsidiary as a
Restricted Subsidiary (valued in each case as provided in the
definition of "Investment"), not to exceed in the case of any such
Unrestricted Subsidiary the aggregate amount of Investments (other
than Permitted Investments) made by the Company or any Restricted
Subsidiary in such Unrestricted Subsidiary after the Issue Date; and
(D) in the case of any disposition or repayment of any Investment
constituting a Restricted Payment (without duplication of any amount
deducted in calculating the amount of Investments at any time
outstanding included in the amount of Restricted Payments), an amount
in the aggregate equal to the lesser of the return of capital,
repayment or other proceeds with respect to all such Investments
received by the Company or a Restricted Subsidiary and the initial
amount of all such Investments constituting Restricted Payments.
(b) The provisions of Section 409(a) will not prohibit any of the
following (each, a "Permitted Payment"):
(i) any purchase, redemption, repurchase, defeasance or other
acquisition or retirement of Capital Stock of the Company or Subordinated
Obligations made by exchange (including any such exchange pursuant to the
exercise of a conversion right or privilege in connection with which cash
is paid in lieu of the issuance of fractional shares) for, or out of the
proceeds of the substantially concurrent issuance or sale of, Capital Stock
of the Company (other than Disqualified Stock and other than Capital Stock
issued or sold to a Subsidiary) or a substantially concurrent capital
contribution to the Company, in each case other than Excluded Contributions
and Contribution Amounts; provided that the Net Cash Proceeds from such
issuance, sale or capital contribution shall be excluded in subsequent
calculations under Section 409(a)(3)(B);
(ii) any purchase, redemption, repurchase, defeasance or other
acquisition or retirement of Subordinated Obligations (w) made by exchange
for, or out of the proceeds of the substantially concurrent issuance or
sale of, Indebtedness of the Company or Refinancing Indebtedness Incurred
in compliance with Section 407, (x) from Net Available Cash to the extent
permitted by Section 411(a)(iii)(C), (y) following the occurrence of a
Change of Control (or other similar event described therein as a "change of
control"), but only if the Company shall have complied with Section 415
and, if required, purchased all Notes tendered pursuant to the offer to
repurchase all the Notes required thereby, prior to purchasing or repaying
such Subordinated Obligations or (z) constituting Acquired Indebtedness;
(iii) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividend would have complied
with Section 409(a);
(iv) Investments or other Restricted Payments in an aggregate amount
outstanding at any time not to exceed the amount of Excluded Contributions;
(v) loans, advances, dividends or distributions by the Company to any
Parent to permit any Parent to repurchase or otherwise acquire its Capital
Stock (including any options, warrants or other rights in respect thereof),
or payments by the Company to repurchase or otherwise acquire Capital Stock
of any Parent or the Company (including any options, warrants or other
rights in respect thereof), in each case from Management Investors, such
payments, loans, advances, dividends or distributions not to exceed an
amount (net of repayments of any such loans or advances) equal to (x) (1)
$20.0 million, plus (2) $5.0 million multiplied by the number of calendar
years that have commenced since the Issue Date, plus (y) the Net Cash
Proceeds received by the Company since the Issue Date from, or as a capital
contribution from, the issuance or sale to Management Investors of Capital
Stock (including any options, warrants or other rights in respect thereof),
to the extent such Net Cash Proceeds are not included in any calculations
under Section 409(a)(3)(B)(x), plus (z) the cash proceeds of key man life
insurance policies received by the Company or any Restricted Subsidiary (or
by any Parent and contributed to the Company) since the Issue Date to the
extent such cash proceeds are not included in any calculation under Section
409(a)(3)(A);
(vi) the payment by the Company of, or loans, advances, dividends or
distributions by the Company to any Parent to pay, dividends on the common
stock or equity of
the Company or any Parent following a public offering of such common stock
or equity in an amount not to exceed in any fiscal year 6% of the aggregate
gross proceeds received by the Company (whether directly, or indirectly
through a contribution to common equity capital) in or from such public
offering;
(vii) Restricted Payments (including loans or advances) in an
aggregate amount outstanding at any time not to exceed an amount (net of
repayments of any such loans or advances) equal to $75.0 million;
(viii) loans, advances, dividends or distributions to any Parent or
other payments by the Company or any Restricted Subsidiary (A) to satisfy
or permit any Parent to satisfy obligations under the Management
Agreements, (B) pursuant to the Tax Sharing Agreement, or (C) to pay or
permit any Parent to pay any Parent Expenses or any Related Taxes;
(ix) payments by the Company, or loans, advances, dividends or
distributions by the Company to any Parent to make payments, to holders of
Capital Stock of the Company or any Parent in lieu of issuance of
fractional shares of such Capital Stock, not to exceed $3.0 million in the
aggregate;
(x) dividends or other distributions of Capital Stock, Indebtedness or
other securities of Unrestricted Subsidiaries;
(xi) any Restricted Payment pursuant to or in connection with the
Transactions; and
(xii) the declaration and payment of dividends to holders of any class
or series of Disqualified Stock, or of any Preferred Stock of a Restricted
Subsidiary, Incurred in accordance with the terms of the covenant described
under Section 407 above;
provided that (A) in the case of clauses (iii), (vi), (vii) and (ix), the net
amount of any such Permitted Payment shall be included in subsequent
calculations of the amount of Restricted Payments, (B) in the case of clause
(v), at the time of any calculation of the amount of Restricted Payments, the
net amount of Permitted Payments that have then actually been made under clause
(v) that is in excess of 50% of the total amount of Permitted Payments then
permitted under clause (v) shall be included in such calculation of the amount
of Restricted Payments, (C) in all cases other than pursuant to clauses (A) and
(B) immediately above, the net amount of any such Permitted Payment shall be
excluded in subsequent calculations of the amount of Restricted Payments and (D)
solely with respect to clause (vii), no Default or Event of Default shall have
occurred or be continuing at the time of any such Permitted Payment after giving
effect thereto.
Section 410. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company will not, and will not permit any
Restricted Subsidiary to, create or otherwise cause to exist or become effective
any consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to (i) pay dividends or make any other distributions on its Capital
Stock or pay any Indebtedness or other obligations owed to the Company, (ii)
make any loans or advances to the Company or (iii) transfer any of its property
or assets to the Company
(provided that dividend or liquidation priority between classes of Capital
Stock, or subordination of any obligation (including the application of any
remedy bars thereto) to any other obligation, will not be deemed to constitute
such an encumbrance or restriction), except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or entered
into on the Issue Date, any Credit Facility, this Indenture or the Notes;
(2) pursuant to any agreement or instrument of a Person, or relating
to Indebtedness or Capital Stock of a Person, which Person is acquired by
or merged or consolidated with or into the Company or any Restricted
Subsidiary, or which agreement or instrument is assumed by the Company or
any Restricted Subsidiary in connection with an acquisition of assets from
such Person, as in effect at the time of such acquisition, merger or
consolidation (except to the extent that such Indebtedness was incurred to
finance, or otherwise in connection with, such acquisition, merger or
consolidation); provided that for purposes of this clause (2), if a Person
other than the Company is the Successor Company with respect thereto, any
Subsidiary thereof or agreement or instrument of such Person or any such
Subsidiary shall be deemed acquired or assumed, as the case may be, by the
Company or a Restricted Subsidiary, as the case may be, when such Person
becomes such Successor Company;
(3) pursuant to an agreement or instrument (a "Refinancing Agreement")
effecting a refinancing of Indebtedness Incurred pursuant to, or that
otherwise extends, renews, refunds, refinances or replaces, an agreement or
instrument referred to in clause (1) or (2) of this Section 410 or this
clause (3) (an "Initial Agreement") or contained in any amendment,
supplement or other modification to an Initial Agreement (an "Amendment");
provided, however, that the encumbrances and restrictions contained in any
such Refinancing Agreement or Amendment taken as a whole are not materially
less favorable to the Holders of the Notes than encumbrances and
restrictions contained in the Initial Agreement or Initial Agreements to
which such Refinancing Agreement or Amendment relates (as determined in
good faith by the Company);
(4) (A) that restricts in a customary manner the subletting,
assignment or transfer of any property or asset that is subject to a lease,
license or similar contract, or the assignment or transfer of any lease,
license or other contract, (B) by virtue of any transfer of, agreement to
transfer, option or right with respect to, or Lien on, any property or
assets of the Company or any Restricted Subsidiary not otherwise prohibited
by this Indenture, (C) contained in mortgages, pledges or other security
agreements securing Indebtedness of a Restricted Subsidiary to the extent
restricting the transfer of the property or assets subject thereto, (D)
pursuant to customary provisions restricting dispositions of real property
interests set forth in any reciprocal easement agreements of the Company or
any Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that
impose encumbrances or restrictions on the property or assets so acquired,
(F) on cash or other deposits or net worth imposed by customers or
suppliers under agreements entered into in the ordinary course of business,
(G) pursuant to customary provisions contained in agreements and
instruments entered into in the ordinary course of business (including but
not
limited to leases and joint venture and other similar agreements entered
into in the ordinary course of business), (H) that arises or is agreed to
in the ordinary course of business and does not detract from the value of
property or assets of the Company or any Restricted Subsidiary in any
manner material to the Company or such Restricted Subsidiary, or (I)
pursuant to Hedging Obligations;
(5) with respect to a Restricted Subsidiary (or any of its property or
assets) imposed pursuant to an agreement entered into for the direct or
indirect sale or disposition of all or substantially all the Capital Stock
or assets of such Restricted Subsidiary (or the property or assets that are
subject to such restriction) pending the closing of such sale or
disposition;
(6) by reason of any applicable law, rule, regulation or order, or
required by any regulatory authority having jurisdiction over the Company
or any Restricted Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any
Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant
to the provisions of Section 407 (i) if the encumbrances and restrictions
contained in any such agreement or instrument taken as a whole are not
materially less favorable to the Holders of the Notes than the encumbrances
and restrictions contained in the Initial Agreements (as determined in
good faith by the Company), or (ii) if such encumbrance or restriction is
not materially more disadvantageous to the Holders of the Notes than is
customary in comparable financings (as determined in good faith by the
Company) and either (x) the Company determines in good faith that such
encumbrance or restriction will not materially affect the Company's
ability to make principal or interest payments on the Notes or (y) such
encumbrance or restriction applies only if a default occurs in respect of a
payment or financial covenant relating to such Indebtedness, (B) relating
to any sale of receivables by a Foreign Subsidiary or (C) relating to
Indebtedness of or a Financing Disposition by or to or in favor of any
Special Purpose Entity.
Section 411. Limitation on Sales of Assets and Subsidiary Stock.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, make any Asset Disposition unless
(i) the Company or such Restricted Subsidiary receives consideration
(including by way of relief from, or by any other Person assuming
responsibility for, any liabilities, contingent or otherwise) at the time
of such Asset Disposition at least equal to the fair market value of the
shares and assets subject to such Asset Disposition, as such fair market
value may be determined (and shall be determined, to the extent such Asset
Disposition or any series of related Asset Dispositions involves aggregate
consideration in excess of $25.0 million) in good faith by the Board of
Directors, whose determination shall be conclusive (including as to the
value of all noncash consideration),
(ii) in the case of any Asset Disposition (or series of related Asset
Dispositions) having a fair market value of $25.0 million or more, at least
75% of the consideration
therefor (excluding, in the case of an Asset Disposition (or series of
related Asset Dispositions), any consideration by way of relief from, or by
any other Person assuming responsibility for, any liabilities, contingent
or otherwise, that are not Indebtedness) received by the Company or such
Restricted Subsidiary is in the form of cash, and
(iii) an amount equal to 100% of the Net Available Cash from such
Asset Disposition is applied by the Company (or any Restricted Subsidiary,
as the case may be) as follows:
(A) first, either (x) to the extent the Issuers elect (or are
required by the terms of any Bank Indebtedness, any Senior
Indebtedness of the Issuers or any Subsidiary Guarantor or any
Indebtedness of a Restricted Subsidiary that is not a Subsidiary
Guarantor), to prepay, repay or purchase any such Indebtedness or (in
the case of letters of credit, bankers' acceptances or other similar
instruments) cash collateralize any such Indebtedness (in each case
other than Indebtedness owed to the Company or a Restricted
Subsidiary) within 365 days after the later of the date of such Asset
Disposition and the date of receipt of such Net Available Cash, or (y)
to the extent the Company or such Restricted Subsidiary elects, to
invest in Additional Assets (including by means of an investment in
Additional Assets by a Restricted Subsidiary with an amount equal to
Net Available Cash received by the Company or another Restricted
Subsidiary) within 365 days from the later of the date of such Asset
Disposition and the date of receipt of such Net Available Cash, or, if
such investment in Additional Assets is a project authorized by the
Board of Directors that will take longer than such 365 days to
complete, the period of time necessary to complete such project;
(B) second, to the extent of the balance of such Net Available
Cash after application in accordance with clause (A) above (such
balance, the "Excess Proceeds"), to make an offer to purchase Notes
and (to the extent the Issuers or such Restricted Subsidiary elects,
or is required by the terms thereof) to purchase, redeem or repay any
other Senior Indebtedness of the Issuers or a Restricted Subsidiary,
pursuant and subject to Section 411(b) and Section 411(c) and the
agreements governing such other Indebtedness; and
(C) third, to the extent of the balance of such Net Available
Cash after application in accordance with clauses (A) and (B) above,
to fund (to the extent consistent with any other applicable provision
of this Indenture) any general corporate purpose (including but not
limited to the repurchase, repayment or other acquisition or
retirement of any Subordinated Obligations);
provided, however, that in connection with any prepayment, repayment or purchase
of Indebtedness pursuant to clause (A)(x) or (B) above, the Company or such
Restricted Subsidiary will retire such Indebtedness and will cause the related
loan commitment (if any) to be permanently reduced in an amount equal to the
principal amount so prepaid, repaid or purchased.
Notwithstanding the foregoing provisions of this Section 411, the
Issuers and the Restricted Subsidiaries shall not be required to apply any Net
Available Cash or equivalent
amount in accordance with this Section 411 except to the extent that the
aggregate Net Available Cash from all Asset Dispositions or equivalent amount
that is not applied in accordance with this Section 411 exceeds $35.0 million.
If the aggregate principal amount of Notes or other Indebtedness of the Issuers
or a Restricted Subsidiary validly tendered and not withdrawn (or otherwise
subject to purchase, redemption or repayment) in connection with an offer
pursuant to clause (B) above exceeds the Excess Proceeds, the Excess Proceeds
will be apportioned between the Notes and such other Indebtedness of the Issuers
or a Restricted Subsidiary, with the portion of the Excess Proceeds payable in
respect of the Notes to equal the lesser of (x) the Excess Proceeds amount
multiplied by a fraction, the numerator of which is the outstanding principal
amount of the Notes and the denominator of which is the sum of the outstanding
principal amount of the Notes and the outstanding principal amount of the
relevant other Indebtedness of the Issuers or a Restricted Subsidiary, and (y)
the aggregate principal amount of Notes validly tendered and not withdrawn.
For the purposes of clause (ii) of paragraph (a) above, the following
are deemed to be cash: (1) Temporary Cash Investments and Cash Equivalents, (2)
the assumption of Indebtedness of the Company (other than Disqualified Stock of
the Company) or any Restricted Subsidiary and the release of the Company or such
Restricted Subsidiary from all liability on payment of the principal amount of
such Indebtedness in connection with such Asset Disposition, (3) Indebtedness of
any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result
of such Asset Disposition, to the extent that the Company and each other
Restricted Subsidiary are released from any Guarantee of payment of the
principal amount of such Indebtedness in connection with such Asset Disposition,
(4) securities received by the Company or any Restricted Subsidiary from the
transferee that are converted by the Company or such Restricted Subsidiary into
cash within 180 days, (5) consideration consisting of Indebtedness of the
Company or any Restricted Subsidiary, (6) Additional Assets and (7) any
Designated Noncash Consideration received by the Company or any of its
Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market
Value, taken together with all other Designated Noncash Consideration received
pursuant to this clause, not to exceed an aggregate amount at any time
outstanding equal to the greater of $50 million or 2.0% of Consolidated Tangible
Assets (with the Fair Market Value of each item of Designated Noncash
Consideration being measured at the time received and without giving effect to
subsequent changes in value).
(b) In the event of an Asset Disposition that requires the purchase of
Notes pursuant to Section 411(a)(iii)(B), the Issuers will be required to
purchase Notes tendered pursuant to an offer by the Company for the Notes (the
"Offer") at a purchase price of 100% of their principal amount plus accrued and
unpaid interest to the Purchase Date in accordance with the procedures
(including prorating in the event of oversubscription) set forth in Section 411
(c). If the aggregate purchase price of the Notes tendered pursuant to the
Offer is less than the Net Available Cash allotted to the purchase of Notes, the
remaining Net Available Cash will be available to the Issuers for use in
accordance with Section 411(a)(iii)(B) (to repay other Indebtedness of the
Company or a Restricted Subsidiary) or Section 411(a)(iii)(C). The Issuers
shall not be required to make an Offer for Notes pursuant to this Section 411 if
the Net Available Cash available therefor (after application of the proceeds as
provided Section 411(a)(iii)(A)) is less than $35.0 million for any particular
Asset Disposition (which lesser amounts shall be carried forward for purposes of
determining whether an Offer is required with respect to the Net
Available Cash from any subsequent Asset Disposition). No Note will be
repurchased in part if less than $2,000 in original principal amount of such
Note would be left outstanding.
(c) The Issuers shall, not later than 45 days after the Company
becomes obligated to make an Offer pursuant to this Section 411, mail a notice
to each Holder with a copy to the Trustee stating: (1) that an Asset Disposition
that requires the purchase of a portion of the Notes has occurred and that such
Holder has the right (subject to the prorating described below) to require the
Issuers to purchase a portion of such Holder's Notes at a purchase price in cash
equal to 100% of the principal amount thereof, plus accrued and unpaid interest,
if any, to the date of purchase (subject to Section 307); (2) the circumstances
and relevant facts and financial information regarding such Asset Disposition;
(3) the repurchase date (which shall be no earlier than 30 days nor later than
60 days from the date such notice is mailed); (4) the instructions determined
by the Issuers, consistent with this Section 411, that a Holder must follow in
order to have its Notes purchased; and (5) the amount of the Offer. If, upon the
expiration of the period for which the Offer remains open, the aggregate
principal amount of Notes surrendered by Holder exceeds the amount of the Offer,
the Issuers shall select the Notes to be purchased on a pro rata basis (with
such adjustments as may be deemed appropriate by the Issuers so that only Notes
in denominations of $2,000 or integral multiples of $1,000 in excess thereof
shall be purchased).
(d) The Issuers will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section 411. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 411, the Issuers will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 411 by virtue
thereof.
Section 412. Limitation on Transactions with Affiliates.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, enter into or conduct any transaction or
series of related transactions (including the purchase, sale, lease or exchange
of any property or the rendering of any service) with any Affiliate of the
Company (an "Affiliate Transaction") unless (i) the terms of such Affiliate
Transaction are not materially less favorable to the Company or such Restricted
Subsidiary, as the case may be, than those that could be obtained at the time in
a transaction with a Person who is not such an Affiliate and (ii) if such
Affiliate Transaction involves aggregate consideration in excess of $20.0
million, the terms of such Affiliate Transaction have been approved by a
majority of the Disinterested Directors and if such Affiliate Transaction
involves aggregate consideration in excess of $40.0 million, the Company shall
have obtained a fairness opinion from a nationally recognized appraisal or
investment banking firm with respect to such Affiliate Transaction. For purposes
of this Section 412(a), any Affiliate Transaction shall be deemed to have
satisfied the requirements set forth in this Section 412(a) if (x) such
Affiliate Transaction is approved by a majority of the Disinterested Directors
or (y) in the event there are no Disinterested Directors, a fairness opinion is
provided by a nationally recognized appraisal or investment banking firm with
respect to such Affiliate Transaction.
(b) The provisions of Section 412(a) will not apply to:
(i) any Restricted Payment Transaction,
(ii) (1) the entering into, maintaining or performance of any
employment contract, collective bargaining agreement, benefit plan, program
or arrangement, related trust agreement or any other similar arrangement
for or with any employee, officer or director heretofore or hereafter
entered into in the ordinary course of business, including vacation,
health, insurance, deferred compensation, severance, retirement, savings or
other similar plans, programs or arrangements, (2) the payment of
compensation, performance of indemnification or contribution obligations,
or any issuance, grant or award of stock, options, other equity-related
interests or other securities, to employees, officers or directors in the
ordinary course of business, (3) the payment of reasonable fees to
directors of the Company or any of its Subsidiaries (as determined in good
faith by the Company or such Subsidiary), (4) any transaction with an
officer or director in the ordinary course of business not involving more
than $100,000 in any one case, or (5) Management Advances and payments in
respect thereof (or in reimbursement of any expenses referred to in the
definition of such term),
(iii) any transaction with the Company, any Restricted Subsidiary, or
any Special Purpose Entity,
(iv) any transaction arising out of agreements or instruments in
existence on the Issue Date (other than any Tax Sharing Agreement or
Management Agreement referred to in Section 412(b)(vii), and any payments
made pursuant thereto,
(v) any transaction in the ordinary course of business on terms not
materially less favorable to the Company or the relevant Restricted
Subsidiary than those that could be obtained at the time in a transaction
with a Person who is not an Affiliate of the Company,
(vi) any transaction in the ordinary course of business, or approved
by a majority of the Board of Directors, between the Company or any
Restricted Subsidiary and any Affiliate of the Company controlled by the
Company that is a joint venture or similar entity,
(vii) the execution, delivery and performance of any Tax Sharing
Agreement and any Management Agreements, including payment to Ripplewood
or Oak Hill, or any of their respective Affiliates of fees of up to $6.0
million in the aggregate in any fiscal year, and fees in connection with
any acquisition, disposition, merger, recapitalization or similar
transaction as provided in any such Management Agreement, plus all
out-of-pocket expenses incurred by Ripplewood or Oak Hill or any such
Affiliate in connection with its performance of management consulting,
monitoring, financial advisory or other services with respect to the
Company and its Restricted Subsidiaries,
(viii) the Transactions, all transactions in connection therewith
(including but not limited to the financing thereof), and all fees and
expenses paid or payable in connection with the Transactions, and
(ix) any issuance or sale of Capital Stock (other than Disqualified
Stock) of the Company or capital contribution to the Company.
Section 413. Limitation on Liens. The Company shall not, and shall not
permit any Restricted Subsidiary to, directly or indirectly, create or permit to
exist any Lien (other than Permitted Liens) on any of its property or assets
(including Capital Stock of any other Person), whether owned on the date of this
Indenture or thereafter acquired, securing any Indebtedness (the "Initial
Lien"), unless contemporaneously therewith effective provision is made to secure
the Indebtedness due under this Indenture and the Notes or, in respect of Liens
on any Restricted Subsidiary's property or assets, any Subsidiary Guarantee of
such Restricted Subsidiary, equally and ratably with (or on a senior basis to,
in the case of Subordinated Obligations or Guarantor Subordinated Obligations)
such obligation for so long as such obligation is so secured by such Initial
Lien. Any such Lien thereby created in favor of the Notes or any such Subsidiary
Guarantee will be automatically and unconditionally released and discharged upon
(i) the release and discharge of the Initial Lien to which it relates, (ii) in
the case of any such Lien in favor of any such Subsidiary Guarantee, upon the
termination and discharge of such Subsidiary Guarantee in accordance with the
terms of Section 1303 or (iii) any sale, exchange or transfer (other than a
transfer constituting a transfer of all or substantially all of the assets of
the Company that is governed by Section 501) to any Person not an Affiliate of
the Company of the property or assets secured by such Initial Lien, or of all of
the Capital Stock held by the Company or any Restricted Subsidiary in, or all or
substantially all the assets of, any Restricted Subsidiary creating such Initial
Lien.
Section 414. Future Subsidiary Guarantors. From and after the Issue
Date, the Company will cause each Domestic Subsidiary that guarantees payment by
the Company of any Indebtedness of the Issuers under the Senior Credit
Facilities to execute and deliver to the Trustee a supplemental indenture or
other instrument pursuant to which such Domestic Subsidiary will guarantee
payment of the Notes, whereupon such Domestic Subsidiary will become a
Subsidiary Guarantor for all purposes under this Indenture. In addition, the
Company may cause any Subsidiary that is not a Subsidiary Guarantor so to
guarantee payment of the Notes and become a Subsidiary Guarantor.
Section 415. Purchase of Notes upon a Change in Control.
(a) Upon the occurrence after the Issue Date of a Change of Control,
each Holder of Notes will have the right to require the Issuers to repurchase
all or any part of such Notes at a purchase price in cash equal to 101% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the date
of repurchase (subject to Section 307); provided, however, that the Issuers
shall not be obligated to repurchase Notes pursuant to this Section 415 in the
event that they have exercised their right to redeem all of the Notes as
provided in Article X.
(b) [RESERVED].
(c) Unless the Issuers exercised their right to redeem all the Notes
as described under Article X, the Issuers shall, not later than 30 days
following the date the Company obtains actual knowledge of any Change of Control
having occurred, mail a notice (a "Change of Control Offer") to each Holder with
a copy to the Trustee stating: (1) that a Change of Control has occurred or may
occur and that such Holder has, or upon such occurrence will have, the right to
require the Issuers to purchase such Holder's Notes at a purchase price in cash
equal to 101% of the principal amount thereof, plus accrued and unpaid interest,
if any, to the date of purchase (subject to the right of Holders of record on a
record date to receive interest on the relevant interest payment date); (2) the
circumstances and relevant facts and financial information regarding such Change
of Control; (3) the repurchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed); (4) the instructions
determined by the Company, consistent with this Section 415, that a Holder must
follow in order to have its Notes purchased; and (5) if such notice is mailed
prior to the occurrence of a Change of Control, that such offer is conditioned
on the occurrence of such Change of Control. No Note will be repurchased in part
if less than $2,000 in original principal amount of such Note would be left
outstanding.
(d) The Issuers will 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 the Indenture applicable to a Change of Control Offer made by the
Issuers and purchases all Notes validly tendered and not withdrawn under such
Change of Control Offer.
(e) The Issuers will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section 415. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 415, the Issuers will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 415 by virtue
thereof.
ARTICLE V
SUCCESSORS
Section 501. When the Issuers May Merge, etc.
(a) Neither Issuer will consolidate with or merge with or into, or
convey, transfer or lease all or substantially all its assets to, any Person,
unless:
(i) the resulting, surviving or transferee Person (the "Successor
Company") will be a Person organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia and
the Successor Company (if not such Issuer) will expressly assume all the
obligations of such Issuer under the Notes and this Indenture by executing
and delivering to the Trustee a supplemental indenture or one or more other
documents or instruments in form reasonably satisfactory to the Trustee;
(ii) immediately after giving effect to such transaction (and treating
any Indebtedness that becomes an obligation of the Successor Company or any
Restricted
Subsidiary as a result of such transaction as having been Incurred by the
Successor Company or such Restricted Subsidiary at the time of such
transaction), no Default will have occurred and be continuing;
(iii) immediately after giving effect to such transaction, either (A)
the Successor Company could Incur at least $1.00 of additional Indebtedness
pursuant to Section 407(a), or (B) the Consolidated Coverage Ratio of the
Issuers (or, if applicable, the Successor Company with respect thereto)
would equal or exceed the Consolidated Coverage Ratio of the Issuers
immediately prior to giving effect to such transaction;
(iv) each applicable Subsidiary Guarantor (other than (x) any
Subsidiary Guarantor that will be released from its obligations under its
Subsidiary Guarantee in connection with such transaction and (y) any party
to any such consolidation or merger) shall have delivered a supplemental
indenture or other document or instrument in form reasonably satisfactory
to the applicable Trustee, confirming its Subsidiary Guarantee (other than
any Subsidiary Guarantee that will be discharged or terminated in
connection with such transaction); and
(v) the applicable Issuer will have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each to the effect that
such consolidation, merger or transfer complies with the provisions
described in this paragraph; provided that (x) in giving such opinion such
counsel may rely on an Officer's Certificate as to compliance with the
foregoing clauses (ii) and (iii) and as to any matters of fact, and (y) no
Opinion of Counsel will be required for a consolidation, merger or transfer
described in Section 501(b).
Any Indebtedness that becomes an obligation of an Issuer or any
Restricted Subsidiary (or that is deemed to be Incurred by any Restricted
Subsidiary that becomes a Restricted Subsidiary) as a result of any such
transaction undertaken in compliance with this Section 501, and any Refinancing
Indebtedness with respect thereto, shall be deemed to have been Incurred in
compliance with Section 407.
(b) Clauses (ii) and (iii) of Section 501(a) will not apply to any
transaction in which (1) any Restricted Subsidiary consolidates with, merges
into or transfers all or part of its assets to an Issuer or (2) an Issuer
consolidates or merges with or into or transfers all or substantially all its
properties and assets to (x) an Affiliate incorporated or organized for the
purpose of reincorporating or reorganizing such Issuer in another jurisdiction
or changing its legal structure to a corporation or other entity or (y) a
Restricted Subsidiary of an Issuer so long as all assets of such Issuer and the
Restricted Subsidiaries immediately prior to such transaction (other than
Capital Stock of such Restricted Subsidiary) are owned by such Restricted
Subsidiary and its Restricted Subsidiaries immediately after the consummation
thereof. Section 501(a) will not apply to the Transactions.
Section 502. Successor Company Substituted. Upon any transaction
involving the Issuers in accordance with Section 501 in which the Issuers are
not the Successor Company, the Successor Company shall succeed to, and be
substituted for, and may exercise every right and power of, the applicable
Issuer under this Indenture, and thereafter the predecessor Issuer
shall be relieved of all obligations and covenants under this Indenture, except
that the predecessor Issuer in the case of a lease of all or substantially all
its assets shall not be released from the obligation to pay the principal of and
interest on the Notes.
ARTICLE VI
REMEDIES
Section 601. Events of Default. An "Event of Default" means the
occurrence of the following:
(i) a default in any payment of interest on any Note when due,
continued for a period of 30 days;
(ii) a default in the payment of principal of any Note when due,
whether at its Stated Maturity, upon optional redemption, upon required
repurchase, upon declaration of acceleration or otherwise;
(iii) the failure by either Issuer to comply with its obligations
under Section 501(a);
(iv) the failure by the Issuers to comply for 30 days after the notice
specified in the penultimate paragraph of this Section 601 with any of
their obligations under Section 415 (other than a failure to purchase the
Notes);
(v) the failure by either Issuer to comply for 60 days after the
notice specified in the penultimate paragraph of this Section 601 with its
other agreements contained in the Notes or this Indenture;
(vi) the failure by any applicable Subsidiary Guarantor to comply for
45 days after the notice specified in the penultimate paragraph of this
Section 601 with its obligations under its Subsidiary Guarantee;
(vii) the failure by either Issuer or any Restricted Subsidiary to pay
any Indebtedness within any applicable grace period after final maturity or
the acceleration of any such Indebtedness by the holders thereof because of
a default, if the total amount of such Indebtedness so unpaid or
accelerated exceeds $50.0 million or its foreign currency equivalent;
provided that no Default or Event of Default will be deemed to occur with
respect to any such accelerated Indebtedness that is paid or otherwise
acquired or retired within 20 Business Days after such acceleration;
(viii) the taking of any of the following actions by either Issuer or
a Significant Subsidiary, or by each of such other Restricted Subsidiaries
that are not Significant Subsidiaries but would in the aggregate constitute
a Significant Subsidiary if considered as a single Person, pursuant to or
within the meaning of any Bankruptcy Law:
(A) the commencement of a voluntary case;
(B) the consent to the entry of an order for relief against it in
an involuntary case;
(C) the consent to the appointment of a Custodian of it or for
any substantial part of its property; or
(D) the making of a general assignment for the benefit of its
creditors;
(ix) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against either Issuer or any Significant
Subsidiary, or against each of such other Restricted Subsidiaries that
are not Significant Subsidiaries but would in the aggregate
constitute a Significant Subsidiary if considered as a single Person,
in an involuntary case;
(B) appoints (x) a Custodian of either Issuer or any Significant
Subsidiary or for any substantial part of its property, or (y) a
Custodian of each of such other Restricted Subsidiaries that are not
Significant Subsidiaries but would in the aggregate constitute a
Significant Subsidiary if considered as a single Person, or for any
substantial part of their property in the aggregate; or
(C) orders the winding up or liquidation of either Issuer or any
Significant Subsidiary, or of each of such other Restricted
Subsidiaries that are not Significant Subsidiaries but would in the
aggregate constitute a Significant Subsidiary if considered as a
single Person;
and the order or decree remains unstayed and in effect for 60 days;
(x) the rendering of any judgment or decree for the payment of money
in an amount (net of any insurance or indemnity payments actually received
in respect thereof prior to or within 90 days from the entry thereof, or to
be received in respect thereof in the event any appeal thereof shall be
unsuccessful) in excess of $50.0 million or its foreign currency equivalent
against either Issuer or a Significant Subsidiary, or jointly and severally
against other Restricted Subsidiaries that are not Significant Subsidiaries
but would in the aggregate constitute a Significant Subsidiary if
considered as a single Person, that is not discharged, or bonded or insured
by a third Person, if such judgment or decree remains outstanding for a
period of 90 days following such judgment or decree and is not discharged,
waived or stayed; or
(xi) the failure of any Subsidiary Guarantee, if any, by a Subsidiary
Guarantor, if any, that is a Significant Subsidiary to be in full force and
effect (except as contemplated by the terms thereof or of this Indenture)
or the denial or disaffirmation in writing by any Subsidiary Guarantor that
is a Significant Subsidiary of its obligations under this Indenture or its
Subsidiary Guarantee (other than by reason of the termination of this
Indenture or such Subsidiary Guarantee or the release of such Subsidiary
Guarantee in
accordance with such Subsidiary Guarantee and this Indenture), if such
Default continues for 10 days.
The foregoing will constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
However, a Default under clause (iv), (v) or (vi) will not constitute
an Event of Default until the Trustee or the Holders of at least 25% in
principal amount of the Outstanding Notes notify the Issuers of the Default and
the applicable Issuer does not cure such Default within the time specified in
such clause after receipt of such notice. Such notice must specify the Default,
demand that it be remedied and state that such notice is a "Notice of Default."
When a Default or an Event of Default is cured, it ceases.
The Issuers shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officer's Certificate of
any Event of Default under clause (vii) or (x) and any event that with the
giving of notice or the lapse of time would become an Event of Default under
clause (iv), (v) or (vi), its status and what action the Issuers are taking or
propose to take with respect thereto.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar Federal, state or foreign law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
Section 602. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default (other than an Event of Default specified in Section 601(viii)
or Section 601(ix)) occurs and is continuing, the Trustee by notice to the
Issuers, or the Holders of at least twenty-five percent (25%) in principal
amount of the Outstanding Notes by notice to the Issuers and the Trustee, in
either case specifying in such notice the respective Event of Default and that
such notice is a "notice of acceleration," may declare the principal of and
accrued but unpaid interest on all the Notes to be due and payable. Upon the
effectiveness of such a declaration, such principal and interest will be due and
payable immediately.
Notwithstanding the foregoing, if an Event of Default specified in
Section 601(viii) or Section 601(ix) occurs and is continuing, the principal
of and accrued interest on all the Outstanding Notes will ipso facto become
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder. The Holders of a majority in principal amount of the
Outstanding Notes by notice to the Issuers and the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have been cured or
waived except non-payment of principal or interest that has become due solely
because of such acceleration. No such rescission shall affect any subsequent
Default or impair any right consequent thereto.
Section 603. Other Remedies; Collection Suit by Trustee. If an Event
of Default occurs and is continuing, the Trustee may, but is not obligated under
Section 603 to, pursue any available remedy to collect the payment of principal
of or interest on the Notes or to enforce
the performance of any provision of the Notes or this Indenture. If an Event of
Default specified in Section 601(i) or 601(ii) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Issuers for the whole amount then due and owing (together with
interest on any unpaid interest to the extent lawful) and the amounts provided
for in Section 707.
Section 604. Trustee May File Proofs of Claim. The Trustee may 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 and the Holders allowed in
any judicial proceedings relative to the Issuers or any other obligor upon the
Notes, its creditors or its property and, unless prohibited by law or applicable
regulations, may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any Custodian in
any such judicial proceeding is hereby authorized by each Holder to make
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 it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 707.
No provision of this Indenture 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 thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 605. Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Notes in respect of which such judgment has been recovered.
Section 606. Application of Money Collected. Any money collected by
the Trustee pursuant to this Article VI shall be applied in the following order,
at the date or dates fixed by the Trustee and, in case of the distribution of
such money on account of principal (or premium, if any) or interest, upon
presentation of the Notes and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
707;
Second: To the payment of the amounts then due and unpaid upon the
Notes for principal (and premium, if any) and interest, in respect of which
or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Notes for principal (and premium, if any) and interest,
respectively; and
Third: to the Issuers.
Section 607. Limitation on Suits. Subject to Section 608 hereof, no
Holder may pursue any remedy with respect to this Indenture or the Notes unless:
(i) such Holder has previously given the Trustee written notice that
an Event of Default is continuing;
(ii) Holders of at least 25% in principal amount of the Outstanding
Notes have requested the Trustee in writing to pursue the remedy;
(iii) such Holder or Holders have offered to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(iv) the Trustee has not complied with the request within 60 days
after receipt of the request and the offer of security or indemnity; and
(v) the Holders of a majority in principal amount of the Outstanding
Notes have not given the Trustee a direction inconsistent with the request
within such 60-day period.
A Holder may not use this Indenture to affect, disturb or prejudice
the rights of another Holder, to obtain a preference or priority over another
Holder or to enforce any right under this Indenture except in the manner herein
provided and for the equal and ratable benefit of all Holders.
Section 608. Unconditional Right of Holders To Receive Principal and
Interest. Notwithstanding any other provision in this Indenture, the Holder of
any Note shall have the absolute and unconditional right to receive payment of
the principal of and all (subject to Section 307) interest on such Note on the
respective Stated Maturity or Interest Payment Dates expressed in such Note and
to institute suit for the enforcement of any such payment on or after such
respective Stated Maturity or Interest Payment Dates, and such right shall not
be impaired without the consent of such Holder.
Section 609. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture or any Note and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case the Issuers, any other obligor upon the Notes, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 610. Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 611. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Note to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article VI or by law to the Trustee or to the Holders may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
Section 612. Control by Holders. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Notes shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or power conferred on
the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture or, subject to Section 701, that the Trustee
determines is unduly prejudicial to the rights of any other Holder or that would
involve the Trustee in personal liability; provided, however, that the Trustee
may take any other action deemed proper by the Trustee that is not inconsistent
with such direction. Prior to taking any action under this Indenture, the
Trustee shall be entitled to indemnification satisfactory to it in its sole
discretion against all losses and expenses caused by taking or not taking such
action. This Section 612 shall be in lieu of Section 316(a)(1)(A) of the TIA,
and such Section 316(a)(1)(A) of the TIA is hereby expressly excluded from this
Indenture and the Notes, as permitted by the TIA.
Section 613. Waiver of Past Defaults. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Notes may on behalf of
the Holders of all the Notes waive any past Default hereunder and its
consequences (provided that if any such waiver will only affect the Notes then
Outstanding under this Indenture, then only the Holders of not less than a
majority in aggregate principal amount of the Notes then Outstanding may on
behalf of the Holders of all the Notes, waive such past Default and its
consequences), except a Default
(1) in the payment of the principal of or interest on any Note (which
may only be waived with the consent of each Holder of Notes affected), or
(2) in respect of a covenant or provision hereof that pursuant to the
second paragraph of Section 902 cannot be modified or amended without the
consent of the Holder of each Outstanding Note affected.
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 Event of Default
or impair any right consequent thereon. In case of any such waiver, the Issuers,
any other obligor upon the Notes, the Trustee and the Holders shall be restored
to their former positions and rights hereunder and under the Notes,
respectively. This paragraph of this Section 613 shall be in lieu of Section
316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) of the TIA is hereby
expressly excluded from this Indenture and the Notes, as permitted by the TIA.
Section 614. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note by such Holder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture or the Notes, or
in any suit against the Trustee for any action taken, suffered or omitted by it
as Trustee, the filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant. This Section 614 shall not apply
to any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount of
the Outstanding Notes, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Note on or after the respective Stated Maturity or Interest Payment Dates
expressed in such Note.
Section 615. Waiver of Stay, Extension or Usury Laws. The Issuers (to
the extent that they may lawfully do so) shall not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law or any usury or other similar law wherever enacted,
now or at any time hereafter in force, that would prohibit or forgive the
Issuers from paying all or any portion of the principal of (or premium, if any)
or interest on the Notes contemplated herein or in the Notes or that may affect
the covenants or the performance of this Indenture; and the Issuers (to the
extent that they may lawfully do so) hereby expressly waive all benefit or
advantage of any such law, and shall not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE VII
THE TRUSTEE
Section 701. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or opinions
that by any provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture, but need not verify the contents thereof.
(b) In case 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 their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that (i) this paragraph does not
limit the effect of Section 701(a); (ii) the Trustee shall not be liable for any
error of judgment made in good faith by a Trust 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 612.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur financial liability in the performance
of any of its duties hereunder or in the exercise of any of its rights or
powers, if it shall have reasonable grounds to believe that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 701 and Section 703.
Section 702. Notice of Defaults. If a Default occurs and is continuing
and is known to the Trustee, the Trustee must mail within 90 days after it
occurs, to all Holders as their names and addresses appear in the Note Register,
notice of such Default hereunder known to the Trustee unless such Default shall
have been cured or waived; provided, however, that, except in the case of a
Default in the payment of the principal of, premium, if any, or interest on any
Note, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders.
Section 703. Certain Rights of Trustee. Subject to the provisions of
Section 701:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(2) any request or direction of the Issuers mentioned herein shall be
sufficiently evidenced by an Issuer Request or Issuers Order thereof, and
any resolution of any Person's board of directors shall be sufficiently
evidenced if certified by an Officer of such Person as having been duly
adopted and being in full force and effect on the date of such certificate;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's Certificate of the Issuers;
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) 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 pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(6) 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, note, other evidence of indebtedness or other paper or document; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 704. Not Responsible for Recitals or Issuance of Notes. The
recitals contained herein and in the Notes, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuers, and neither the
Trustee nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Notes, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Notes and perform its obligations hereunder and that the
statements made by it in a Statement of Eligibility and Qualification on Form
T-l supplied to the Issuers and any other obligor upon the Notes in connection
with the registration of any Notes and any Subsidiary Guarantees issued
hereunder are and will be true and accurate subject to the qualifications set
forth therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Issuers of the Notes or the
proceeds thereof.
Section 705. May Hold Notes. The Trustee, any Authenticating Agent,
any Paying Agent, any Note Registrar or any other agent of the Issuers, in its
individual or any other capacity, may become the owner or pledgee of Notes and,
subject to Section 708 and Section 713, may otherwise deal with the Issuers or
their Affiliates with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Note Registrar or such other agent.
Section 706. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Issuers.
Section 707. Compensation and Reimbursement. The Issuers agree
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by the Trustee hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable out-of-pocket expenses incurred
by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and disbursements
of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on the
Trustee's part, arising out of or in connection with the administration of
the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The Issuers need not pay for any settlement made without its consent. The
provisions of this Section 707 shall survive the termination of this Indenture.
Section 708. Conflicting Interests. If the Trustee has or shall
acquire a conflicting interest within the meaning of the TIA, the Trustee shall
eliminate such interest, apply to the SEC for permission to continue as Trustee
with such conflict or resign, to the extent and in the manner provided by, and
subject to the provisions of, the TIA and this Indenture. To the extent
permitted by the TIA, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Original Notes and Additional Notes, or a trustee under any other indenture
between the Issuers and the Trustee.
Section 709. Corporate Trustee Required; Eligibility. There shall at
all times be one (and only one) Trustee hereunder. The Trustee shall be a Person
that is eligible pursuant to the TIA to act as such and has a combined capital
and surplus of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section and to
the extent permitted by the TIA, the combined capital and surplus of such Person
shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 709, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
Section 710. Resignation and Removal; Appointment of Successor. No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 711.
The Trustee may resign at any time by giving written notice thereof to
the Issuers. If the instrument of acceptance by a successor Trustee required by
Section 711 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Notes, delivered to the Trustee
and to the Issuers.
If at any time:
(1) the Trustee shall fail to comply with Section 708 after written
request therefor by the Issuers or by any Holder who has been a bona fide
Holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible under Section 709 and shall
fail to resign after written request therefor by the Issuers or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (A) the Issuers may remove the Trustee, or (B) subject
to Section 614, any Holder who has been a bona fide Holder of a Note for at
least six months may, on behalf of itself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Issuers
shall promptly appoint a successor Trustee and shall comply with the applicable
requirements of Section 711. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Notes delivered to the Issuers and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 711,
become the successor Trustee and to that extent supersede the successor Trustee
appointed by the Issuers. If no successor Trustee shall have been so appointed
by the Issuers or the Holders and accepted appointment in the manner required by
Section 711, then, subject to Section 614, any Holder who has been a bona fide
Holder of a Note for at least six months may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
The Issuers shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 110. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
Section 711. Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Trustee, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Issuers and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Issuers or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
Upon request of any such successor Trustee, the Issuers shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to above.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article VII.
Section 712. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article VII,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Notes shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Notes so authenticated with the same effect as if
such successor Trustee had itself authenticated such Notes.
Section 713. Preferential Collection of Claims Against the Issuers. If
and when the Trustee shall be or become a creditor of the Issuers (or any other
obligor upon the Notes), the Trustee shall be subject to the provisions of the
TIA regarding the collection of claims against the Issuers (or any such other
obligor) or realizing on certain property received by it in respect of such
claims.
Section 714. Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent acceptable to the Issuers to authenticate the
Notes. Any such appointment shall be evidenced by an instrument in writing
signed by a Trust Officer, a copy of which instrument shall be promptly
furnished to the Issuers. Unless limited by the terms of such appointment, an
Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication (or execution of a certificate of
authentication) by the Trustee includes authentication (or execution of a
certificate of authentication) by such Authenticating Agent. An Authenticating
Agent has the same rights as any Registrar, Paying Agent or agent for service of
notices and demands.
ARTICLE VIII
HOLDERS' LISTS AND REPORTS BY
TRUSTEE AND THE ISSUERS
Section 801. The Issuers To Furnish Trustee Names and Addresses of
Holders. The Issuers will furnish or cause to be furnished to the Trustee
(1) semi-annually, not more than 10 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date, and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Issuers of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that if and to the extent and so long as the Trustee shall be
the Note Registrar, no such list need be furnished pursuant to this Section 801.
Section 802. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably practicable,
the names and addresses of Holders contained in the most recent list, if any,
furnished to the Trustee as provided in Section 801 and the names and addresses
of Holders received by the Trustee in its capacity as Note Registrar; provided,
however, that if and so long as the Trustee shall be the Note Registrar, the
Note Register shall satisfy the requirements relating to such list. None of the
Issuers, any Subsidiary Guarantor or the Trustee or any other Person shall be
under any responsibility with regard to the accuracy of such list. The Trustee
may destroy any list furnished to it as provided in Section 801 upon receipt of
a new list so furnished.
The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Notes, and the corresponding
rights and privileges of the Trustee, shall be as provided by the TIA.
Every Holder of Notes, by receiving and holding the same, agrees with
the Issuers and the Trustee that none of the Issuers, the Trustee or any agent
of any of them, shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the TIA.
Section 803. Reports by Trustee. Within 60 days after each December
15, beginning with December 15, 2007, the Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this Indenture as may be
required pursuant to the TIA at the times and in the manner provided pursuant
thereto for so long as any Notes remain outstanding. A copy of each such report
shall, at the time of such transmission to Holders, be filed by the Trustee or
any applicable listing agent with each stock exchange upon which any Notes are
listed, with the SEC and with the Issuers. The Issuers will notify the Trustee
when any Notes are listed on any stock exchange.
ARTICLE IX
AMENDMENT, SUPPLEMENT OR WAIVER
Section 901. Without Consent of Holders. Without the consent of the
Holders of any Notes, the Issuers, the Trustee and (as applicable) each
Subsidiary Guarantor, if any, may amend or supplement this Indenture or the
Notes, for any of the following purposes:
(1) to cure any ambiguity, manifest error, omission, defect or
inconsistency,
(2) to provide for the assumption by a Successor Company of the
obligations of the either Issuer or a Subsidiary Guarantor, if any, under
this Indenture,
(3) to provide for uncertificated Notes in addition to or in place of
certificated Notes,
(4) to add Guarantees with respect to the Notes, to secure the Notes,
to confirm and evidence the release, termination or discharge of any
Guarantee or Lien with respect to or securing the Notes when such release,
termination or discharge is provided for under this Indenture,
(5) to add to the covenants of the Issuers for the benefit of the
Holders or to surrender any right or power conferred upon the Issuers,
(6) to provide for or confirm the issuance of Additional Notes,
(7) to conform the text of this Indenture, the Notes or any Subsidiary
Guarantee to any provision of the "Description of the Notes" section of the
Offering Memorandum to the extent that such provision in such "Description
of the Notes" section was intended to be a verbatim recitation of a
provision of this Indenture, Guarantee or the Notes,
(8) to increase the minimum denomination of the Notes to equal the
dollar equivalent of E1,000 rounded up to the nearest $1,000 (including for
purposes of redemption or repurchase of any Note in part),
(9) to make any change that does not materially adversely affect the
rights of any Holder under the Notes or this Indenture, or
(10) to comply with any requirement of the SEC in connection with the
qualification of this Indenture under the TIA or otherwise.
Section 902. With Consent of Holders. Subject to Section 608, the
Issuers and the Trustee and (if applicable) each Subsidiary Guarantor may amend
or supplement this Indenture or the Notes with the written consent of the
Holders of a majority in aggregate principal amount of the Outstanding Notes
(including consents obtained in connection with a tender offer or exchange offer
for Notes), provided that if any such amendment or waiver will only affect the
Notes then Outstanding under this Indenture, then only the consent of the
Holders of a majority in principal amount of the Notes then Outstanding
(including, in each case, consents obtained in connection with a tender offer or
exchange offer for Notes), as the case may be, shall be required and the Holders
of not less than a majority in aggregate principal amount of the Outstanding
Notes by written notice to the Trustee (including consents obtained in
connection with a tender offer or exchange offer for Notes) may waive any
existing Default or Event of Default or compliance by the Issuers or any
Subsidiary Guarantor with any provision of this Indenture, the Notes or any
Subsidiary Guarantee.
Notwithstanding the provisions of this Section 902, without the
consent of each Holder affected, an amendment or waiver, including a waiver
pursuant to Section 613, may not:
(i) reduce the principal amount of the Notes whose Holders must
consent to an amendment or waiver;
(ii) reduce the rate of or extend the time for payment of interest on
any Note;
(iii) reduce the principal of or extend the Stated Maturity of any
Note;
(iv) reduce the premium payable upon the redemption of any Note or
change the date on which any Note may be redeemed as described in Section
1001;
(v) make any Note payable in money other than that stated in such
Note;
(vi) impair the right of any Holder to receive payment of principal of
and interest on such Holder's Notes on or after the due dates therefor or
to institute suit for the enforcement of any such payment on or with
respect to such Holder's Notes; or
(vii) make any change in the amendment or waiver provisions described
in this paragraph.
It shall not be necessary for the consent of the Holders under this
Section 902 to approve the particular form of any proposed amendment, supplement
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 902
becomes effective, the Issuers shall mail to the Holders, with a copy to the
Trustee, a notice briefly describing the amendment, supplement or waiver. Any
failure of the Issuers to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any supplemental indenture or the effectiveness of any such amendment,
supplement or waiver.
Section 903. Execution of Amendments, Supplements or Waivers. The
Trustee shall sign any amendment, supplement or waiver authorized pursuant to
this Article IX if the amendment, supplement or waiver does not adversely affect
the rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign it. In signing or refusing to sign such
amendment, supplement or waiver, the Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Officer's Certificate and an
Opinion of Counsel to the effect that the execution of such amendment,
supplement or waiver has been duly authorized, executed and delivered by the
Issuers and that, subject to applicable bankruptcy, insolvency, fraudulent
transfer, fraudulent conveyance, reorganization, moratorium and other laws now
or hereinafter in effect affecting creditors' rights or remedies generally and
to general principles of equity (including standards of materiality, good faith,
fair dealing and reasonableness), whether considered in a proceeding at law or
at equity, such amendment, supplement or waiver is a valid and binding agreement
of the Issuers, enforceable against the Issuers in accordance with its terms.
Section 904. Revocation and Effect of Consents. Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of that Note or any
Note that evidences all or any part of the same debt as the consenting Holder's
Note, even if notation of the consent is not made on any Note. Subject to the
following paragraph of this Section 904, any such Holder or subsequent Holder
may revoke the consent as to such Holder's Note by written notice to the Trustee
or the Issuers, received by the Trustee or the Issuers, as the case may be,
before the date on which the Trustee receives an Officer's Certificate
certifying that the Holders of the requisite principal amount of Notes have
consented (and not theretofore revoked such consent) to the amendment,
supplement or waiver. The Issuers may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to consent to
any amendment, supplement or waiver as set forth in Section 108.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder of Notes, unless it makes a change described in any of clauses
(i) through (viii) of the second paragraph of Section 902. In that case, the
amendment, supplement or waiver shall bind each Holder of a Note who has
consented to it and every subsequent Holder of such Note or any Note that
evidences all or any part of the same debt as the consenting Holder's Note.
Section 905. Conformity with TIA. Every amendment or supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the TIA as then in effect.
Section 906. Notation on or Exchange of Notes. If an amendment,
supplement or waiver changes the terms of a Note, the Trustee shall (if required
by the Issuers and in accordance with the specific direction of the Issuers)
request the Holder of the Note to deliver it to the Trustee. The Trustee shall
(if required by the Issuers and in accordance with the specific direction of the
Issuers) place an appropriate notation on the Note about the changed terms and
return it to the Holder. Alternatively, if the Issuers or the Trustee so
determines, the Issuers in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the
changed terms. Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
ARTICLE X
REDEMPTION OF NOTES
Section 1001. Right of Redemption.
(a) The Notes of any series will be redeemable, at the Issuers'
option, in whole or in part, at any time and from time to time on and after
December 1, 2010 and prior to maturity at the applicable redemption price set
forth below. Such redemption may be made upon notice mailed by first-class mail
to the registered address of each Holder of Notes to be redeemed, in accordance
with Section 1005. The Issuers may provide in such notice that payment of the
redemption price and the performance of the Issuers' obligations with respect to
such redemption may be performed by another Person. Any such redemption and
notice may, in the Issuers' discretion, be subject to the satisfaction of one or
more conditions precedent, including but not limited to the occurrence of a
Change of Control. The Notes will be so redeemable at the following redemption
prices (expressed as a percentage of principal amount), plus accrued and unpaid
interest, if any, to the relevant Redemption Date (subject to Section 307), if
redeemed during the 12-month period commencing on December 1 of the years set
forth below:
REDEMPTION PERIOD PRICE
----------------- -------
2010.................. 104.750%
2011.................. 102.375%
2012 and thereafter... 100.000%
(b) In addition, at any time and from time to time on or prior to
December 1, 2009, the Issuers at their option may redeem Notes in an aggregate
principal amount equal to up to 35% of the original aggregate principal amount
of the Notes (including the principal amount of any Additional Notes), with
funds in an equal aggregate amount (the "Redemption Amount") not exceeding the
aggregate proceeds of one or more Equity Offerings, at a redemption price (ex
pressed as a percentage of principal amount thereof) of 109.5% plus accrued and
unpaid interest, if any, to the Redemption Date (subject to Section 307);
provided, however, that if Notes are redeemed, an aggregate principal amount of
Notes equal to at least 65% of the original aggregate principal amount of Notes
(including the principal amount of any Additional Notes) must remain outstanding
after each such redemption of Notes.
The Company may make such redemption upon notice mailed by first-class
mail to each Holder's registered address in accordance with Section 1005 (but in
no event more than 90 days after the completion of the related Equity Offering).
The Issuers may provide in such notice that payment of the redemption price and
performance of the Issuers' obligations with respect to such redemption may be
performed by another Person. Any such notice may be given prior to the
completion of the related Equity Offering, and any such redemption or notice
may, at the Issuers' discretion, be subject to the satisfaction of one or more
conditions precedent, including but not limited to the completion of the related
Equity Offering.
(c) At any time prior to December 1, 2010, Notes of any series may
also be redeemed or purchased (by the Issuers or any other Person) in whole or
in part, at the Issuers' option, at a price (the "Redemption Price") equal to
100% of the principal amount thereof plus the Applicable Premium as of, and
accrued but unpaid interest, if any, to, the Redemption Date (subject to Section
307). Such redemption or purchase may be made upon notice mailed by first-class
mail to the registered address of each Holder of Notes to be redeemed or
purchased in accordance with Section 1005. The Issuers may provide in such
notice that payment of the Redemption Price and performance of the Issuers'
obligations with respect to such redemption or purchase may be performed by
another Person. Any such redemption, purchase or notice may, at the Issuers'
discretion, be subject to the satisfaction of one or more conditions precedent,
including but not limited to the occurrence of a Change of Control.
"Applicable Premium" means, at any Redemption Date, the greater of (i)
1.0% of the principal amount of such Note and (ii) the excess of (A) the present
value at such Redemption Date of (1) the redemption price of such Note on
December 1, 2010 (such redemption price being that described in Section 1001(a)
plus (2) all required remaining scheduled interest payments due on such Note
through such date, computed using a discount rate equal to the Treasury Rate
plus 50 basis points, over (B) the principal amount of such Note on such
Redemption Date; and, as calculated by the Company or on behalf of the Company
by such Person as the Company shall designate; provided that such calculation
shall not be a duty or obligation of the Trustee.
"Treasury Rate" means, with respect to a Redemption Date, the yield to
maturity at the time of computation of United States Treasury securities with a
constant maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H. 15(519) that has become publicly available at least two
Business Days prior to such Redemption Date (or, if such Statistical Release is
no longer published, any publicly available source of similar market data)) most
nearly equal to the period from such Redemption Date to December 1, 2010;
provided, however, that if the period from the Redemption Date to such date is
not equal to the constant maturity of a United States Treasury security for
which a weekly average yield is given, the Treasury Rate shall be obtained by
linear interpolation (calculated to the nearest one-twelfth of a year) from the
weekly average yields of United States Treasury securities for which such yields
are given, except that if the period from the Redemption Date to such date is
less than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used..
Section 1002. Applicability of Article. Redemption or purchase of
Notes as permitted by Section 1001 shall be made in accordance with this Article
X.
Section 1003. Election To Redeem; Notice to Trustee. In case of any
redemption at the election of the Issuers of less than all of the Notes, the
Issuers shall, at least two Business Days (but not more than 60 days) prior to
the date on which notice is required to be mailed or caused to be mailed to
Holders pursuant to Section 1005, notify the Trustee of such Redemption Date and
of the principal amount of Notes to be redeemed.
Section 1004. Selection by Trustee of Notes To Be Redeemed. In the
case of any partial redemption, selection of the Notes for redemption will be
made by the Trustee not more than 60 days prior to the Redemption Date on a pro
rota basis, by lot or by such other
method as the Trustee in its sole discretion shall deem to be fair and
appropriate, although no Note of $2,000 in original principal amount or less
will be redeemed in part.
The Trustee shall promptly notify the Issuers 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. On and after the
Redemption Date, interest will cease to accrue on Notes or portions thereof
called for redemption.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate, in
the case of any Note redeemed or to be redeemed only in part, to the portion of
the principal of such Note that has been or is to be redeemed.
Section 1005. Notice of Redemption. Notice of redemption or purchase
as provided in Section 1001 shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
the Trustee and to each Holder of Notes to be redeemed, at such Holder's address
appearing in the Note Register.
Any such notice shall state:
(1) the expected Redemption Date,
(2) the redemption price (or the formula by which the redemption price
will be determined),
(3) if less than all Outstanding Notes are to be redeemed, the
identification (and, in the case of partial redemption, the portion of the
respective principal amounts) of the Notes to be redeemed,
(4) that, on the Redemption Date, the redemption price will become due
and payable upon each such Note, and that, unless the Issuers default in
making such redemption payment or the Paying Agent is prohibited from
making such payment pursuant to the terms of this Indenture, interest
thereon shall cease to accrue from and after said date, and
(5) the place where such Notes are to be surrendered for payment of
the redemption price.
In addition, if such redemption, purchase or notice is subject to satisfaction
of one or more conditions precedent, as permitted by Section 1001, such notice
shall describe each such condition, and if applicable, shall state that, in the
Issuers' discretion, the Redemption Date may be delayed until such time as any
or all such conditions shall be satisfied, or such redemption or purchase may
not occur and such notice may be rescinded in the event that any or all such
conditions shall not have been satisfied by the Redemption Date, or by the
Redemption Date as so delayed.
The Issuers may provide in such notice that payment of the redemption
price and the performance of the Issuers' obligations with respect to such
redemption may be performed by another Person.
Notice of such redemption or purchase of Notes to be so redeemed or
purchased at the election of the Issuers shall be given by the Issuers or, at
the Issuers' request (made to the Trustee at least 40 days (or such shorter
period as shall be satisfactory to the Trustee) prior to the Redemption Date),
by the Trustee in the name and at the expense of the Issuers. Any such request
will set forth the information to be stated in such notice, as provided by this
Section 1005.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Note designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of any
other Note.
Section 1006. Deposit of Redemption Price. On or prior to 12:00 p.m.,
New York City time on any Redemption Date, the Issuers shall deposit with the
Trustee or with a Paying Agent (or, if the Issuers are acting as their own
Paying Agent, the Issuers shall segregate and hold in trust as provided in
Section 403) an amount of money sufficient to pay the redemption price of, and
any accrued and unpaid interest on, all the Notes or portions thereof which are
to be redeemed on that date.
Section 1007. Notes Payable on Redemption Date. Notice of redemption
having been given as provided in this Article X, the Notes so to be redeemed
shall, on the Redemption Date, become due and payable at the redemption price
herein specified and from and after such date (unless the Issuers shall default
in the payment of the redemption price or the Paying Agent is prohibited from
paying the redemption price pursuant to the terms of this Indenture) such Notes
shall cease to bear interest. Upon surrender of such Notes for redemption in
accordance with such notice, such Notes shall be paid by the Issuers at the
redemption price. Installments of interest whose Interest Payment Date is on or
prior to the Redemption Date shall be payable to the Holders of such Notes
registered as such on the relevant Regular Record Dates according to their terms
and the provisions of Section 307.
On and after any Redemption Date, if money sufficient to pay the
redemption price of and any accrued and unpaid interest on Notes called for
redemption shall have been made available in accordance with Section 1006, the
Notes (or the portions thereof) called for redemption will cease to accrue
interest and the only right of the Holders of such Notes (or portions thereof)
will be to receive payment of the redemption price of and, subject to the last
sentence of the preceding paragraph, any accrued and unpaid interest on such
Notes (or portions thereof) to the Redemption Date. If any Note (or portion
thereof) called for redemption shall not be so paid upon surrender thereof for
redemption, the principal (and premium, if any) shall, until paid, bear interest
from the Redemption Date at the rate borne by the Note (or portion thereof).
Section 1008. Notes Redeemed in Part. Any Note that is to be redeemed
only in part shall be surrendered at the Place of Payment (with, if the Issuers
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Issuers
and the Trustee duly executed by, the Holder thereof or its attorney duly
authorized in writing) and the Issuers shall execute and the Trustee shall
authenticate and deliver to the Holder of such Note without service charge, a
new Note or Notes, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Note so surrendered.
ARTICLE XI
SATISFACTION AND DISCHARGE
Section 1101. Satisfaction and Discharge of Indenture. This Indenture
shall be discharged and shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Notes herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Issuers, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(i) either
(a) all Notes theretofore authenticated and delivered (other than
(i) Notes that have been destroyed, lost or stolen and that have been
replaced or paid as provided in Section 306, and (ii) Notes for whose
payment money has theretofore been deposited in trust or segregated
and held in trust by the Issuers and thereafter repaid to the Issuers
or discharged from such trust, as provided in Section 403) have been
delivered to the Trustee cancelled or for cancellation; or
(b) all such Notes not theretofore delivered to the Trustee
cancelled or for cancellation
(1) have become due and payable, or
(2) will become due and payable at their Stated Maturity
within one year, or
(3) have been or are to be called for redemption within one
year under arrangements reasonably satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Issuers,
the Issuers have irrevocably deposited or caused to be deposited with the
Trustee money or U.S. Government Obligations sufficient (without
reinvestment) to pay and discharge the entire Indebtedness on such Notes
not theretofore delivered to the Trustee cancelled or for cancellation, for
principal (and premium, if any) and interest to the date of such deposit in
the case of the Notes that have become due and payable, or to the Stated
Maturity or Redemption Date, as the case may be (provided that if such
redemption shall be pursuant to Section 1001(c), (x) the amount of money or
U.S. Government Obligations or a combination thereof that the Issuers must
irrevocably deposit or cause to be deposited shall be determined using an
assumed Applicable Premium calculated as of the date of
such deposit, and (y) the Issuers must irrevocably deposit or cause to be
deposited additional money in trust on the Redemption Date, as required by
Section 1006, as necessary to pay the Applicable Premium as determined on
such date);
(ii) the Issuers have paid or caused to be paid all other sums then
payable hereunder by the Issuers; and
(iii) the Issuers have delivered to the Trustee an Officer's
Certificate of the Issuers and an Opinion of Counsel, each to the effect
that all conditions precedent provided for in this Section 1101 relating to
the satisfaction and discharge of this Indenture have been complied with;
provided that any such counsel may rely on any Officer's Certificate as to
matters of fact (including as to compliance with the foregoing clauses (i),
(ii) and (iii)).
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuers to the Trustee under Section 707 and, if money shall
have been deposited with the Trustee pursuant to Section 1101(ii), the
obligations of the Trustee under Section 1102 shall survive.
Section 1102. Application of Trust Money. Subject to the provisions of
the last paragraph of Section 403, all money and/or U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee pursuant to Section
1101 shall be held in trust and applied by it, in accordance with the provisions
of the Notes and this Indenture, to the payment, either directly or through any
Paying Agent as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and interest on the Notes; but such money
need not be segregated from other funds except to the extent required by law.
ARTICLE XII
DEFEASANCE OR COVENANT DEFEASANCE
Section 1201. The Issuers' Option To Effect Defeasance or Covenant
Defeasance. The Issuers may, concurrently (and not separately) at its option, at
any time, elect to have terminated the obligations of the Issuers with respect
to Outstanding Notes and to have terminated all of the obligations of the
Subsidiary Guarantors, if any, with respect to the Subsidiary Guarantees, in
each case, as set forth in this Article XII, and elect to have either Section
1202 or Section 1203 be applied to all of the Outstanding Notes (the "Defeased
Notes"), upon compliance with the conditions set forth below in Section 1204.
Either Section 1202 or Section 1203 may be applied to the Defeased Notes to any
Redemption Date or the Stated Maturity of the Notes.
Section 1202. Defeasance and Discharge. Upon the Issuers' exercise
under Section 1201 of the option applicable to this Section 1202, the Issuers
shall be deemed to have been released and discharged from its obligations with
respect to the Defeased Notes on the date the relevant conditions set forth in
Section 1204 below are satisfied (hereinafter, "Defeasance"). For this purpose,
such Defeasance means that the Issuers shall be deemed to have paid and
discharged the entire Indebtedness represented by the Defeased Notes, which
shall thereafter be
deemed to be "Outstanding" only for the purposes of Section 1205 and the other
Sections of this Indenture referred to in clauses (a) and (b) below, and the
Issuers and each of the Subsidiary Guarantors, if any, shall be deemed to have
satisfied all other obligations under such Notes and this Indenture insofar as
such Notes are concerned (and the Trustee, at the expense of the Issuers, shall
execute proper instruments acknowledging the same), except for the following,
which shall survive until otherwise terminated or discharged hereunder: (a) the
rights of Holders of Defeased Notes to receive, solely from the trust fund
described in Section 1204 and as more fully set forth in such Section, payments
in respect of the principal of and premium, if any, and interest on such Notes
when such payments are due, (b) the Issuers' obligations with respect to such
Defeased Notes under Sections 304, 305, 306, 402 and 403, (c) the rights,
powers, trusts, duties and immunities of the Trustee hereunder, including the
Trustee's rights under Section 707, and (d) this Article XII. If the Issuers
exercise their option under this Section 1202, payment of the Notes may not be
accelerated because of an Event of Default with respect thereto. Subject to
compliance with this Article XII, the Issuers may, at their option and at any
time, exercise their option under this Section 1202 notwithstanding the prior
exercise of its option under Section 1203 with respect to the Notes.
Section 1203. Covenant Defeasance. Upon the Issuers' exercise under
Section 1201 of the option applicable to this Section 1203, (a) the Issuers and
the Subsidiary Guarantors, if any, shall be released from their respective
obligations under any covenant or provision contained in Section 405 and
Sections 407 through 415 and the provisions of clauses (iii), (iv) and (v) of
Section 501(a) shall not apply, and (b) the occurrence of any event specified in
clause (iv), (v) (with respect to Section 405 and Sections 407 through 415,
inclusive), (vi), (vii), (viii) (with respect to Subsidiaries), (ix) (with
respect to Subsidiaries), (x) or (xi) of Section 601 shall be deemed not to be
or result in an Event of Default, in each case with respect to the Defeased
Notes on and after the date the conditions set forth below are satisfied
(hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be deemed
not to be "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 or provisions, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such Covenant
Defeasance means that, with respect to the Outstanding Notes, the Issuers and
the Subsidiary Guarantors, if any, may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant or provision, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or provision or by reason of any
reference in any such covenant or provision 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 601, but, except as specified above, the
remainder of this Indenture and such Outstanding Notes shall be unaffected
thereby.
Section 1204. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of either Section 1202 or
Section 1203 to the Outstanding Notes:
(1) The Issuers shall have irrevocably deposited or caused to be
deposited with the Trustee, in trust, money or U.S. Government Obligations,
or a combination thereof in amounts as will be sufficient (without
reinvestment), to pay and discharge the
principal of, and premium, if any, and interest on the Defeased Notes to
the Stated Maturity or relevant Redemption Date in accordance with the
terms of this Indenture and the Notes (provided that if such redemption
shall be pursuant to Section 1001(c), (x) the amount of money or U.S.
Government Obligations or a combination thereof that the Issuers must
irrevocably deposit or cause to be deposited shall be determined using an
assumed Applicable Premium calculated as of the date of such deposit, and
(y) the Issuers must irrevocably deposit or cause to be deposited
additional money in trust on the Redemption Date, as required by Section
1006, as necessary to pay the Applicable Premium as determined on such
date);
(2) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit;
(3) Such deposit shall not result in a breach or violation of, or
constitute a Default or Event of Default under, this Indenture or any
other material agreement or instrument to which the Issuers are a party or
by which it is bound;
(4) In the case of an election under Section 1202, the Issuers shall
have delivered to the Trustee an Opinion of Counsel from Debevoise &
Xxxxxxxx LLP or other counsel in the United States to the effect that (x)
the Issuers have received from, or there has been published by, the
Internal Revenue Service a ruling or (y) since the Issue Date, there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm to the
effect that, the Holders of the Outstanding Notes will not recognize
income, gain or loss for Federal income tax purposes as a result of such
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 Defeasance had not occurred; provided that such Opinion of Counsel
need not be delivered if all Notes theretofore authenticated and delivered
(other than (i) Notes that have been destroyed, lost or stolen and that
have been replaced or paid as provided in Section 306, and (ii) Notes for
whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Issuers and thereafter repaid to the Issuers or
discharged from such trust, as provided in Section 403) not theretofore
delivered to the Trustee for cancellation have become due and payable, will
become due and payable at their Stated Maturity within one year, or are to
be called for redemption within one year under arrangements reasonably
satisfactory to the Trustee in the name, and at the expense, of the
Issuers;
(5) In the case of an election under Section 1203, the Issuers shall
have delivered to the Trustee an Opinion of Counsel from Debevoise &
Xxxxxxxx LLP or other counsel in the United States to the effect 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; and
(6) The Issuers shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each to the effect that all
conditions precedent provided for in this
Section 1204 relating to either the Defeasance under Section 1202 or the
Covenant Defeasance under Section 1203, as the case may be, have been
complied with. In rendering such Opinion of Counsel, counsel may rely on an
Officer's Certificate as to compliance with the foregoing clauses (1), (2)
and (3) of this Section 1204 or as to any matters of fact.
Section 1205. Deposited Money and U.S. Government Obligations To Be
Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of the
last paragraph of Section 403, all money and U.S.Government Obligations
(including the proceeds thereof) deposited with the Trustee (or such other
Person that would qualify to act as successor trustee under Article VII,
collectively and solely for purposes of this Section 1205, Section 1412 and
Section 1512, the "Trustee") pursuant to Section 1204 in respect of the Defeased
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 as the Trustee may determine, to the Holders of such
Notes of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Issuers shall pay and indemnify the Trustee and its agents and
hold them harmless against any tax, fee or other charge imposed on or assessed
against the U.S. Government Obligations deposited pursuant to Section 1204, or
the principal, premium, if any, and interest received in respect thereof, other
than any such tax, fee or other charge that by law is for the account of the
Holders of the Defeased Notes.
Anything in this Article XII to the contrary notwithstanding, the
Trustee shall deliver to the Issuers from time to time, upon an Issuers Request,
any money or U.S. Government Obligations held by it as provided in Section 1204
that, in the opinion of a nationally recognized accounting or investment banking
firm expressed in a written certification thereof to the Trustee, are in excess
of the amount thereof that would then be required to be deposited to effect an
equivalent Defeasance or Covenant Defeasance. Subject to Article VII, the
Trustee shall not incur any liability to any Person by relying on such opinion.
Section 1206. Reinstatement. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with Section
1202 or 1203, 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 obligations of the Issuers and each of the Subsidiary
Guarantors, if any, under this Indenture, the Notes and the Subsidiary
Guarantees shall be revived and reinstated as though no deposit had occurred
pursuant to Section 1202 or 1203, as the case may be, until such time as the
Trustee or Paying Agent is permitted to apply all such money and U.S. Government
Obligations in accordance with Section 1202 or 1203, as the case may be;
provided, however, that if the Issuers or any Subsidiary Guarantor make any
payment of principal, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Issuers or Subsidiary Guarantors, if any,
as the case may be, shall be subrogated to the rights of the Holders of such
Notes to receive such payment from the money and U.S. Government Obligations
held by the Trustee or Paying Agent.
Section 1207. Repayment to the Issuers. The Trustee shall pay to the
Issuers upon an Issuers Request any money held by it for the payment of
principal or interest that remains unclaimed for two years. After payment to the
Issuers, Holders entitled to money must look to the Issuers for payment as
general creditors unless an applicable abandoned property law designates another
Person and all liability of the Trustee or Paying Agent with respect to such
money shall thereupon cease.
ARTICLE XIII
SUBSIDIARY GUARANTEES
Section 1301. Guarantees Generally.
(a) Guarantee of Each Subsidiary Guarantor, if any. Each Subsidiary
Guarantor, if any, as primary obligor and not merely as surety, will jointly
and severally, irrevocably and fully and unconditionally Guarantee, on an
unsecured senior basis, the punctual payment when due, whether at Stated
Maturity, by acceleration or otherwise, of all monetary obligations of the
Issuers under this Indenture and the Notes, whether for principal of or interest
on the Notes, expenses, indemnification or otherwise (all such obligations
guaranteed by such Subsidiary Guarantors being herein called the "Subsidiary
Guaranteed Obligations").
The obligations of each Subsidiary Guarantor, if any, will be limited
to the maximum amount as will, after giving effect to all other contingent and
fixed liabilities of such Subsidiary Guarantor, (including but not limited to
any Guarantee by it of any Bank Indebtedness) and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor, if any, in respect of the obligations of such other Subsidiary
Guarantor under its Subsidiary Guarantee or pursuant to its contribution
obligations under this Indenture, result in the obligations of such Subsidiary
Guarantor under the Subsidiary Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under applicable law, or being void or
unenforceable under any law relating to insolvency of debtors.
(b) Further Agreements of Each Subsidiary Guarantor, if any.
(i) Each Subsidiary Guarantor, if any, hereby agrees that (to the
fullest extent permitted by law) its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of
this Indenture, the Notes or the obligations of the Issuers or any other
Subsidiary Guarantor, if any, to the Holders or the Trustee hereunder or
thereunder, the absence of any action to enforce the same, any waiver or consent
by any Holder with respect to any provisions hereof or thereof, any release of
any other Subsidiary Guarantor, if any, the recovery of any judgment against the
Issuers, any action to enforce the same, whether or not a notation concerning
its Subsidiary Guarantee is made on any particular Note, or any other
circumstance that might otherwise constitute a legal or equitable discharge or
defense of a Subsidiary Guarantor.
(ii) Each Subsidiary Guarantor, if any, hereby waives (to the fullest
extent permitted by law) the benefit of diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of an Issuer, any right to require a proceeding first
against such Issuer, protest, notice and all demands whatsoever and covenants
that (except as otherwise provided in Section 1303) its Subsidiary Guarantee
will not be discharged except by complete performance of the obligations
contained in the Notes, this Indenture and this Subsidiary Guarantee. Such
Subsidiary Guarantee is a guarantee of payment and not of collection. Each
Subsidiary Guarantor, if any, further agrees (to the fullest extent permitted by
law) that, as between it, on the one hand, and the Holders of Notes and the
Trustee, on the other hand, subject to this Article XIII, (1) the maturity of
the obligations guaranteed by its Subsidiary Guarantee may be accelerated as and
to the extent provided in Article VI for the purposes of such Subsidiary
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed by such Subsidiary
Guarantee, and (2) in the event of any acceleration of such obligations as
provided in Article VI, such obligations (whether or not due and payable) shall
forthwith become due and payable by such Subsidiary Guarantor in accordance with
the terms of this Section 1301 for the purpose of such Subsidiary Guarantee.
Neither the Trustee nor any other Person shall have any obligation to enforce or
exhaust any rights or remedies or to take any other steps under any security for
the Subsidiary Guaranteed Obligations or against the Issuers or any other Person
or any property of the Issuers or any other Person before the Trustee is
entitled to demand payment and performance by any or all Subsidiary Guarantors
of their obligations under their respective Subsidiary Guarantees or under this
Indenture.
(iii) Until terminated in accordance with Section 1303. each
Subsidiary Guarantee, if any, shall remain in full force and effect and continue
to be effective should any petition be filed by or against the Issuers for
liquidation or reorganization, should the Issuers become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Issuers' assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Notes are,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee on such Notes, whether as a "voidable
preference," "fraudulent transfer" or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Notes shall, to the
fullest extent permitted by law, be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or returned.
(c) Each Subsidiary Guarantor, if any, that makes a payment or
distribution under its Subsidiary Guarantee shall have the right to seek
contribution from the Issuers or any non-paying Subsidiary Guarantor that has
also Guaranteed the relevant Subsidiary Guaranteed Obligations in respect of
which such payment or distribution is made, so long as the exercise of such
right does not impair the rights of the Holders under the Subsidiary Guarantees.
(d) Each Subsidiary Guarantor, if any, acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that its Subsidiary Guarantee, and the waiver
set forth in Section 1305, are knowingly made in contemplation of such
benefits.
(e) Each Subsidiary Guarantor, if any, pursuant to its Subsidiary
Guarantee, also hereby agrees to pay any and all reasonable out-of-pocket
expenses (including reasonable
counsel fees and expenses) incurred by the Trustee or the Holders in enforcing
any rights under its Subsidiary Guarantee.
Section 1302. Continuing Guarantees.
(a) Each Subsidiary Guarantee, if any, shall be a continuing Guarantee
and shall (i) subject to Section 1303, remain in full force and effect until
payment in full of the principal amount of all Outstanding Notes (whether by
payment at maturity, purchase, redemption, defeasance, retirement or other
acquisition) and all other Subsidiary Guaranteed Obligations of the Subsidiary
Guarantor, if any, then due and owing, (ii) be binding upon such Subsidiary
Guarantor and (iii) inure to the benefit of and be enforceable by the Trustee,
the Holders and their permitted successors, transferees and assigns.
(b) The obligations of each Subsidiary Guarantor, if any, hereunder
shall continue to be effective or shall be reinstated, as the case may be, if at
any time any payment which would otherwise have reduced or terminated the
obligations of any Subsidiary Guarantor, if any, hereunder and under its
Subsidiary Guarantee (whether such payment shall have been made by or on behalf
of the Issuers or by or on behalf of a Subsidiary Guarantor) is rescinded or
reclaimed from any of the Holders upon the insolvency, bankruptcy, liquidation
or reorganization of the Issuers or any Subsidiary Guarantor or otherwise, all
as though such payment had not been made.
Section 1303. Release of Subsidiary Guarantees. Notwithstanding the
provisions of Section 1302, Subsidiary Guarantees, if any, will be subject to
termination and discharge under the circumstances described in this Section
1303. Any Subsidiary Guarantor will automatically and unconditionally be
released from all obligations under its Subsidiary Guarantee, and such
Subsidiary Guarantee shall thereupon terminate and be discharged and of no
further force or effect, (j) concurrently with any direct or indirect sale or
disposition (by merger or otherwise) of any Subsidiary Guarantor or any interest
therein in accordance with the terms of this Indenture (including Section 411
and Section 501) by the Issuers or a Restricted Subsidiary, following which such
Subsidiary Guarantor is no longer a Restricted Subsidiary of the Issuers, (ii)
at any time that such Subsidiary Guarantor is released from all of its
obligations under all of its Guarantees of payment by the Issuers of any
Indebtedness of the Issuers under the Senior Credit Facilities (it being
understood that a release subject to contingent reinstatement is still a
release, and that if any such Guarantee is so reinstated, such Subsidiary
Guarantee shall also be reinstated to the extent that such Subsidiary Guarantor
would then be required to provide a Subsidiary Guarantee pursuant to Section
414, (iii) upon the merger or consolidation of any Subsidiary Guarantor with and
into the either Issuer another Subsidiary Guarantor that is the surviving Person
in such merger or consolidation, or upon the liquidation of such Subsidiary
Guarantor following the transfer of all of its assets to either of the Issuers
or another Subsidiary Guarantor, (iv) concurrently with any Subsidiary Guarantor
becoming an Unrestricted Subsidiary, (v) upon legal or covenant defeasance of
the Issuers' obligations, or satisfaction and discharge of this Indenture, or
(vi) subject to Section 1302(b), upon payment in full of the aggregate principal
amount of all Notes then Outstanding and all other Subsidiary Guaranteed
Obligations then due and owing. In addition, the Issuers will have the right,
upon 30 days' notice to the Trustee, to cause any Subsidiary Guarantor that has
not guaranteed payment by the Issuers of any Indebtedness of the Issuers under
the Senior Credit Facilities to be
unconditionally released from all obligations under its Subsidiary Guarantee,
and such Subsidiary Guarantee shall thereupon terminate and be discharged and of
no further force or effect.
Upon any such occurrence specified in this Section 1303, the Trustee
shall execute any documents reasonably required in order to evidence such
release, discharge and termination in respect of the applicable Subsidiary
Guarantee.
Section 1304. [Reserved].
Section 1305. Waiver of Subrogation. Each Subsidiary Guarantor, if
any, hereby irrevocably waives any claim or other rights that it may now or
hereafter acquire against the Issuers that arise from the existence, payment,
performance or enforcement of the Issuers' obligations under the Notes and this
Indenture or such Subsidiary Guarantor's obligations under its Subsidiary
Guarantee and this Indenture, including any right of subrogation, reimbursement,
exoneration, indemnification, and any right to participate in any claim or
remedy of any Holder of Notes against the Issuers, whether or not such claim,
remedy or right arises in equity, or under contract, statute or common law,
until this Indenture is discharged and all of the Notes are discharged and paid
in full. If any amount shall be paid to any Subsidiary Guarantor in violation of
the preceding sentence and the Notes shall not have been paid in full, such
amount shall be deemed to have been paid to such Subsidiary Guarantor for the
benefit of, and held in trust for the benefit of, the Holders of the Notes, and
shall forthwith be paid to the Trustee for the benefit of such Holders to be
credited and applied upon the Notes, whether matured or unmatured, in accordance
with the terms of this Indenture.
Section 1306. Notation Not Required. Neither of the Issuers nor any
Subsidiary Guarantor, if any, shall be required to make a notation on the Notes
to reflect any Subsidiary Guarantee or any release, termination or discharge
thereof.
Section 1307. Successors and Assigns of Subsidiary Guarantors. All
covenants and agreements in this Indenture by each Subsidiary Guarantor, if any,
shall bind its respective successors and assigns, whether so expressed or not.
Section 1308. Execution and Delivery of Subsidiary Guarantees. The
Issuers shall cause each Restricted Subsidiary that is required to become a
Subsidiary Guarantor pursuant to Section 414, and each Subsidiary of the Issuers
that the Issuers causes to become a Subsidiary Guarantor pursuant to Section
414, to promptly execute and deliver to the Trustee a Supplemental Indenture
substantially in the form set forth in Exhibit E to this Indenture, or otherwise
in form and substance reasonably satisfactory to the Trustee, evidencing its
Subsidiary Guarantee on substantially the terms set forth in this Article XIII.
Concurrently therewith, the Issuers shall deliver to the Trustee an Opinion of
Counsel in form and substance reasonably satisfactory to the Trustee to the
effect that such Supplemental Indenture has been duly authorized, executed and
delivered by such Restricted Subsidiary and that, subject to applicable
bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium and other laws now or hereafter in effect affecting
creditors' rights or remedies generally and to general principles of equity
(including standards of materiality, good faith, fair dealing and
reasonableness), whether considered in a proceeding at law or at equity, such
Supplemental Indenture is a valid and
binding agreement of such Restricted Subsidiary, enforceable against such
Restricted Subsidiary in accordance with its terms.
Section 1309. Notices. Notice to any Subsidiary Guarantor, if any,
shall be sufficient if addressed to such Subsidiary Guarantor care of the
Issuers at the address, place and manner provided in Section 109.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
RENTAL SERVICE CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
RSC HOLDINGS III, LLC
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
XXXXX FARGO BANK
NATIONAL ASSOCIATION, as Trustee
By: /s/ Xxxxx XxXxxxxx
------------------------------------
Name: Xxxxx XxXxxxxx
Title: Vice President
(Signature Page to Indenture in respect of Senior Notes)
