Exhibit 4.3
XXXXX'X HOLDINGS, INC.
(as Issuer)
Xxxxx'x Corporation
(as Guarantor)
10% Senior Notes due 2012
-------------
INDENTURE
Dated as of October 5, 2004
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U.S. Bank National Association
(as Trustee)
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE...........................1
SECTION 1.1 DEFINITIONS........................................1
SECTION 1.2 OTHER DEFINITIONS.................................23
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.23
SECTION 1.4 RULES OF CONSTRUCTION.............................24
ARTICLE II THE NOTES..........................................................24
SECTION 2.1 FORM AND DATING...................................24
SECTION 2.2 EXECUTION AND AUTHENTICATION......................25
SECTION 2.3 REGISTRAR, PAYING AGENT AND DEPOSITARY............25
SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST...............26
SECTION 2.5 HOLDER LISTS......................................26
SECTION 2.6 TRANSFER AND EXCHANGE.............................26
SECTION 2.7 REPLACEMENT NOTES.................................38
SECTION 2.8 OUTSTANDING NOTES.................................38
SECTION 2.9 TREASURY NOTES....................................39
SECTION 2.10 TEMPORARY NOTES...................................39
SECTION 2.11 CANCELLATION......................................39
SECTION 2.12 DEFAULTED INTEREST................................39
SECTION 2.13 CUSIP NUMBERS.....................................40
SECTION 2.14 ISSUANCE OF ADDITIONAL NOTES......................40
ARTICLE III REDEMPTION........................................................40
SECTION 3.1 NOTICES TO TRUSTEE................................40
SECTION 3.2 SELECTION OF NOTES TO BE REDEEMED.................41
SECTION 3.3 NOTICE OF REDEMPTION..............................41
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION....................42
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE.......................42
SECTION 3.6 NOTES REDEEMED IN PART............................42
SECTION 3.7 OPTIONAL REDEMPTION...............................43
SECTION 3.8 NO MANDATORY REDEMPTION...........................43
ARTICLE IV COVENANTS..........................................................43
SECTION 4.1 PAYMENT OF NOTES..................................43
SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY...................44
SECTION 4.3 COMMISSION REPORTS AND REPORTS TO HOLDERS.........44
SECTION 4.4 COMPLIANCE CERTIFICATE............................45
SECTION 4.5 TAXES.............................................45
SECTION 4.6 STAY, EXTENSION AND USURY LAWS....................45
SECTION 4.7 LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS
AND DISQUALIFIED CAPITAL STOCK....................46
SECTION 4.8 LIMITATION ON LIENS...............................47
SECTION 4.9 LIMITATION ON RESTRICTED PAYMENTS.................47
SECTION 4.10 LIMITATION ON DIVIDENDS AND OTHER PAYMENT
RESTRICTIONS AFFECTING SUBSIDIARIES...............49
SECTION 4.11 LIMITATION ON LINES OF BUSINESS...................50
SECTION 4.12 LIMITATION ON TRANSACTIONS WITH AFFILIATES........50
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SECTION 4.13 LIMITATION ON SALE OF ASSETS AND SUBSIDIARY STOCK.51
SECTION 4.14 REPURCHASE OF NOTES AT THE OPTION OF THE HOLDER
UPON A CHANGE OF CONTROL..........................54
SECTION 4.15 SUBSIDIARY GUARANTORS.............................55
SECTION 4.16 LIMITATION ON STATUS AS INVESTMENT COMPANY........55
SECTION 4.17 LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.....55
SECTION 4.18 MAINTENANCE OF PROPERTIES.........................55
SECTION 4.19 CORPORATE EXISTENCE...............................56
ARTICLE V SUCCESSORS..........................................................56
SECTION 5.1 MERGER, CONSOLIDATION OR SALE OF ASSETS...........56
SECTION 5.2 SUCCESSOR CORPORATION SUBSTITUTED.................57
ARTICLE VI DEFAULTS AND REMEDIES..............................................57
SECTION 6.1 EVENTS OF DEFAULT.................................57
SECTION 6.2 ACCELERATION......................................58
SECTION 6.3 OTHER REMEDIES....................................59
SECTION 6.4 WAIVER OF PAST DEFAULTS...........................59
SECTION 6.5 CONTROL BY MAJORITY...............................60
SECTION 6.6 LIMITATION ON SUITS...............................60
SECTION 6.7 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.....60
SECTION 6.8 COLLECTION SUIT BY TRUSTEE........................61
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM..................61
SECTION 6.10 PRIORITIES........................................61
SECTION 6.11 UNDERTAKING FOR COSTS.............................62
ARTICLE VII TRUSTEE...........................................................62
SECTION 7.1 DUTIES OF TRUSTEE.................................62
SECTION 7.2 RIGHTS OF TRUSTEE.................................63
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE......................64
SECTION 7.4 TRUSTEE'S DISCLAIMER..............................64
SECTION 7.5 NOTICE OF DEFAULTS................................64
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES........65
SECTION 7.7 COMPENSATION AND INDEMNITY........................65
SECTION 7.8 REPLACEMENT OF TRUSTEE............................66
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC..................67
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.....................67
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.67
ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE AND SATISFACTION AND
DISCHARGE.....................................................................67
SECTION 8.1 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT
DEFEASANCE........................................67
SECTION 8.2 LEGAL DEFEASANCE..................................67
SECTION 8.3 COVENANT DEFEASANCE...............................68
SECTION 8.4 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE........68
SECTION 8.5 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.... 70
SECTION 8.6 REPAYMENT TO COMPANY..............................70
SECTION 8.7 REINSTATEMENT.....................................70
SECTION 8.8 SATISFACTION AND DISCHARGE........................71
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ARTICLE IX AMENDMENT, SUPPLEMENT AND WAIVER...................................72
SECTION 9.1 WITHOUT CONSENT OF HOLDERS OF NOTES...............72
SECTION 9.2 WITH CONSENT OF HOLDERS OF NOTES..................73
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT...............74
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS.................74
SECTION 9.5 NOTATION ON OR EXCHANGE OF NOTES..................75
SECTION 9.6 TRUSTEE TO SIGN AMENDMENTS, ETC...................75
ARTICLE X PARENT GUARANTEE....................................................75
SECTION 10.1 GUARANTEES........................................75
SECTION 10.2 EXECUTION AND DELIVERY OF GUARANTEES..............76
SECTION 10.3 PARENT MAY CONSOLIDATE, ETC., ON CERTAIN TERMS....77
SECTION 10.4 RELEASE OF PARENT.................................77
SECTION 10.5 LIMITATION OF PARENT'S LIABILITY; CERTAIN
BANKRUPTCY EVENTS.................................78
SECTION 10.6 APPLICATION OF CERTAIN TERMS AND PROVISIONS TO
PARENT............................................78
ARTICLE XI MISCELLANEOUS......................................................79
SECTION 11.1 TRUST INDENTURE ACT CONTROLS......................79
SECTION 11.2 NOTICES...........................................79
SECTION 11.3 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER
HOLDERS OF NOTES..................................80
SECTION 11.4 CERTIFICATE AND OPINION AS TO CONDITIONS
PREC................EDENT.........................80
SECTION 11.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.....80
SECTION 11.6 RULES BY TRUSTEE AND AGENTS.......................81
SECTION 11.7 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS........................81
SECTION 11.8 GOVERNING LAW.....................................81
SECTION 11.9 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.....81
SECTION 11.10 SUCCESSORS........................................81
SECTION 11.11 SEVERABILITY......................................81
SECTION 11.12 COUNTERPART ORIGINALS.............................82
SECTION 11.13 TABLE OF CONTENTS, HEADINGS, ETC..................82
EXHIBIT A
FORM OF NOTE.........................................................A-1
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER......................................B-1
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE......................................C-1
EXHIBIT D
FORM OF CERTIFICATE FROM ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR....................................D-1
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CROSS-REFERENCE TABLE*
TIA Section Indenture Section
----------- -----------------
310(a)(1)...................................................................7.10
(a)(2).................................................................7.10
(a)(3).................................................................N.A.
(a)(4).................................................................N.A.
(a)(5)............................................................7.8; 7.10
(b).........................................................7.8; 7.10; 11.2
(c)....................................................................N.A.
311(a)......................................................................7.11
(b)....................................................................7.11
(c)....................................................................N.A.
312(a).......................................................................2.5
(b)(1).................................................................11.3
(b)(2).................................................................11.3
313(a).......................................................................7.6
(b)(a).................................................................N.A.
(b)(2)..................................................................7.6
(c)...............................................................7.6; 11.2
(d).....................................................................7.6
314(a)............................................................4.3; 4.4; 11.2
(b)....................................................................N.A.
(c)(1).................................................................11.4
(c)(2).................................................................11.4
(c)(3).................................................................N.A.
(d)....................................................................N.A.
(e)....................................................................11.5
(f)....................................................................N.A.
315(a)....................................................................7.1(b)
(b)...............................................................7.5; 11.2
(c)..................................................................7.1(a)
(d)..................................................................7.1(c)
(e)....................................................................6.11
316(a)(last sentence)........................................................2.9
(a)(1)(A)...............................................................6.5
(a)(1)(B)...............................................................6.4
(a)(2).................................................................N.A.
(b).....................................................................6.7
(c).....................................................................6.4
317(a)(1)....................................................................6.8
(a)(2)..................................................................6.9
(b).....................................................................2.4
318(a)......................................................................11.1
(c)....................................................................11.1
--------------------------------
N.A. means not applicable
* This Cross-Reference table shall not, for any purpose, be deemed to be part of
this Indenture.
vi
INDENTURE, dated as of October 5, 2004, by and among Xxxxx'x
Holdings, Inc., as issuer (the "Company"), Xxxxx'x Corporation, as guarantor
("Parent"), and U.S. Bank National Association, as trustee (the "Trustee").
Each party agrees as follows for the benefit of each other and
for the equal and ratable benefit of the Holders of the 10% Senior Notes due
2012 (the "Series A Notes") and the 10% Series B Senior Notes due 2012 (the
"Series B Notes" and, together with the Series A Notes, the "Notes"):
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.1 DEFINITIONS
"144A Global Note" means one or more Global Notes bearing the
Private Placement Legend that shall be issued in an aggregate amount of
denominations equal in total to the outstanding principal amount of the Notes
sold in reliance on Rule 144A.
"Accrued Bankruptcy Interest" means, with respect to any
Indebtedness, all interest accruing thereon after the filing of a petition by or
against the Company or any of its Subsidiaries or any parent under any
Bankruptcy Law, in accordance with and at the rate (including any rate
applicable upon any default or event of default, to the extent lawful) specified
in the documents evidencing or governing such Indebtedness, whether or not the
claim for such interest is allowed as a claim after such filing in any
proceeding under such Bankruptcy Law.
"Acquired Indebtedness" means Indebtedness (including
Disqualified Capital Stock) of any Person existing at the time such Person
becomes a Subsidiary of the Company, including by designation, or is merged or
consolidated into or with the Company or one of its Subsidiaries.
"Acquisition" means the purchase or other acquisition of any
Person or all or substantially all the assets of any Person by any other Person,
whether by purchase, merger, consolidation, or other transfer, and whether or
not for consideration.
"Additional Notes" means additional Notes which may be issued
after the Issue Date pursuant to this Indenture (other than pursuant to an
Exchange Offer or otherwise in exchange for or in replacement of outstanding
Notes).
"Affiliate" means, with respect to any Person, any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such Person. For purposes of this definition, the term
"control" means the power to direct the management and policies of a Person,
directly or through one or more intermediaries, whether through the ownership of
voting securities, by contract, or otherwise; provided, that with respect to
ownership interest in the Company and its Subsidiaries, a Beneficial Owner of
10% or more of the total voting power normally entitled to vote in the election
of directors, managers or trustees, as applicable, shall for such purposes be
deemed to possess control. Notwithstanding the foregoing, Affiliate shall not
include Wholly Owned Subsidiaries.
"Agent" means any Registrar, Paying Agent or co-registrar.
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"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Clearstream that apply to such
transfer or exchange at the relevant time.
"Attributable Indebtedness" in respect of a sale and leaseback
transaction means, at the time of determination, the present value of the
obligation of the lessee for net rental payments during the remaining term of
the lease included in such sale and leaseback transaction including any period
for which such lease has been extended or may, at the option of the lessor, be
extended. Such present value shall be calculated using a discount rate equal to
the rate of interest implicit in such transaction, determined in accordance with
GAAP.
"Average Life" means, as of the date of determination, with
respect to any security or instrument, the quotient obtained by dividing (1) the
sum of the products (a) of the number of years from the date of determination to
the date or dates of each successive scheduled principal (or redemption) payment
of such security or instrument and (b) the amount of each such respective
principal (or redemption) payment by (2) the sum of all such principal (or
redemption) payments.
"Bankruptcy Code" means the United States Bankruptcy Code,
codified at 11 U.S.C. ss. 101-1330, as amended.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar
Federal, state or foreign law for the relief of debtors.
"Beneficial Owner" or "beneficial owner" for purposes of the
definition of "Change of Control" and "Affiliate" has the meaning attributed to
it in Rules 13d-3 and 13d-5 under the Exchange Act (as in effect on the Issue
Date), whether or not applicable.
"Board of Directors" means, so long as Parent directly owns
all of the Company's Capital Stock and the Parent Guarantee is in effect, the
board of directors of Parent; provided, however, that if Parent no longer
directly owns all of the Company's Capital Stock or the Parent Guarantee is no
longer in effect, the board of directors of the Company, and, with respect to
any other Person, the board of directors (or if such Person is not a
corporation, the equivalent board of managers or members or body performing
similar functions for such Person) of such Person or any committee of the Board
of Directors of such Person authorized, with respect to any particular matter,
to exercise the power of the board of directors of such Person.
"Broker-Dealer" means any broker-dealer that receives Exchange
Notes for its own account in the Exchange Offer in exchange for Notes that were
acquired by such broker-dealer as a result of market-making or other trading
activities.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York, New
York are authorized or obligated by law or executive order to close.
"Capital Contribution" means any contribution to the equity of
the Company from Parent for which no consideration other than the issuance of
Qualified Capital Stock is given.
"Capital Stock" means, with respect to any corporation, any
and all shares, interests, rights to purchase, warrants, options, participations
2
PAGE
or other equivalents of or interests (however designated) in stock issued by
that corporation, but excluding debt securities convertible into such equity.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Cash Equivalent" means:
(1) securities issued or directly and fully guaranteed or
insured by the United States of America or any agency or instrumentality
thereof (provided, that the full faith and credit of the United States
of America is pledged in support thereof), or
(2) time deposits and certificates of deposit and commercial
paper issued by any domestic commercial bank or the parent corporation
of any domestic commercial bank of recognized standing having capital
and surplus in excess of $500 million, or
(3) commercial paper issued by others rated at least A-2 or the
equivalent thereof by Standard & Poor's Corporation or at least P-2 or
the equivalent thereof by Xxxxx'x Investors Service, Inc., or
(4) repurchase obligations with a term of not more than 7 days
for underlying securities of the types described in clause (1) above, or
(5) investments in money market funds substantially all of
whose assets comprise securities of the types described in clauses
(1) through (4) above,
and in the case of each of (1), (2), (3) and (4) maturing
within one year after the date of acquisition.
"Change of Control" means:
(1) Parent shall cease to own beneficially and of record all
of the Equity Interests of the Company; provided, that solely the
merger or consolidation of Parent and the Company shall not constitute
a Change of Control so long as immediately prior to such merger or
consolidation, Parent has no operations and no assets other than the
ownership of the Company's Capital Stock and other operations or assets
solely incidental thereto;
(2) any merger or consolidation of the Parent with or into any
Person, if, immediately after giving effect to such transaction(s), any
"person" (including any group that is deemed to be a "person") is or
becomes the "beneficial owner," directly or indirectly, of more than
50% of the aggregate Voting Equity Interests of the transferee(s) or
surviving entity or entities;
(3) any sale, lease, exchange, transfer or other conveyance,
whether direct or indirect, of all or substantially all of the assets
of Parent or the Company, on a consolidated basis, in one transaction
or a series of related transactions to any "person" (including any
group that is deemed to be a "person");
3
(4) any "person" (including any group that is deemed to be a
"person") is or becomes the "beneficial owner," directly or indirectly,
of more than 50% of the aggregate Voting Equity Interests of Parent;
(5) the Continuing Directors cease for any reason to constitute
a majority of the Board of Directors then in office; or
(6) Parent or the Company adopts a plan of liquidation.
As used in this definition, "person" (including any group that
is deemed to be a "person") has the meaning given by Sections 13(d) of the
Exchange Act, whether or not applicable.
"Clearstream" means Clearstream Banking, S.A., or its
successors.
"Company" means the entity identified as "the Company" in the
preamble to this Indenture and any successor thereto.
"Consolidated Amortization Expense" for any period means the
amortization expense of the Company and its Consolidated Subsidiaries for such
period, determined in accordance with GAAP.
"Consolidated Coverage Ratio" of any Person on any date of
determination (the "Transaction Date") means the ratio, on a pro forma basis, of
(a) the aggregate amount of Consolidated EBITDA of such Person attributable to
continuing operations and businesses (exclusive of amounts attributable to
operations and businesses permanently discontinued or disposed of) for the
Reference Period to (b) the aggregate Consolidated Fixed Charges of such Person
(exclusive of amounts attributable to operations and businesses permanently
discontinued or disposed of, but only to the extent that the obligations giving
rise to such Consolidated Fixed Charges would no longer be obligations
contributing to such Person's Consolidated Fixed Charges subsequent to the
Transaction Date) during the Reference Period; provided, that for purposes of
such calculation:
(1) Acquisitions which occurred during the Reference Period or
subsequent to the Reference Period and on or prior to the Transaction
Date shall be assumed to have occurred on the first day of the
Reference Period,
(2) transactions giving rise to the need to calculate the
Consolidated Coverage Ratio shall be assumed to have occurred on the
first day of the Reference Period,
(3) the incurrence of any Indebtedness (including issuance of
any Disqualified Capital Stock) during the Reference Period or
subsequent to the Reference Period and on or prior to the Transaction
Date (and the application of the proceeds therefrom to the extent used
to refinance or retire other Indebtedness) (other than Indebtedness
incurred under any revolving credit facility) shall be assumed to have
occurred on the first day of the Reference Period, and
(4) the Consolidated Fixed Charges of such Person attributable
to interest on any Indebtedness or dividends on any Disqualified Capital
Stock bearing a floating interest (or dividend) rate shall be computed
on a pro forma basis as if the average rate in effect from the beginning
4
of the Reference Period to the Transaction Date had been the applicable
rate for the entire period, unless such Person or any of its
Subsidiaries is a party to an Interest Swap or Hedging Obligation
(which shall remain in effect for the 12-month period immediately
following the Transaction Date) that has the effect of fixing the
interest rate on the date of computation, in which case such rate
(whether higher or lower) shall be used.
"Consolidated Depreciation Expense" for any period means the
depreciation expense of the Company and its Consolidated Subsidiaries for such
period, determined in accordance with GAAP.
"Consolidated EBITDA" means, with respect to any Person, for
any period, the Consolidated Net Income of such Person for such period adjusted
to add thereto (to the extent deducted from net revenues in determining
Consolidated Net Income), without duplication, the sum of
(1) Consolidated Income Tax Expense,
(2) Consolidated Amortization Expense (but only to the extent
not included in Consolidated Fixed Charges),
(3) Consolidated Depreciation Expense,
(4) Consolidated Fixed Charges, plus, to the extent excluded
from the definition of "Consolidated Fixed Charges," deferred financing
costs existing as of the Issue Date and the amortization thereof,
(5) all other non-cash charges (excluding any such charge that
represents an accrual or reserve for a cash expenditure for a future
period), and
(6) fees and expenses incurred in connection with the
Refinancing Transactions,
less the amount of all cash payments made by such Person or any of its
Subsidiaries during such period to the extent such payments relate to non-cash
charges that were added back in determining Consolidated EBITDA for such period
or any prior period; provided, that consolidated income tax expense and
depreciation and amortization of a Subsidiary that is a less than Wholly Owned
Subsidiary shall only be added to the extent of the equity interest of the
Company in such Subsidiary.
"Consolidated Fixed Charges" of any Person means, for any
period, the aggregate amount (without duplication and determined in each case in
accordance with GAAP) of:
(a) interest expensed or capitalized, paid, accrued, or
scheduled to be paid or accrued (including, in accordance with the following
sentence, interest attributable to Capitalized Lease Obligations and
Attributable Indebtedness) of such Person and its Consolidated Subsidiaries
during such period, including (1) amortization of debt issuance costs, debt
discounts or premium and other financing fees and expenses and non-cash interest
payments or accruals on any Indebtedness, (2) the interest portion of all
deferred payment obligations (but excluding deferred financing costs existing as
of the Issue Date and the amortization thereof), and (3) all commissions,
5
discounts and other fees and charges owed with respect to bankers' acceptances
and letters of credit financings and currency and Interest Swap and Hedging
Obligations, in each case to the extent attributable to such period, and
(b) the amount of dividends accrued or payable (or guaranteed)
by such Person or any of its Consolidated Subsidiaries in respect of Preferred
Stock (other than by Subsidiaries of such Person to such Person).
For purposes of this definition, (x) interest on a Capitalized
Lease Obligation or any Attributable Indebtedness shall be deemed to accrue at
an interest rate reasonably determined in good faith by the Company to be the
rate of interest implicit in such Capitalized Lease Obligation or any
Attributable Indebtedness in accordance with GAAP and (y) interest expense
attributable to any Indebtedness represented by the guarantee by such Person or
a Subsidiary of such Person of an obligation of another Person shall be deemed
to be the interest expense attributable to the Indebtedness guaranteed.
"Consolidated Income Tax Expense" for any period means the
provision of taxes of the Company and its Consolidated Subsidiaries, determined
in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person
for any period, the net income (or loss) of such Person and its Consolidated
Subsidiaries (determined on a consolidated basis in accordance with GAAP) for
such period, adjusted to exclude (only to the extent included in computing such
net income (or loss) and without duplication):
(a) all gains and losses which are either extraordinary (as
determined in accordance with GAAP) or are nonrecurring (including any gain from
the sale or other disposition of assets outside the ordinary course of business
or from the issuance or sale of any capital stock);
(b) the net income, if positive, of any Person, other than a
Consolidated Subsidiary, in which such Person or any of its Consolidated
Subsidiaries has an interest, except to the extent of the amount of any
dividends or distributions actually paid in cash to such Person or a
Consolidated Subsidiary of such Person during such period, but in any case not
in excess of such Person's pro rata share of such Person's net income for such
period;
(c) the net income, if positive, of any of such Person's
Consolidated Subsidiaries to the extent that the declaration or payment of
dividends or similar distributions is not at the time permitted by operation of
the terms of its charter or bylaws or any other agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to such
Consolidated Subsidiary; and
(d) the net income of, and all dividends and distributions from,
any Unrestricted Subsidiary.
In addition, Consolidated Net Income of the Company shall be
reduced by the amount of any Permitted Payments to Parent made during such
period in accordance with clause (a) of the definition thereof and, to the
extent not included in Consolidated Income Tax Expense of the Company, any
Permitted Payments to Parent made during such period in accordance with clause
(b) of the definition thereof.
6
"Consolidated Subsidiary" means, for any Person, each
Subsidiary of such Person (whether now existing or hereafter created or
acquired) the financial statements of which are consolidated for financial
statement reporting purposes with the financial statements of such Person in
accordance with GAAP.
"Consolidation" means, with respect to the Company, the
consolidation of the accounts of the Subsidiaries with those of the Company, all
in accordance with GAAP; provided, that "consolidation" will not include
consolidation of the accounts of any Unrestricted Subsidiary with the accounts
of the Company. The term "consolidated" has a correlative meaning to the
foregoing.
"Continuing Director" means during any period of 12
consecutive months after the Issue Date, individuals who at the beginning of any
such 12-month period constituted the Board of Directors (together with any new
directors whose election by the Board of Directors or whose nomination for
election by the shareholders of Parent or the Company, as applicable, was
approved by a vote of a majority of the directors then still in office who were
either directors at the beginning of such period or whose election or nomination
for election was previously so approved, including new directors designated in
or provided for in an agreement regarding the merger, consolidation or sale,
transfer or other conveyance, of all or substantially all of the assets of
Parent or the Company, as applicable, if such agreement was approved by a vote
of such majority of directors).
"Corporate Trust Office" means the principal office of the
Trustee at which at any time, its corporate trust business shall be
administered, which office at the date hereof is located at 00 Xxxxxxxxxx
Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000, or such other address as the Trustee may
designate from time to time by notice to the Company, or the principal corporate
trust office of any successor Trustee (or such other address as such successor
Trustee may designate from time to time by notice to the Company).
"Credit Agreement" means, collectively, the First Lien Credit
Agreement and the Second Lien Credit Agreement, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, as such credit agreement and/or related documents may be
amended, restated, supplemented, renewed, replaced or otherwise modified from
time to time whether or not with the same agent, trustee, representative lenders
or holders, and, subject to the proviso to the next succeeding sentence,
irrespective of any changes in the terms and conditions thereof. Without
limiting the generality of the foregoing, the term "Credit Agreement" shall
include agreements in respect of Interest Swap and Hedging Obligations with
lenders (or Affiliates thereof) party to the Credit Agreement and shall also
include any amendment, amendment and restatement, renewal, extension,
restructuring, supplement or modification to any Credit Agreement and all
refundings, refinancings and replacements of any Credit Agreement, in whole or
in part, including any agreement:
(1) extending the maturity of any Indebtedness incurred
thereunder or contemplated thereby,
(2) adding or deleting borrowers or guarantors thereunder, so
long as borrowers and issuers include one or more of the Company and its
Subsidiaries and their respective successors and assigns,
7
(3) increasing the amount of Indebtedness incurred thereunder or
available to be borrowed thereunder; provided, that on the date such
Indebtedness is incurred it would not be prohibited by Section 4.7(b)(2)
hereof, or
(4) otherwise altering the terms and conditions thereof in a
manner not prohibited by the terms of the Indenture.
"Custodian" means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Law.
"Default" means any event that is or with the passage of time
or the giving of notice or both would be an Event of Default.
"Definitive Note" means one or more certificated Notes
registered in the name of the Holder thereof and issued in accordance with
Section 2.6 hereof, in the form of Exhibit A hereto except that such Note shall
not include the information called for by footnotes 2, 3, 4 and 8 thereof.
"Depositary" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.3
hereof as the Depositary with respect to the Notes, until a successor shall have
been appointed and become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean or include such successor.
"Disqualified Capital Stock" means with respect to any Person,
(a) Equity Interests of such Person that, by its terms or by the terms of any
security into which it is convertible, exercisable or exchangeable, is, or upon
the happening of an event or the passage of time or both would be, required to
be redeemed or repurchased including at the option of the holder thereof by such
Person or any of its Subsidiaries, in whole or in part, on or prior to 91 days
following the Stated Maturity of the Notes and (b) any Equity Interests of any
Subsidiary of such Person other than any common equity with no preferences,
privileges, and no redemption or repayment provisions. Notwithstanding the
foregoing, any Equity Interests that would constitute Disqualified Capital Stock
solely because the holders thereof have the right to require the Company to
repurchase such Equity Interests upon the occurrence of a change of control or
an asset sale shall not constitute Disqualified Capital Stock if the terms of
such Equity Interests provide that the Company may not repurchase or redeem any
such Equity Interests pursuant to such provisions prior to the Company's
purchase of the Notes as are required to be purchased pursuant to the provisions
of this Indenture as described under Sections 4.13 and 4.14 hereof.
"Distribution Compliance Period" means the 40-day distribution
compliance period as defined in Regulation S.
"Equity Interests" means Capital Stock or partnership,
participation or membership interests and all warrants, options or other rights
to acquire Capital Stock or partnership, participation or membership interests
(but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock or partnership, participation or membership interests).
"Euroclear" means Euroclear Bank S.A./N.V., or its successor, as
operator of the Euroclear system.
8
"Event of Loss" means, with respect to any property or asset,
any (1) loss, destruction or damage of such property or asset or (2) any
condemnation, seizure or taking, by exercise of the power of eminent domain or
otherwise, of such property or asset, or confiscation or requisition of the use
of such property or asset.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means Series B Notes issued pursuant to an
Exchange Offer.
"Exchange Offer" means an offer that may be made by the
Company pursuant to the Registration Rights Agreement to exchange Exchange Notes
for Series A Notes.
"Exempted Affiliate Transaction" means (a) customary employee
compensation arrangements approved by a majority of independent (as to such
transactions) members of the Board of Directors, (b) Restricted Payments
permitted under the terms of Section 4.9 hereof, (c) transactions solely between
or among the Company and any of its Consolidated Subsidiaries or solely among
Consolidated Subsidiaries of the Company, (d) any transaction with an Affiliate
where the only consideration paid by the Company or any Subsidiary is Capital
Stock (other than Disqualified Capital Stock) of the Company or such Subsidiary
and (e) transactions with Parent in order to effect the Refinancing
Transactions.
"Existing Indebtedness" means Indebtedness of the Company and
its Subsidiaries (other than Indebtedness under the Credit Agreement) in
existence on the Issue Date, reduced to the extent such amounts are repaid,
refinanced or retired.
"fair market value" means the price that would be paid in an
arm's-length transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no compulsion to buy,
as determined in good faith by the Company.
"First Lien Credit Agreement" means the senior secured credit
agreement dated as of September 21, 2004 by and among Denny's, Inc. and Xxxxx'x
Realty, Inc., as Borrowers, and Parent, the Company, and DFO, Inc., as
guarantors thereunder, the lenders named therein, Bank of America, N.A., as
Administrative Agent, and UBS Securities LLC, as Syndication Agent, providing
for an aggregate $300 million senior secured facility, consisting of an
aggregate $225 million five-year term loan facility and an aggregate $75 million
senior secured revolving credit facility, of which $45 million is available for
issuance of letters of credit.
"GAAP" means United States generally accepted accounting
principles set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a significant segment
of the accounting profession in the United States as in effect on the Issue
Date.
"Global Notes" means one or more Notes in the form of Exhibit
A hereto, which includes the information referred to in footnotes 2, 3 and 8 to
the form of Note attached hereto as Exhibit A, issued under this Indenture, that
is deposited with or on behalf of and registered in the name of the Depositary
or its nominee.
"Global Note Legend" means the legend set forth in Section
2.6(g)(ii) hereof, which is required to be placed on all Global Notes issued
under this Indenture.
9
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness. When used with respect to the Notes, a "Guarantee" means the
Parent Guarantee in accordance with Article X hereof and any future Guarantee of
the Notes by any Subsidiary pursuant to Section 4.15 hereof.
"Guarantor" means Parent, in its capacity as a guarantor of
the Notes, and any other entity providing a Guarantee of the Notes pursuant to
this Indenture.
"Holder" means a Person in whose name a Note is registered on
the Registrar's books.
"Indebtedness" of any Person means, without duplication,
(a) all liabilities and obligations, contingent or otherwise,
of such Person, to the extent such liabilities and obligations would appear as a
liability upon the consolidated balance sheet of such Person in accordance with
GAAP, (1) in respect of borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a portion
thereof), (2) evidenced by bonds, notes, debentures or similar instruments, or
(3) representing the balance deferred and unpaid of the purchase price of any
property or services, except those incurred in the ordinary course of its
business that would constitute ordinarily a trade payable to trade creditors;
(b) all liabilities and obligations, contingent or otherwise, of
such Person (1) evidenced by bankers' acceptances or similar instruments issued
or accepted by banks, (2) relating to any Capitalized Lease Obligation, or (3)
evidenced by a letter of credit or a reimbursement obligation of such Person
with respect to any letter of credit;
(c) all net obligations of such Person under Interest Swap and
Hedging Obligations;
(d) all liabilities and obligations of others of the kind
described in the preceding clause (a), (b) or (c) that such Person has
guaranteed or provided credit support for or that is otherwise its legal
liability or which are secured by any assets or property of such Person;
(e) any and all deferrals, renewals, extensions, refinancing and
refundings (whether direct or indirect) of, or amendments, modifications or
supplements to, any liability of the kind described in any of the preceding
clauses (a), (b), (c) or (d), or this clause (e), whether or not between or
among the same parties; and
(f) all Disqualified Capital Stock of such Person (measured at
the greater of its voluntary or involuntary maximum fixed repurchase price plus
accrued and unpaid dividends).
For purposes hereof, the "maximum fixed repurchase price" of any Disqualified
Capital Stock which does not have a fixed repurchase price shall be calculated
in accordance with the terms of such Disqualified Capital Stock as if such
Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such price
is based upon, or measured by, the fair market value of such Disqualified
Capital Stock, such fair market value to be determined in good faith by the
Board of Directors of the issuer of such Disqualified Capital Stock.
10
The amount of any Indebtedness outstanding as of any date shall be (1) the
accreted value thereof, in the case of any Indebtedness issued with original
issue discount, but the accretion of original issue discount in accordance with
the original terms of Indebtedness issued with an original issue discount shall
not be deemed to be an incurrence and (2) the principal amount thereof, together
with any interest thereon that is more than 30 days past due, in the case of any
other Indebtedness.
"Indenture" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof.
"Indirect Participant" means an entity that, with respect to
the Depository Trust Company, clears through or maintains a direct or indirect,
custodial relationship with a Participant.
"Initial Purchasers" means the initial purchasers of the
Series A Notes under the Purchase Agreement.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act, who is not also a QIB.
"Interest Payment Date" means the stated due date of an
installment of interest on the Notes.
"Interest Swap and Hedging Obligation" means any obligation of
any Person pursuant to any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate exchange agreement,
currency exchange agreement or any other agreement or arrangement designed to
protect against fluctuations in interest rates or currency values, including,
without limitation, any arrangement whereby, directly or indirectly, such Person
is entitled to receive from time to time periodic payments calculated by
applying either a fixed or floating rate of interest on a stated notional amount
in exchange for periodic payments made by such Person calculated by applying a
fixed or floating rate of interest on the same notional amount.
"Investment" by any Person in any other Person means (without
duplication):
(a) the acquisition (whether by purchase, merger, consolidation
or otherwise) by such Person (whether for cash, property, services, securities
or otherwise) of Equity Interests, capital stock, bonds, notes, debentures,
partnership or other ownership interests or other securities, including any
options or warrants, of such other Person;
(b) the making by such Person of any deposit with, or advance,
loan or other extension of credit to, such other Person (including the purchase
of property from another Person subject to an understanding or agreement,
contingent or otherwise, to resell such property to such other Person) or any
commitment to make any such advance, loan or extension (but excluding accounts
receivable, endorsements for collection or deposits arising in the ordinary
course of business);
(c) other than guarantees of Indebtedness of the Company or any
Subsidiary to the extent permitted by Section 4.7 hereof, the entering into by
11
such Person of any guarantee of, or other credit support or contingent
obligation with respect to, Indebtedness or other liability of such other
Person;
(d) the making of any capital contribution by such Person to
such other Person; and
(e) the designation by the Board of Directors of any Person to
be an Unrestricted Subsidiary.
The Company shall be deemed to make an Investment in an amount equal to the fair
market value of the net assets of any subsidiary (or, if neither the Company nor
any of its Subsidiaries has theretofore made an Investment in such subsidiary,
in an amount equal to the Investments being made), at the time that such
subsidiary is designated an Unrestricted Subsidiary, and any property
transferred to an Unrestricted Subsidiary from the Company or a Subsidiary of
the Company shall be deemed an Investment valued at its fair market value at the
time of such transfer. The Company or any of its Subsidiaries shall be deemed to
have made an Investment in a Person that is or was a Wholly Owned Subsidiary if,
upon the issuance, sale or other disposition of any portion of the Company's or
the Subsidiary's ownership in the Capital Stock of such Person, such Person
ceases to be a Wholly Owned Subsidiary, in an amount equal to the fair market
value of the Capital Stock of and all other Investments in such Wholly Owned
Subsidiary not sold or disposed of (which amount shall be determined in the good
faith judgment of the Board of Directors if in excess of $5 million). The fair
market value of each Investment shall be measured at the time made or returned,
as applicable.
"Investment Company Act" means the Investment Company Act of
1940, as amended.
"Issue Date" means the date of first issuance of the Notes
under this Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York, or the city in which the principal
corporate trust office of the Trustee is located, or at a place of payment, are
authorized by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Notes for use by such
Holders in connection with the Exchange Offer.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation or other encumbrance
upon or with respect to any property of any kind, real or personal, movable or
immovable, now owned or hereafter acquired.
"Liquidated Damages" means all liquidated damages then owing
pursuant to the Registration Rights Agreement.
"Net Cash Proceeds" means the aggregate amount of cash or Cash
Equivalents received by the Company in the case of a sale, or Capital
Contribution in respect, of Qualified Capital Stock and by the Company and its
Subsidiaries in respect of an Asset Sale plus, in the case of an issuance of
12
Qualified Capital Stock upon any exercise, exchange or conversion of securities
(including options, warrants, rights and convertible or exchangeable debt) of
the Company that were issued for cash on or after the Issue Date, the amount of
cash originally received by the Company upon the issuance of such securities
(including options, warrants, rights and convertible or exchangeable debt) less,
in each case, the sum of all payments, fees, commissions and (in the case of
Asset Sales, reasonable and customary), expenses (including, without limitation,
the fees and expenses of legal counsel and investment banking fees and expenses)
incurred in connection with such Asset Sale or sale of Qualified Capital Stock,
and, in the case of an Asset Sale only, less the amount (estimated reasonably
and in good faith by the Company) of income, franchise, sales and other
applicable taxes required to be paid by the Company or any of its respective
Subsidiaries in connection with such Asset Sale.
"Non-Recourse Indebtedness" means Indebtedness (a) as to which
neither the Company nor any of its Subsidiaries (1) provides credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (2) is directly or indirectly liable (as a guarantor
or otherwise), or (3) constitutes the lender, and (b) no default with respect to
which would permit (upon notice, lapse of time or both) any holder of any other
Indebtedness of the Company or any of its Subsidiaries to declare a default on
such other Indebtedness or cause the payment thereof to be accelerated or
payable (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) prior to its stated
maturity.
"Non-U.S. Person" means any Person other than a U.S. Person.
"Notes" has the meaning assigned to it in the preamble to this
Indenture. The Series A Notes and the Additional Notes (and, in each case, any
Exchange Notes or Private Exchange Notes issued in exchange therefor) shall be
treated as a single class for all purposes under this Indenture, and unless the
context otherwise requires, all references to the Notes shall include the Series
A Notes and any Additional Notes (and, in each case, any Exchange Notes or
Private Exchange Notes issued in exchange therefor).
"Notes Custodian" means the Trustee, as custodian with respect
to the Notes in global form, or any successor entity thereto.
"Offering" means the offering of the Notes by the Company.
"Officer" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the Controller, the Secretary or any Vice President of such Person.
"Officers' Certificate" means the officers' certificate,
signed by one or more Officers, to be delivered upon the occurrence of certain
events as set forth in this Indenture, that meets the requirements of Sections
11.4 and 11.5 hereof.
"Opinion of Counsel" means an opinion from legal counsel who
is reasonably acceptable to the Trustee, that meets the requirements of Sections
11.4 and 11.5 hereof. The counsel may be an employee of or counsel to the
Company or any Subsidiary of the Company.
"Parent" means Denny's Corporation, a Delaware corporation, or
its successor.
"Parent Guarantee" means the Guarantee of the Notes by Xxxxxx.
13
"Participant" means, with respect to the Depositary,
Euroclear or Clearstream, a Person who has an account with the Depositary,
Euroclear or Clearstream, respectively (and, with respect to The Depository
Trust Company, shall include Euroclear and Clearstream).
"Permitted Indebtedness" means that:
(a) the Company may incur Indebtedness evidenced by the Notes,
issued pursuant to this Indenture up to the amounts being issued on the original
Issue Date less any amounts repaid or retired;
(b) the Company or any Subsidiary, as applicable, may incur
Refinancing Indebtedness with respect to any Existing Indebtedness or any
Indebtedness (including Disqualified Capital Stock) described in clause (a) of
this definition or incurred pursuant to the Debt Incurrence Ratio test of
Section 4.7(a)(2) hereof or which was refinanced pursuant to this clause (b);
(c) the Company and its Wholly Owned Subsidiaries may incur
Indebtedness solely in respect of bankers acceptances, letters of credit and
performance bonds (to the extent that such incurrence does not result in the
incurrence of any obligation to repay any obligation relating to borrowed money
or other Indebtedness), all in the ordinary course of business in accordance
with customary industry practices, in amounts and for the purposes customary in
the Company's industry;
(d) the Company may incur Indebtedness owed to (borrowed from)
any Wholly Owned Subsidiary, and any Wholly Owned Subsidiary may incur
Indebtedness owed to (borrowed from) any other Wholly Owned Subsidiary or the
Company; provided, that in the case of Indebtedness of the Company, such
obligations shall be unsecured and contractually subordinated in all respects to
the Company's obligations pursuant to the Notes and any event that causes such
Wholly Owned Subsidiary no longer to be a Wholly Owned Subsidiary (including by
designation to be an Unrestricted Subsidiary) shall be deemed to be a new
incurrence by such issuer of such Indebtedness and any guarantor thereof subject
to Section 4.7 hereof;
(e) Attributable Indebtedness not to exceed $10 million at any
time outstanding; and
(f) the Company and any Subsidiary may incur Interest Swap and
Hedging Obligations that are incurred for the purpose of fixing or hedging
interest rate or currency risk with respect to any fixed or floating rate
Indebtedness that is permitted by this Indenture to be outstanding or any
receivable or liability the payment of which is determined by reference to a
foreign currency; provided, that the notional amount of any such Interest Swap
and Hedging Obligation does not exceed the principal amount of Indebtedness to
which such Interest Swap and Hedging Obligation relates.
"Permitted Investment" means:
(a) any Investment in any of the Notes;
(b) any Investment in Cash Equivalents;
14
(c) intercompany notes to the extent permitted under clause (d)
of the definition of "Permitted Indebtedness";
(d) any Investment by the Company or any Subsidiary in a Person
in a Related Business if as a result of such Investment such Person immediately
becomes a Wholly Owned Subsidiary or such Person is immediately merged with or
into the Company or a Wholly Owned Subsidiary;
(e) other Investments in any Person or Persons, provided, that
after giving pro forma effect to each such Investment, the aggregate amount of
all such Investments made on and after the Issue Date pursuant to this clause
(e) that are outstanding (after giving effect to any such Investments that are
returned to the Company or the Subsidiary that made such prior Investment,
without restriction, in cash on or prior to the date of any such calculation,
but only up to the amount of the Investment made under this clause (e) in such
Person), at any time does not in the aggregate exceed $20 million (measured by
the value attributed to the Investment at the time made or returned, as
applicable);
(f) any Investment in any Person in exchange for the Company's
Qualified Capital Stock or the Net Cash Proceeds of any substantially concurrent
sale of the Company's Qualified Capital Stock;
(g) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in compliance
with Section 4.13hereof;
(h) Investments in connection with Interest Swap and Hedging
Obligations; and
(i) obligations or shares of stock received in connection with
any good faith settlement or bankruptcy proceeding involving a claim relating to
a Permitted Investment.
"Permitted Lien" means:
(a) Liens existing on the Issue Date;
(b) Xxxxx imposed by governmental authorities for taxes,
assessments or other charges not yet subject to penalty or which are being
contested in good faith and by appropriate proceedings, if adequate reserves
with respect thereto are maintained on the books of the Company in accordance
with GAAP;
(c) statutory Liens of carriers, warehousemen, mechanics,
material men, landlords, repairmen or other like Liens arising by operation of
law in the ordinary course of business provided that (1) the underlying
obligations are not overdue for a period of more than 30 days, or (2) such Liens
are being contested in good faith and by appropriate proceedings and adequate
reserves with respect thereto are maintained on the books of the Company in
accordance with GAAP;
(d) Liens securing the performance of bids, trade contracts
(other than borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
15
(e) easements, rights-of-way, zoning, similar restrictions and
other similar encumbrances or title defects which, singly or in the aggregate,
do not in any case materially detract from the value of the property subject
thereto (as such property is used by the Company or any of its Subsidiaries) or
interfere with the ordinary conduct of the business of the Company or any of its
Subsidiaries;
(f) Liens arising by operation of law in connection with
judgments, only to the extent, for an amount and for a period not resulting in
an Event of Default with respect thereto;
(g) Liens incurred or pledges or deposits made in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security legislation;
(h) Liens securing the Notes;
(i) Liens securing Indebtedness of a Person existing at the time
such Person becomes a Subsidiary or is merged with or into the Company or a
Subsidiary or Liens securing Indebtedness incurred in connection with an
Acquisition, provided, that such Liens were in existence prior to the date of
such acquisition, merger or consolidation, were not incurred in anticipation
thereof, and do not extend to any other assets;
(j) Liens arising from Purchase Money Indebtedness permitted to
be incurred pursuant to Section 4.7(b)(1) hereof provided such Liens relate
solely to the property which is subject to such Purchase Money Indebtedness;
(k) leases or subleases granted to other Persons in the ordinary
course of business not materially interfering with the conduct of the business
of the Company or any of its Subsidiaries or materially detracting from the
value of the relative assets of the Company or any Subsidiary;
(l) Liens arising from precautionary Uniform Commercial Code
financing statement filings regarding operating leases entered into by the
Company or any of its Subsidiaries in the ordinary course of business;
(m) Liens securing Refinancing Indebtedness incurred to
refinance any Indebtedness that was previously so secured in a manner no more
adverse to the Holders of the Notes than the terms of the Liens securing such
refinanced Indebtedness, and provided that the Indebtedness secured is not
increased and the Lien is not extended to any additional assets or property that
would not have been security for the Indebtedness refinanced;
(n) Liens securing Indebtedness incurred under the Credit
Agreement in accordance with the terms of Section 4.7(b)(2) hereof;
(o) Liens to secure Attributable Indebtedness permitted to be
incurred pursuant to clause (e) of the definition of "Permitted Indebtedness";
provided that any such Lien shall not extend to or cover any asset of the
Company or any Subsidiary other than the assets that are subject to the sale and
leaseback transaction in which the Attributable Indebtedness is incurred;
16
(p) Liens arising from Indebtedness represented by Capitalized
Lease Obligations permitted to be incurred pursuant to Section 4.7(b)(3) hereof
provided such Liens relate solely to the property which is subject to such
Capitalized Lease Obligations; and
(q) other Liens securing obligations in an aggregate amount not
to exceed $10 million at any time outstanding.
"Permitted Payments to Parent" means without duplication as to
amounts:
(a) payments to Parent in an amount sufficient to permit
Parent to pay reasonable and necessary operating expenses of the Parent, not in
excess of $1 million in the aggregate during any consecutive 12-month period,
and
(b) payments to Parent to enable Parent to pay foreign, federal,
state or local tax liabilities ("Tax Payment"), not to exceed the amount of any
tax liabilities that would be otherwise payable by the Company and its
Subsidiaries to the appropriate taxing authorities if each of the Company and
such Subsidiaries filed a separate tax return, to the extent that the Parent has
an obligation to pay such tax liabilities relating to the operations, assets, or
capital of the Company or its Subsidiaries; provided, however, that (1),
notwithstanding the foregoing, in the case of determining the amount of a Tax
Payment that is permitted to be paid by Company and any of its United States
Subsidiaries in respect of their federal income tax liability, such payment
shall be determined assuming that Company is the parent company of an affiliated
group (the "Company Affiliated Group") filing a consolidated federal income tax
return and that Parent and each United States Subsidiary is a member of the
Company Affiliated Group and (2) any Tax Payments shall either be used by Parent
to pay such tax liabilities within 90 days of Parent's receipt of such payment
or refunded to the payee.
"Person" or "person" means any corporation, individual,
limited liability company, joint stock company, joint venture, partnership,
unincorporated association, governmental regulatory entity, country, state or
political subdivision thereof, trust, municipality or other entity.
"Preferred Stock" means any Equity Interest of any class or
classes of a Person (however designated) which is preferred as to payments of
dividends, or as to distributions upon any liquidation or dissolution, over
Equity Interests of any other class of such Person.
"Private Exchange Notes" means Notes issued as required
pursuant to Section 2(b) of the Registration Rights Agreement and that are
identical in all material respects to the Exchange Notes except that the Private
Exchange Notes may be subject to restrictions on transfer and bear a legend to
such effect.
"Private Placement Legend" means the legend set forth in
Section 2.6(g)(i) hereof to be placed on all Notes issued under this Indenture
except where specifically stated otherwise by the provisions of this Indenture.
"Pro Forma" or "pro forma" shall have the meaning set forth in
Regulation S-X of the Securities Act, unless otherwise specifically stated
herein.
"Purchase Agreement" means the Purchase Agreement, dated
September 29, 2004, among the Company, Parent and the Initial Purchasers,
pursuant to which the Initial Purchasers agreed to purchase, and the Company
agreed to sell, the Notes.
17
"Purchase Money Indebtedness" of any Person means any
Indebtedness of such Person to any seller or other Person incurred solely to
finance the acquisition (including in the case of a Capitalized Lease
Obligation, the lease), construction, installation or improvement of any real or
personal tangible property which is directly related to a Related Business of
such Person and which is incurred within 180 days following such acquisition,
construction, installation or improvement and is secured only by the assets so
financed.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Qualified Capital Stock" means any Capital Stock of the
Company that is not Disqualified Capital Stock.
"Qualified Equity Offering" means any (1) underwritten public
offering of Capital Stock (other than Disqualified Capital Stock) of Parent or
(2) a private offering for cash of Capital Stock (other than Disqualified
Capital Stock) of Parent, in each case where the cash proceeds of such sale in
an amount equal to 100% of the aggregate principal amount of the Notes to be
redeemed therewith and any applicable premium, are contributed to the Company as
a Capital Contribution concurrently therewith.
"Qualified Exchange" means:
(1) any legal defeasance, redemption, retirement, repurchase or
other acquisition of Capital Stock or Indebtedness of the Company issued
on or after the Issue Date with the Net Cash Proceeds received by the
Company from the substantially concurrent sale of its Qualified Capital
Stock (other than to a Subsidiary);
(2) any issuance of Qualified Capital Stock of the Company
in exchange for any Capital Stock or Indebtedness of the Company
issued on or after the Issue Date; or
(3) any issuance of subordinated Refinancing Indebtedness of the
Company in exchange for Indebtedness (other than Disqualified Capital
Stock) of the Company issued on or after the Issue Date.
"Record Date" means a Record Date specified in the Notes,
whether or not such date is a Business Day.
"Reference Period" with regard to any Person means the four
full fiscal quarters ended immediately preceding any date upon which any
determination is to be made pursuant to the terms of the Notes or this
Indenture.
"Refinancing Indebtedness" means Indebtedness (including
Disqualified Capital Stock) (a) issued in exchange for, or the proceeds from the
issuance and sale of which are used substantially concurrently to repay, redeem,
defease, refund, refinance, discharge or otherwise retire for value, in whole or
in part, or (b) constituting an amendment, modification or supplement to, or a
deferral or renewal of ((a) and (b) above are, collectively, a "Refinancing"),
any other Indebtedness (including Disqualified Capital Stock) in a principal
amount or, in the case of Disqualified Capital Stock, liquidation preference,
not to exceed (after deduction of reasonable and customary fees and expenses
incurred in connection with the Refinancing plus the amount of any premium paid
in connection with such Refinancing) the lesser of (1) the principal amount or,
in the case of Disqualified Capital Stock, liquidation preference, of the
Indebtedness (including Disqualified Capital Stock) so Refinanced and (2) if
such Indebtedness being Refinanced was issued with an original issue discount,
18
the accreted value thereof (as determined in accordance with GAAP) at the time
of such Refinancing; provided, that (A) such Refinancing Indebtedness shall only
be used to refinance outstanding Indebtedness (including Disqualified Capital
Stock) of such Person issuing such Refinancing Indebtedness (except that the
Company may refinance Indebtedness of a Subsidiary, and any Subsidiary may
refinance Indebtedness of a Wholly-Owned Subsidiary), (B) such Refinancing
Indebtedness shall (x) not have an Average Life shorter than the Indebtedness
(including Disqualified Capital Stock) to be so refinanced at the time of such
Refinancing, and (y) in all respects, be no less contractually subordinated or
junior, if applicable, to the rights of Holders of the Notes than was the
Indebtedness (including Disqualified Capital Stock) to be refinanced, (C) such
Refinancing Indebtedness shall have a final stated maturity or redemption date,
as applicable, no earlier than the final stated maturity or redemption date, as
applicable, of the Indebtedness (including Disqualified Capital Stock) to be so
refinanced or, if sooner, 91 days after the Stated Maturity of the Notes, and
(D) such Refinancing Indebtedness shall be secured (if secured) in a manner no
more adverse to the Holders of the Notes than the terms of the Liens (if any)
securing such refinanced Indebtedness, including, without limitation, the amount
of Indebtedness secured shall not be increased.
"Refinancing Transactions" means, collectively:
(1) Parent's private placement of $92 million in shares of its
common stock completed in July 2004;
(2) the execution and delivery by Xxxxxx, the Company and
certain Subsidiaries on September 21, 2004 of the Credit Agreement and
the initial borrowings thereunder occurring on or prior to the Issue
Date; and
(3) the initial issuance of the Notes occurring on the Issue
Date;
the proceeds of which were used collectively to: (a) repay amounts
outstanding under the credit agreement, dated as of December 16, 2002,
as amended and restated as of September 26, 2003, by and among Denny's,
Inc. and Denny's Realty, as borrowers, Parent, the Company and DFO,
Inc., as guarantors, the lenders named therein and the other parties
thereto, (b) repurchase all of the outstanding aggregate principal
amount of Parent's 11 1/4% Senior Notes Due 2008 pursuant to open
market purchases, the tender offer therefor commenced on September 7,
2004 or a redemption thereof occurring as described in the offering
memorandum dated September 29, 2004 relating to the initial offering of
the Notes, (c) repurchase all of the outstanding aggregate principal
amount of Parent's and the Company's 12 3/4% Senior Notes Due 2007
pursuant to open market purchases, the tender offer therefor commenced
on September 7, 2004 or a redemption thereof occurring as described in
the offering memorandum dated September 29, 2004 relating to the
initial offering of the Notes; (d) pay fees and expenses in connection
with the transactions described in this definition; and (e) for working
capital and general corporate purposes.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the Issue Date, by and among the Company and the other
parties named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time.
"Reg S Permanent Global Note" means one or more permanent
Global Notes bearing the Private Placement Legend, that shall be issued in an
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aggregate amount of denominations equal in total to the outstanding principal
amount of the Reg S Temporary Global Note upon expiration of the Distribution
Compliance Period.
"Reg S Temporary Global Note" means one or more temporary
Global Notes bearing the Private Placement Legend and the Reg S Temporary Global
Note Legend, issued in an aggregate amount of denominations equal in total to
the outstanding principal amount of the Notes initially sold in reliance on Rule
903 of Regulation S.
"Reg S Temporary Global Note Legend" means the legend set
forth in Section 2.6(g)(iii) hereof, which is required to be placed on all Reg S
Temporary Global Notes issued under this Indenture.
"Regulation S" means Regulation S promulgated under the
Securities Act, as it may be amended from time to time, and any successor
provision thereto.
"Regulation S Global Note" means a Reg S Temporary Global Note
or a Reg S Permanent Global Note, as the case may be.
"Related Business" means the business conducted (or proposed
to be conducted) by the Company and its Subsidiaries as of the Issue Date as
described in the offering memorandum dated September 29, 2004, relating to the
initial offering of the Notes, and any and all businesses that in the good faith
judgment of the Board of Directors are materially related, ancillary or similar
businesses.
"Responsible Officer" shall mean, when used with respect to
the Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Definitive Note" means one or more Definitive
Notes bearing the Private Placement Legend, issued under this Indenture.
"Restricted Global Note" means one or more Global Notes
bearing the Private Placement Legend, issued under this Indenture; provided,
that in no case shall an Exchange Note issued in accordance with this Indenture
and the terms of the Registration Rights Agreement be a Restricted Global Note.
"Restricted Investment" means, in one or a series of related
transactions, any Investment, other than a Permitted Investment.
"Restricted Payment" means, with respect to any Person:
(a) the declaration or payment of any dividend or other
distribution in respect of Equity Interests of such Person or any parent of such
Person,
(b) any payment (except to the extent with Qualified Capital
Stock) on account of the purchase, redemption or other acquisition or retirement
for value of Equity Interests of such Person or any parent of such Person,
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(c) other than with the proceeds from the substantially
concurrent incurrence of, or in exchange for, Refinancing Indebtedness, any
purchase, redemption, or other acquisition or retirement for value of, any
payment in respect of any amendment of the terms of or any defeasance of, any
Subordinated Indebtedness, directly or indirectly, by such Person or a parent or
Subsidiary of such Person prior to the scheduled maturity, any scheduled
repayment of principal, or scheduled sinking fund payment, as the case may be,
of such Indebtedness and
(d) any Restricted Investment by such Person;
provided, however, that the term "Restricted Payment" does not include (1) any
dividend, distribution or other payment on or with respect to Equity Interests
of an issuer to the extent payable solely in shares of Qualified Capital Stock
of such issuer, or (2) any dividend, distribution or other payment to the
Company, or to any of its Wholly Owned Subsidiaries, by any of its Subsidiaries.
"Rule 144" means Rule 144 promulgated under the Securities
Act, as it may be amended from time to time, and any successor provision
thereto.
"Rule 144A" means Rule 144A promulgated under the Securities
Act, as it may be amended from time to time, and any successor provision
thereto.
"Second Lien Credit Agreement" means the senior secured credit
agreement dated as of September 21, 2004, by and among Denny's, Inc. and Xxxxx'x
Realty, Inc., as Borrowers, and Parent, the Company, and DFO, Inc., as
guarantors thereunder, the lenders named therein, Bank of America, N.A., as
Administrative Agent, and UBS Securities LLC, as Syndication Agent, providing
for an aggregate $120 million senior secured second lien term loan facility.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission thereunder.
"Shelf Registration Statement" shall have the meaning set
forth in the Registration Rights Agreement.
"Significant Subsidiary" shall be a Subsidiary that satisfies
the definition of Significant Subsidiary under Regulation S-X of the Securities
Act, as in effect on the Issue Date.
"Special Record Date" means, for payment of any Defaulted
Interest, a date fixed by the Paying Agent pursuant to Section 2.12 hereof.
"Stated Maturity," when used with respect to any Note, means
October 1, 2012.
"Subordinated Indebtedness" means Indebtedness of the Company
that is subordinated in right of payment by its terms or the terms of any
document or instrument or instrument relating thereto ("contractually") to the
Notes, as applicable, in any respect.
"Subsidiary," with respect to any Person, means (1) a
corporation a majority of whose Equity Interests with voting power, under
ordinary circumstances, to elect directors is at the time, directly or
indirectly, owned by such Person, by such Person and one or more Subsidiaries of
such Person or by one or more Subsidiaries of such Person, (2) any other Person
(other than a corporation) in which such Person, one or more Subsidiaries of
such Person, or such Person and one or more Subsidiaries of such Person,
21
directly or indirectly, at the date of determination thereof has a majority
ownership interest, or (3) a partnership in which such Person or a Subsidiary of
such Person is, at the time, a general partner and in which such Person,
directly or indirectly, at the date of determination thereof has a majority
ownership interest. Notwithstanding the foregoing, an Unrestricted Subsidiary
shall not be a Subsidiary of the Company or of any Subsidiary of the Company.
Unless the context requires otherwise, Subsidiary means each direct and indirect
Subsidiary of the Company.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"Transfer Restricted Notes" means Global Notes and Definitive
Notes that bear or are required to bear the Private Placement Legend, issued
under this Indenture.
"Trustee" means the entity identified as the "Trustee" in the
preamble to this Indenture until a successor replaces it in accordance with the
applicable provisions of this Indenture and thereafter means such successor
serving hereunder.
"Unrestricted Definitive Note" means one or more Definitive
Notes that do not bear and are not required to bear the Private Placement
Legend, issued under this Indenture.
"Unrestricted Global Note" means one or more permanent Global
Notes representing a series of Notes that does not bear and is not required to
bear the Private Placement Legend, issued under this Indenture.
"Unrestricted Subsidiary" means any subsidiary of the Company
that does not directly, indirectly or beneficially own any Capital Stock of, or
Subordinated Indebtedness of, or own or hold any Lien on any property of, the
Company or any parent of the Company or any other Subsidiary of the Company and
that, at the time of determination, shall be an Unrestricted Subsidiary (as
designated by the Board of Directors); provided, that such Subsidiary at the
time of such designation (a) has no Indebtedness other than Non-Recourse
Indebtedness; (b) is not party to any agreement, contract, arrangement or
understanding with the Company or any Subsidiary of the Company unless the terms
of any such agreement, contract, arrangement or understanding are no less
favorable to the Company or such Subsidiary than those that might be obtained at
the time from Persons who are not Affiliates of the Company; (c) is a Person
with respect to which neither the Company nor any of its Subsidiaries has any
direct or indirect obligation (x) to subscribe for additional Equity Interests
or (y) to maintain or preserve such Person's financial condition or to cause
such Person to achieve any specified levels of operating results; and (d) has
not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Company or any of its Subsidiaries. The Board of
Directors may designate any Unrestricted Subsidiary to be a Subsidiary,
provided, that (1) no Default or Event of Default is existing or shall occur as
a consequence thereof and (2) immediately after giving effect to such
designation, on a pro forma basis, the Company could incur at least $1.00 of
Indebtedness pursuant to the Debt Incurrence Ratio of Section 4.7(a)(2) hereof.
Each such designation shall be evidenced by filing with the Trustee a certified
copy of the resolution giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
conditions.
"U.S. Government Obligations" means direct non-callable
obligations of, or noncallable obligations guaranteed by, the United States of
America for the payment of which obligation or guarantee the full faith and
credit of the United States of America is pledged.
22
"U.S. Person" means a U.S. person as defined in Rule 902(k)
under the Securities Act.
"Voting Equity Interests" means Equity Interests which at the
time are entitled to vote in the election of, as applicable, directors, members
or partners generally.
"Wholly Owned Subsidiary" means a Subsidiary all the Equity
Interests of which (other than directors' qualifying shares) are owned by the
Company or one or more Wholly Owned Subsidiaries of the Company or a combination
thereof.
SECTION 1.2 OTHER DEFINITIONS
Term Defined in Section
---- ------------------
"Affiliate Transaction" 4.12
"Asset Sale" 4.13
"Asset Sale Amount" 4.13
"Asset Sale Offer" 4.13
"Asset Sale Offer Amount" 4.13
"Asset Sale Offer Period" 4.13
"Asset Sale Offer Price" 4.13
"Authentication Order" 2.2
"Benefited Party" 10.1
"Change of Control Offer" 4.14
"Change of Control Offer Period" 4.14
"Change of Control Purchase Date" 4.14
"Change of Control Purchase Price" 4.14
"Covenant Defeasance" 8.3
"Debt Incurrence Ratio" 4.7
"Defaulted Interest" 2.12
"DTC" 2.3
"Event of Default" 6.1
"Excess Proceeds" 4.13
"Guarantee Obligations" 10.1
"incur" or "incurrence" 4.7
"Incurrence Date" 4.7
"Legal Defeasance" 8.2
"Paying Agent" 2.3
"Redemption Date" 3.7
"Registrar" 2.3
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the Securities and Exchange Commission;
23
"obligor" on the Notes means the Company, Guarantor and any
successor obligor upon the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
under the TIA have the meanings so assigned to them.
SECTION 1.4 RULES OF CONSTRUCTION
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article,
Section or other subdivision; and
(7) references to sections of or rules under the Securities Act
and the Exchange Act shall be deemed to include substitute, replacement
of successor sections or rules adopted by the Commission from time to
time.
ARTICLE II
THE NOTES
SECTION 2.1 FORM AND DATING
(a) General. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The Notes
may have notations, legends or endorsements required by law, stock exchange rule
or usage. Each Note shall be dated the date of its authentication. The Notes
shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company, the Parent and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.
(b) Global Notes. Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (including the Global
Note Legend thereon and the "Schedule of Exchanges of Interests in the Global
Note" attached thereto). Notes issued in definitive form shall be substantially
in the form of Exhibit A attached hereto (but without the Global Note Legend
thereon and without the "Schedule of Exchanges of Interests in the Global Note"
24
attached thereto). Each Global Note shall represent such of the outstanding
Notes as shall be specified therein and each shall provide that it shall
represent the aggregate principal amount of outstanding Notes from time to time
endorsed thereon and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee or the Notes Custodian, at the direction of the Trustee, in accordance
with instructions given by the Holder thereof as required by Section 2.6 hereof.
(c) Euroclear and Clearstream Procedures Applicable. The
provisions of the "Operating Procedures of the Euroclear System" and "Terms and
Conditions Governing Use of Euroclear" and the "General Terms and Conditions of
Clearstream Banking Luxembourg" and "Customer Handbook" of Clearstream in effect
at the relevant time shall be applicable to transfers of beneficial interests in
the Regulation S Global Notes that are held by Participants through Euroclear or
Clearstream.
SECTION 2.2 EXECUTION AND AUTHENTICATION
Two Officers shall sign the Notes for the Company by manual or
facsimile signature. In the case of Definitive Notes, such signatures may be
imprinted or otherwise reproduced on such Notes. If an Officer whose signature
is on a Note no longer holds that office at the time a Note is authenticated,
the Note shall nevertheless be valid. A Note shall not be valid until
authenticated by the manual signature of the Trustee. The signature shall be
conclusive evidence that the Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by an Officer (an
"Authentication Order"), authenticate Notes for issuance up to the aggregate
principal amount stated in such Authentication Order; provided that Notes
authenticated for issuance on the Issue Date shall not exceed $175,000,000 in
aggregate principal amount. The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Notes. An authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with
Holders or an Affiliate of the Company.
SECTION 2.3 REGISTRAR, PAYING AGENT AND DEPOSITARY
The Company shall maintain an office or agency in the Borough
of Manhattan, The City of New York, where Notes may be presented for
registration of transfer or for exchange ("Registrar") and an office or agency
where Notes may be presented for payment ("Paying Agent"). The Registrar shall
keep a register of the Notes and of their transfer and exchange. The Company may
appoint one or more co-registrars and one or more additional paying agents. The
term "Registrar" includes any co-registrar and the term "Paying Agent" includes
any additional paying agent. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company shall notify the Trustee in
writing of the name and address of any Agent not a party to this Indenture. If
the Company fails to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may
act as Paying Agent or Registrar. The Company initially appoints The Depository
Trust Company ("DTC") to act as Depositary with respect to the Global Notes. The
Company initially appoints the Trustee to act as the Registrar and Paying Agent
and to act as Notes Custodian with respect to the Global Notes.
25
SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal, premium or Liquidated Damages, if any, or interest on the
Notes, and shall notify the Trustee of any default by the Company in making any
such payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent. Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Notes.
SECTION 2.5 HOLDER LISTS
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA ss. 312(a). If the
Trustee is not the Registrar, the Company shall furnish, or shall cause the
Registrar (if other than the Company) to furnish, to the Trustee at least seven
Business Days before each Interest Payment Date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA ss. 312(a).
SECTION 2.6 TRANSFER AND EXCHANGE
(a) Transfer and Exchange of Global Notes. A Global Note may not
be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes
shall be exchanged by the Company for Definitive Notes if (i) the Company
delivers to the Trustee notice from the Depositary that (x) the Depositary is
unwilling or unable to continue to act as Depositary for the Global Notes or (y)
the Depositary is no longer a clearing agency registered under the Exchange Act,
and in either case, the Company thereupon fails to appoint a successor
Depositary within 90 days, (ii) the Company in its sole discretion determines
that the Global Notes (in whole but not in part) should be exchanged for
Definitive Notes and delivers a written notice to such effect to the Trustee or
(iii) upon request of the Trustee or Holders of a majority of the aggregate
principal amount of outstanding Notes if there shall have occurred and be
continuing a Default or Event of Default with respect to the Notes; provided
that in no event shall the Reg S Temporary Global Note be exchanged by the
Company for Definitive Notes prior to (x) the expiration of the Distribution
Compliance Period and (y) the receipt by the Registrar of any certificate
identified by the Company and its counsel to be required pursuant to Rule 903 or
Rule 904 under the Securities Act. Upon the occurrence of any of the preceding
events in (i), (ii) or (iii) above, Definitive Notes shall be issued in such
names as the Depositary shall instruct the Trustee. Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.7 and 2.10
hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a
Global Note or any portion thereof, pursuant to this Section 2.6 or Section 2.7
or 2.10 hereof, shall be authenticated and delivered in the form of, and shall
be, a Global Note. A Global Note may not be exchanged for another Note other
than as provided in this Section 2.6(a); however, beneficial interests in a
26
Global Note may be transferred and exchanged as provided in Section 2.6(b), (c)
or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions
of this Indenture and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes shall be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Transfers of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global
Note. Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in the
same Restricted Global Note in accordance with the transfer restrictions set
forth in the Private Placement Legend; provided, however, that prior to the
expiration of the Distribution Compliance Period, transfers of beneficial
interests in the Reg S Temporary Global Note may not be made to a U.S. Person or
for the account or benefit of a U.S. Person (other than an Initial Purchaser).
Beneficial interests in any Unrestricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be required to
be delivered to the Registrar to effect the transfers described in this Section
2.6(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial
Interests in Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.6(b)(i) above, the
transferor of such beneficial interest must deliver to the Registrar either (A)
(1) an order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the Depositary
to credit or cause to be credited a beneficial interest in another Global Note
in an amount equal to the beneficial interest to be transferred or exchanged,
and (2) instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited with
such increase; or (B) (1) an order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable Procedures directing
the Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged, and (2) instructions given
by the Depositary to the Registrar containing information regarding the Person
in whose name such Definitive Note shall be registered to effect the transfer or
exchange referred to in (B)(1) above; provided, that in no event shall
Definitive Notes be issued upon the transfer or exchange of beneficial interests
in the Reg S Temporary Global Note prior to (x) the expiration of the
Distribution Compliance Period and (y) the receipt by the Registrar of any
certificates identified by the Company or its counsel to be required pursuant to
Rule 903 and Rule 904 under the Securities Act. Upon consummation of an Exchange
Offer by the Company in accordance with Section 2.6(f) hereof, the requirements
of this Section 2.6(b)(ii) shall be deemed to have been satisfied upon receipt
by the Registrar of the instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in the Restricted Global
Notes. Upon satisfaction of all of the requirements for transfer or exchange
of beneficial interests in Global Notes contained in this Indenture and the
Notes or otherwise applicable under the Securities Act, the Trustee shall adjust
the principal amount of the relevant Global Note(s) pursuant to Section 2.6(h)
hereof.
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(iii) Transfer of Beneficial Interests to Another
Restricted Global Note. A beneficial interest in any Restricted Global Note may
be transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer complies
with the requirements of Section 2.6(b)(ii) above and the Registrar receives the
following:
(A) if the transferee shall take delivery in
the form of a beneficial interest in the 144A Global Note, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof; and
(B) if the transferee shall take delivery in the
form of a beneficial interest in the Reg S Temporary Global Note or the
Reg S Permanent Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the Unrestricted Global
Note. A beneficial interest in any Restricted Global Note may be exchanged by
any Holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note if the exchange or transfer complies
with the requirements of Section 2.6(b)(ii) above and:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration Rights
Agreement and Section 2.6(f) hereof, and the holder of the beneficial
interest to be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a Broker-Dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Registrar receives the following: (1) if
the holder of such beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for a beneficial interest
in an Unrestricted Global Note, a certificate from such holder in the
form of Exhibit C hereto, including the certifications in item (1)(a)
thereof; or (2) if the Holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial interest
to a Person who shall take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note, a certificate from such holder
in the form of Exhibit B hereto, including the certifications in item
(4) thereof; and, in each such case set forth in this subparagraph (D),
an Opinion of Counsel in form, and from legal counsel, reasonably
acceptable to the Registrar and the Company to the effect that such
exchange or transfer is in compliance with the Securities Act and that
the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance
with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B)
or (D) above at a time when an Unrestricted Global Note has not yet been issued,
28
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.2 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above. Beneficial interests in an Unrestricted Global
Note cannot be exchanged for, or transferred to Persons who take delivery
thereof in the form of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
(i) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any Holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:
(A) if the Holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for
a Restricted Definitive Note, a certificate from such holder in the form
of Exhibit C hereto, including the certifications in item (2)(a)
thereof;
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in
item (1) thereof;
(C) if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such beneficial interest is being
transferred pursuant to an exemption from the registration requirements
of the Securities Act in accordance with Rule 144, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in
item (3) (a) thereof;
(E) if such beneficial interest is being transferred
to an Institutional Accredited Investor in reliance on an exemption from
the registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable;
(F) if such beneficial interest is being transferred
to the Company or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item (3)
(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Restricted Global Note to be reduced accordingly pursuant to Section 2.6(h)
29
hereof, and the Company shall execute and, upon receipt of an Authentication
Order pursuant to Section 2.2 hereof, the Trustee shall authenticate and deliver
to the Person designated in the instructions a Restricted Definitive Note in the
appropriate principal amount. Any Restricted Definitive Note issued in exchange
for a beneficial interest in a Restricted Global Note pursuant to this Section
2.6(c) shall be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial interest shall
instruct the Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Trustee shall deliver such Restricted
Definitive Notes to the Persons in whose names such Notes are so registered. Any
Restricted Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.6(c)(i) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer contained
therein.
(ii) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A Holder of a beneficial interest in a Restricted
Global Note may exchange such beneficial interest for an Unrestricted Definitive
Note or may transfer such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights Agreement
and Section 2.6(f) hereof, and the holder of such beneficial interest,
in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is
not (1) a Broker-Dealer, (2) a Person participating in the distribution
of the Exchange Notes or (3) a Person who is an affiliate (as defined in
Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Registrar receives the following: (1) if the
holder of such beneficial interest in a Restricted Global Note proposes
to exchange such beneficial interest for a Definitive Note that does not
bear the Private Placement Legend, a certificate from such holder in the
form of Exhibit C hereto, including the certifications in item (1)(b)
thereof; or (2) if the Holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial interest to
a Person who shall take delivery thereof in the form of a Definitive
Note that does not bear the Private Placement Legend, a certificate from
such Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof; and, in each such case set forth in
this subparagraph (D), an Opinion of Counsel in form, and from legal
counsel, reasonably acceptable to the Registrar and the Company to the
effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(iii) Beneficial Interests in Unrestricted Global Notes
to Unrestricted Definitive Notes. If any Holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest for an
Unrestricted Definitive Note or to transfer such beneficial interest to a Person
30
who takes delivery thereof in the form of an Unrestricted Definitive Note, then,
upon satisfaction of the conditions set forth in Section 2.6(b)(ii) hereof, the
Trustee shall cause the aggregate principal amount of the applicable
Unrestricted Global Note to be reduced accordingly pursuant to Section 2.6(h)
hereof, and the Company shall execute and, upon receipt of an Authentication
Order pursuant to Section 2.2 hereof, the Trustee shall authenticate and
deliver to the Person designated in the instructions an Unrestricted Definitive
Note in the appropriate principal amount. Any Unrestricted Definitive Note
issued in exchange for a beneficial interest pursuant to this Section 2.6(c)
(iii) shall be registered in such name or names and in such authorized
denomination or denominations as the Holder of such beneficial interest shall
instruct the Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Trustee shall deliver such Unrestricted
Definitive Notes to the Persons in whose names such Notes are so registered. Any
Unrestricted Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.6(c)(iii) shall not bear the Private Placement
Legend.
(iv) Transfer or Exchange of Reg S Temporary Global Notes.
Notwithstanding the other provisions of this Section 2.6, a beneficial interest
in the Reg S Temporary Global Note may not be (A) exchanged for a Definitive
Note prior to (x) the expiration of the Distribution Compliance Period (unless
such exchange is effected by the Company, does not require an investment
decision on the part of the Holder thereof and does not violate the provisions
of Regulation S) and (y) the receipt by the Registrar of any certificates
identified by the Company or its counsel to be required pursuant to Rule 903(c)
(3)(B) under the Securities Act or (B) transferred to a Person who takes
delivery thereof in the form of a Definitive Note prior to the events set forth
in clause (A) above or unless the transfer is pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 903 or Rule 904.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(i) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes
to exchange such Note for a beneficial interest in a Restricted Global Note or
to transfer such Restricted Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted Global Note, then,
upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted
Global Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in
item (1) thereof; or
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above,
31
the appropriate Restricted Global Note, in the case of clause (B) above, the
144A Global Note, and in the case of clause (C) above, the Regulation S Global
Note.
(ii) Restricted Definitive Notes to Beneficial Interests
in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note or
transfer such Restricted Definitive Note to a Person who takes delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights Agreement
and Section 2.6(f) hereof, and the Holder, in the case of an exchange,
or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a Broker-Dealer, (2)
a Person participating in the distribution of the Exchange Notes or (3)
a Person who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) the Registrar receives the following: (1) if the
Holder of such Restricted Definitive Notes proposes to exchange such
Notes for a beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit C hereto, including
the certifications in item (1)(c) thereof; or (2) if the Holder of such
Restricted Definitive Notes proposes to transfer such Notes to a Person
who shall take delivery thereof in the form of a beneficial interest in
the Unrestricted Global Note, a certificate from such Holder in the form
of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), an Opinion of
Counsel in form, and from legal counsel, reasonably acceptable to the
Registrar and the Company to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.6(d)(ii), the Trustee shall cancel the Restricted Definitive
Notes so transferred or exchanged and increase or cause to be increased
the aggregate principal amount of the Unrestricted Global Note.
iii) Unrestricted Definitive Notes to Beneficial
Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive
Note may exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Definitive Notes to a Person who takes delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note at any time.
Upon receipt of a request for such an exchange or transfer, the Trustee shall
cancel the applicable Unrestricted Definitive Note and increase or cause to be
increased the aggregate principal amount of one of the Unrestricted Global
Notes. If any such exchange or transfer from a Definitive Note to a beneficial
interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or (iii) of this
Section 2.6(d) at a time when an Unrestricted Global Note has not yet been
ssued, the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.2 hereof, the Trustee shall authenticate one or more
32
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive
Notes. Upon request by a Holder of Definitive Notes and such Holder's compliance
with the provisions of this Section 2.6(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.6(e).
(i) Restricted Definitive Notes to Restricted Definitive
Notes. Any Restricted Definitive Note may be transferred to and registered in
the name of Persons who take delivery thereof in the form of a Restricted
Definitive Note if the Registrar receives the following:
(A) if the transfer shall be made pursuant to Rule
144A, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (1) thereof;
(B) if the transfer shall be made pursuant to Rule
903 or Rule 904 under the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transfer shall be made pursuant to any
other exemption from the registration requirements of the Securities
Act, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications, certificates and Opinion
of Counsel required by item (3) thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted
Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a Person or
Persons who take delivery thereof in the form of an Unrestricted Definitive
Note if:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration Rights
Agreement and Section 2.6(f) hereof, and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a Broker-Dealer,
(2) a Person participating in the distribution of the Exchange Notes or
(3) a Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration Rights
Agreement;
33
(C) any such transfer is effected by a Broker-
Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following: (1) if
the Holder of such Restricted Definitive Notes proposes to exchange
such Notes for an Unrestricted Definitive Note, a certificate from such
Holder in the form of Exhibit C hereto, including the certifications in
item (1)(d) thereof; or (2) if the Holder of such Restricted Definitive
Notes proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive Note, a
certificate from such Holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof; and, in each such case set forth
in this subparagraph (D), an Opinion of Counsel in form, and from legal
counsel, reasonably acceptable to the Registrar and the Company to the
effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted
Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note. Upon receipt of a request to register such a transfer, the
Registrar shall register the Unrestricted Definitive Notes pursuant to the
instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.2 hereof
and an Opinion of Counsel for the Company as to certain matters discussed in
this Section 2.6(f), the Trustee shall authenticate (i) one or more Unrestricted
Global Notes in an aggregate principal amount equal to the sum of (A) the
principal amount of the beneficial interests in the Restricted Global Notes
tendered for acceptance by Persons that certify in the applicable Letters of
Transmittal that (x) they are not Broker-Dealers, (y) they are not participating
in a distribution of the Exchange Notes and (z) they are not affiliates (as
defined in Rule 144) of the Company, and accepted for exchange in the Exchange
Offer; and (B) the principal amount of Definitive Notes exchanged or transferred
for beneficial interests in Unrestricted Global Notes in connection with the
Exchange Offer pursuant to Section 2.6(d)(ii) hereof; and (ii) Definitive Notes
in an aggregate principal amount equal to the principal amount of the Restricted
Definitive Notes accepted for exchange in the Exchange Offer (other than
Definitive Notes described in clause (i)(B) immediately above). Concurrently
with the issuance of such Notes, the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and
the Company shall execute and, upon receipt of an Authentication Order pursuant
to Section 2.2 hereof, the Trustee shall authenticate and deliver to the Persons
designated by the Holders of Definitive Notes so accepted Definitive Notes in
the appropriate principal amount.
The Opinion of Counsel for the Company referenced above shall
state, in form and substance reasonably satisfactory to the Trustee, that:
(1) the issuance and sale of the Exchange Notes by the Company
have been duly authorized and, when executed and authenticated in
accordance with the provisions of this Indenture and delivered in
exchange for Series A Notes in accordance with this Indenture and the
Exchange Offer, shall be entitled to the benefits of this Indenture and
shall be valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms except as the
enforceability thereof may be limited by (x) bankruptcy, fraudulent
transfer, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and (y) equitable principles of
general applicability (regardless of whether enforceability is
considered at equity or in law); and
34
(2) when the Exchange Notes are executed and authenticated in
accordance with the provisions of this Indenture and delivered in
exchange for Series A Notes in accordance with this Indenture and the
Exchange Offer, the Parent Guarantee of the Exchange Notes shall be
valid and binding obligations of Parent, enforceable against Parent in
accordance with its terms except as the enforceability thereof may be
limited by (x) bankruptcy, fraudulent transfer, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and (y) equitable principles of general applicability
(regardless of whether enforceability is considered at equity or in
law).
(g) Legends. The following legends shall appear on the face of
all Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below,
each Global Note and each Definitive Note (and all Notes issued in
exchange therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933
(THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY
NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A THEREUNDER."
"THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE
144 THEREUNDER (IF AVAILABLE), (IV) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION
D UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING THE TRANSFER OF THIS NOTE AND, IF SUCH TRANSFER IS
IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN
$250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, OR (V) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH
OF CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND
35
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE."
(B) Notwithstanding the foregoing, any Global Note
or Definitive Note issued pursuant to subparagraphs (b)(iv), (c)(ii),
(c) (iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this Section
2.6 (and all Notes issued in exchange therefor or substitution thereof)
shall not bear the Private Placement Legend.
(ii) Global Note Legend. To the extent required by
the Depositary, each Global Note shall bear legends in substantially the
following forms:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.6 OF THE
INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN
PART PURSUANT TO SECTION 2.6(a) OF THE INDENTURE, (III) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY."
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY
THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (00 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("DTC"), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN."
(iii) Reg S Temporary Global Note Legend. To the extent
required by the Depositary, each Reg S Temporary Global Note shall bear a legend
in substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE
NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER
THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY
36
GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE CASH PAYMENTS OF INTEREST
DURING THE PERIOD WHICH SUCH HOLDER HOLDS THIS NOTE. NOTHING IN THIS
LEGEND SHALL BE DEEMED TO PREVENT INTEREST FROM ACCRUING ON THIS NOTE."
(h) Cancellation and/or Adjustment of Global Notes. At such time
as all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Note shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who shall take delivery thereof
in the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement may be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who shall take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement may be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes fron receipt of an Authentication Order.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Sections 2.10,
3.6, 4.13 and 4.14 hereof).
(iii) The Registrar shall not be required to register
the transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon
any registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of the Company, evidencing the same Indebtedness,
and entitled to the same benefits under this Indenture, as the Global Notes or
Definitive Notes surrendered upon such registration of transfer or exchange.
(v) Neither the Registrar nor the Company shall be
required (A) to issue, to register the transfer of or to exchange any Notes
during a period beginning at the opening of business 15 days before the day of
any selection of Notes for redemption under Section 3.2 hereof and ending at the
close of business on the day of selection, (B) to register the transfer of or to
exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part or (C) to register the
transfer of or to exchange a Note between a Record Date and the next succeeding
Interest Payment Date.
37
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem and treat
the Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on such
Notes and for all other purposes, and none of the Trustee, any Agent or the
Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.2 hereof.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this Section 2.6
to effect a registration of transfer or exchange may be submitted by facsimile.
Notwithstanding anything herein to the contrary, as to any
certifications and certificates delivered to the Registrar pursuant to this
Section 2.6, the Registrar's duties shall be limited to confirming that any such
certifications and certificates delivered to it are in the form of Exhibits A,
B, C and D attached hereto. The Registrar shall not be responsible for
confirming the truth or accuracy of representations made in any such
certifications or certificates.
SECTION 2.7 REPLACEMENT NOTES
If any mutilated Note is surrendered to the Trustee or the
Company and the Trustee and the Company receive evidence (which evidence may be
from the Trustee) to their satisfaction of the destruction, loss or theft of any
Note, the Company shall issue and the Trustee, upon receipt of an Authentication
Order, shall authenticate a replacement Note if the Trustee's requirements are
met. If required by the Trustee or the Company, an indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the Trustee and the
Company to protect the Company, the Trustee, any Agent and any authenticating
agent from any loss that any of them may suffer if a Note is replaced. The
Company may charge for its expenses in replacing a Note. Every replacement Note
is an additional obligation of the Company and shall be entitled to all of the
benefits of this Indenture equally and proportionately with all other Notes duly
issued hereunder.
SECTION 2.8 OUTSTANDING NOTES
The Notes outstanding at any time are all the Notes
authenticated by the Trustee (including any Note represented by a Global Note)
except for those cancelled by it or at its direction, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section 2.8 as not outstanding. Except as set forth in Section 2.9 hereof, a
Note does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note. If a Note is replaced pursuant to Section 2.7 hereof,
such Note, together with the Parent Guarantee of that particular Note endorsed
thereon, ceases to be outstanding unless the Trustee receives proof satisfactory
to it that the replaced Note is held by a bona fide purchaser. If the principal
amount of any Note is considered paid under Section 4.1 hereof, it ceases to be
outstanding and interest on it ceases to accrue. If the Paying Agent (other than
the Company, a Subsidiary or an Affiliate of any thereof) holds, on a redemption
date or the maturity date, money sufficient to pay Notes payable on that date,
then on and after that date such Notes shall be deemed to be no longer
outstanding and shall cease to accrue interest.
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SECTION 2.9 TREASURY NOTES
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company, shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee knows are so owned
shall be so disregarded.
SECTION 2.10 TEMPORARY NOTES
Until certificates representing Notes are ready for delivery,
the Company may prepare and the Trustee, upon receipt of an Authentication
Order, shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of Definitive Notes but may have variations that the
Company considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall prepare
and the Trustee shall authenticate Definitive Notes in exchange for temporary
Notes. Holders of temporary Notes shall be entitled to all of the benefits of
this Indenture.
SECTION 2.11 CANCELLATION
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent
(other than the Company or an Affiliate of the Company), and no one else shall
cancel all Notes surrendered for registration of transfer, exchange, payment,
replacement or cancellation and shall dispose of such cancelled Notes in
accordance with its customary procedures (subject to the record retention
requirement of the Exchange Act). Certification of the destruction of all
cancelled Notes shall be delivered to the Company. The Company may not issue new
Notes to replace Notes that it has paid or that have been delivered to the
Trustee for cancellation.
SECTION 2.12 DEFAULTED INTEREST
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date plus, to the
extent lawful, any interest payable on the defaulted interest at the rate and in
the manner provided in Section 4.1 hereof and in the Note (herein called
"Defaulted Interest") shall forthwith cease to be payable to the registered
holder on the relevant Record Date, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee and the 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 Company shall
deposit with the Paying Agent an amount of cash equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements reasonably satisfactory to the Paying Agent for
such deposit prior to the date of the proposed payment, such cash when
deposited to be held in trust for the benefit of the Persons entitled
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to such Defaulted Interest as provided in this clause (1). Thereupon
the Paying Agent shall fix a "Special Record Date" for the payment of
such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Paying Agent of the notice
of the proposed payment. The Paying Agent shall promptly notify the
Company and the Trustee of such Special Record Date and, in the name
and at the expense of the Company, 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 its
address as it appears in the Note register maintained by the Registrar
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 mailed as aforesaid, 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 Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Trustee and the Paying Agent of the proposed payment
pursuant to this clause, such manner shall be deemed practicable by the
Trustee and the Paying Agent.
Subject to the foregoing provisions of this Section 2.12, each
Note delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Note.
SECTION 2.13 CUSIP NUMBERS
The Company in issuing the Notes may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company shall promptly notify the Trustee of any
change in the "CUSIP" numbers.
SECTION 2.14 ISSUANCE OF ADDITIONAL NOTES
The Company may, subject to Section 4.7 hereof and applicable
law, issue Additional Notes under this Indenture. The Notes issued on the Issue
Date and any additional Notes subsequently issued shall be treated as a single
class for all purposes under this Indenture.
ARTICLE III
REDEMPTION
SECTION 3.1 NOTICES TO TRUSTEE
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.7 hereof, it shall furnish to the Trustee, at
40
least 30 days (unless a shorter period is acceptable to the Trustee) but not
more than 60 days (unless a longer period is acceptable to the Trustee) before a
redemption date, an Officers' Certificate setting forth (i) the clause of this
Indenture pursuant to which the redemption shall occur, (ii) the redemption
date, (iii) the principal amount of Notes to be redeemed and (iv) the redemption
price.
SECTION 3.2 SELECTION OF NOTES TO BE REDEEMED
If less than all of the Notes are to be redeemed at any time,
the Trustee shall select the Notes or portions thereof to be redeemed among the
Holders of the Notes in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are listed or, if the
Notes are not so listed, on a pro rata basis, by lot or in accordance with any
other method the Trustee considers fair and appropriate. In the event of partial
redemption by lot, the particular Notes to be redeemed shall be selected, unless
otherwise provided herein, not less than 30 nor more than 60 days prior to the
redemption date by the Trustee from the outstanding Notes not previously called
for redemption.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. Notes and
portions of Notes in denominations of larger than $1,000 selected shall be in
amounts of $1,000 or integral multiples of $1,000; except that if all of the
Notes of a Holder are to be redeemed, the entire outstanding amount of Notes
held by such Holder, even if not an integral multiple of $1,000, shall be
redeemed. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Notes called for redemption also apply to portions of
Notes called for redemption.
SECTION 3.3 NOTICE OF REDEMPTION
Subject to the provisions of Section 3.7 hereof, at least 30
days but not more than 60 days before a Redemption Date, the Company shall mail
or cause to be mailed, by first class mail, a notice of redemption to each
Holder whose Notes are to be redeemed at its registered address as then shown
upon the registry books of the Registrar.
The notice shall identify the Notes to be redeemed (including
the CUSIP number) and shall state:
(a) the Redemption Date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, on or after the
Redemption Date upon surrender of such Note, a new Note or Notes in principal
amount equal to the unredeemed portion shall be issued upon cancellation of the
original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and after
the Redemption Date;
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(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on the
Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
Redemption Date (unless a shorter period shall be acceptable to the Trustee), an
Officers' Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in the preceding
paragraph.
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION
Once notice of redemption is mailed in accordance with Section
3.3 hereof, Notes called for redemption become irrevocably due and payable on
the Redemption Date at the redemption price. A notice of redemption may not be
conditional.
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE
On the Business Day immediately prior to the Redemption Date,
the Company shall deposit with the Trustee or with the Paying Agent immediately
available funds sufficient to pay the redemption price of and accrued and unpaid
interest (and Liquidated Damages, if any) on all Notes to be redeemed on that
date. The Trustee or the Paying Agent shall promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess of
the amounts necessary to pay the redemption price of, and accrued and unpaid
interest (and Liquidated Damages, if any) on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the Redemption Date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption and, except as
otherwise provided herein, such Notes shall cease from and after the Redemption
Date to be entitled to any benefit under this Indenture, and the Holders thereof
shall have no right in respect of such Notes except the right to receive the
redemption price thereof and unpaid interest to the Redemption Date. If a Note
is redeemed on or after an interest Record Date but on or prior to the related
Interest Payment Date, then any accrued and unpaid interest (and Liquidated
Damages, if any) due shall be paid on the Redemption Date to the Person in whose
name such Note was registered at the close of business on such Record Date. If
any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the Redemption
Date until such principal is paid, and to the extent lawful on any interest not
paid on such unpaid principal, in each case at the rate provided in the Notes
and in Section 4.1 hereof.
SECTION 3.6 NOTES REDEEMED IN PART
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon receipt of an Authentication Order, the Trustee shall
authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
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SECTION 3.7 OPTIONAL REDEMPTION
(a) Except as set forth in this Section 3.7 and Section 5 of the
Note, the Company shall not have the option to redeem the Notes pursuant to this
Section 3.7 and such Section 5 prior to October 1, 2008. The Notes shall be
redeemable for cash at the option of the Company, in whole or in part, at any
time on or after October 1, 2008, upon not less than 30 days nor more than 60
days prior notice mailed by first class mail to each Holder at its last
registered address, at the following redemption prices (expressed as percentages
of the principal amount) if redeemed during the 12-month period commencing
October 1 of the years indicated below, in each case (subject to the right of
Holders of record on a Record Date to receive the corresponding interest due
(and the corresponding Liquidated Damages, if any) on the corresponding Interest
Payment Date that is on or prior to such redemption date) together with accrued
and unpaid interest and Liquidated Damages, if any, thereon to the date of
redemption of the Notes (the "Redemption Date"):
Period Percentage
------ ----------
2008.......................................... 105.000%
2009.......................................... 102.500%
2010 and thereafter........................... 100.000%
(b) Notwithstanding the provisions of clause (a) of this Section
3.7, at any time or from time to time on or prior to October 1, 2007, upon one
or more Qualified Equity Offerings for cash, up to 35% of the aggregate
principal amount of the Notes issued pursuant to this Indenture may be redeemed
at the Company's option within 90 days of such Qualified Equity Offering, on not
less than 30 days, but not more than 60 days, notice to each Holder of the Notes
to be redeemed, with cash contributed to the Company from the cash proceeds of
such Qualified Equity Offering, at a redemption price equal to 110% of the
principal amount, together with accrued and unpaid interest and Liquidated
Damages, if any, thereon to the Redemption Date; provided, however, that
immediately following such redemption not less than 65% of the aggregate
principal amount of the Notes originally issued pursuant to this Indenture on
the Issue Date remain outstanding.
(c) Any redemption pursuant to this Section 3.7 shall be made
pursuant to the provisions of Sections 3.1 through 3.6 hereof.
SECTION 3.8 NO MANDATORY REDEMPTION
The Company shall not be required to make mandatory redemption
payments with respect to the Notes (however, the Company is required to offer to
repurchase Notes in accordance with the provisions of Sections 4.13 and 4.14
below). The Notes shall not have the benefit of any sinking fund.
ARTICLE IV
COVENANTS
SECTION 4.1 PAYMENT OF NOTES
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the Company
43
or a Subsidiary thereof, holds as of 12:00 noon Eastern time on the due date
money deposited by the Company in immediately available funds and designated for
and sufficient to pay all principal, premium, if any, and interest then due. The
Company shall pay all Liquidated Damages, if any, in the same manner on the
dates and in the amounts set forth in the Registration Rights Agreement and
herein.
The Company shall pay interest (including Accrued Bankruptcy
Interest in any proceeding under any Bankruptcy Law) on overdue principal at the
then applicable interest rate on the Notes to the extent lawful; it shall pay
interest (including Accrued Bankruptcy Interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated Damages, if
any (without regard to any applicable grace period), at the same rate to the
extent lawful.
SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY
The Company and Parent shall maintain in the Borough of
Manhattan, The City of New York, an office or agency (which may be an office of
the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where
Notes may be surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Company and Parent in respect of the Notes
and this Indenture may be served. The Company and Parent shall give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company and Parent shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office.
The Company and Parent may also from time to time designate
one or more other offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to time rescind such
additional designations; provided that no such designation or rescission shall
in any manner relieve the Company and Parent of their obligation to maintain an
office or agency in the Borough of Manhattan, The City of New York. The Company
and Parent shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
The Company hereby designates the Corporate Trust Office as
one such office or agency of the Company in accordance with Section 2.3 hereof.
SECTION 4.3 COMMISSION REPORTS AND REPORTS TO HOLDERS
Whether or not the Company is subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, so long as any Notes
are outstanding, the Company shall deliver to the Trustee and, to each Holder
and to prospective purchasers of Notes identified to the Company by an Initial
Purchaser, within 5 days after the Company is or would have been (if the Company
were subject to such reporting obligations) required to file such with the
Commission, annual and quarterly financial statements substantially equivalent
to financial statements that would have been included in reports filed with the
Commission, if the Company were subject to the requirements of Section 13 or
15(d) of the Exchange Act, including, with respect to annual information only, a
report thereon by the Company's certified independent public accountants as such
would be required in such reports to the Commission, and, in each case, together
with a management's discussion and analysis of financial condition and results
of operations which would be so required and, unless the Commission shall not
accept such reports, file with the Commission the annual, quarterly and other
reports which it is or would have been required to file with the Commission.
This obligation may be satisfied by Parent delivering and filing its statements
and reports so long as it directly owns all of the Company's Capital Stock and
the Parent Guarantee is in effect.
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SECTION 4.4 COMPLIANCE CERTIFICATE
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, an Officers' Certificate signed by the
principal financial officer, the principal executive officer or principal
accounting officer stating that a review of the activities of the Company and
its Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company and its Subsidiaries have kept, observed, performed and fulfilled their
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to his or her knowledge the Company and its
Subsidiaries are not in default in the performance or observance of any of the
terms, provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred and be continuing, describing all such Defaults or
Events of Default of which he or she may have knowledge and what action the
Company is taking or proposes to take with respect thereto) and that to his or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto. The
Company shall provide the Trustee with timely written notice of any change in
its fiscal year end, which is currently the last Wednesday of the calendar year.
(b) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, within five Business Days of any Officer
becoming aware of any Default or Event of Default, an Officers' Certificate
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.
SECTION 4.5 TAXES
The Company shall pay, and shall cause each of its Subsidiaries
to pay, prior to delinquency, all material taxes, assessments, and governmental
levies except such as are contested in good faith and by appropriate proceedings
or where the failure to effect such payment would not have a material adverse
effect on the ability of the Company and Parent to satisfy their obligations
under the Notes, the Parent Guarantee and this Indenture.
SECTION 4.6 STAY, EXTENSION AND USURY LAWS
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
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SECTION 4.7 LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS AND
DISQUALIFIED CAPITAL STOCK
Except as set forth in this Section 4.7,
(a) the Company shall not and shall not permit any of the
Company's Subsidiaries to, directly or indirectly, issue, assume, guaranty,
incur, become directly or indirectly liable with respect to (including as a
result of an Acquisition), or otherwise become responsible for, contingently or
otherwise (individually and collectively, to "incur" or, as appropriate, an
"incurrence"), any Indebtedness (including Disqualified Capital Stock and
Acquired Indebtedness), other than Permitted Indebtedness.
Notwithstanding the foregoing, if:
(1) no Default or Event of Default shall have occurred and be
continuing at the time of, or would occur after giving effect on a pro
forma basis to, such incurrence of Indebtedness, and
(2) on the date of such incurrence (the "Incurrence Date"), the
Company's Consolidated Coverage Ratio for the Reference Period
immediately preceding the Incurrence Date, after giving effect on a pro
forma basis to such incurrence of such Indebtedness and, to the extent
set forth in the definition of "Consolidated Coverage Ratio," the use of
proceeds thereof, would be at least 2.0 to 1.0 (the "Debt Incurrence
Ratio"),
then the Company may incur such Indebtedness (including Disqualified Capital
Stock and Acquired Indebtedness) and any Wholly Owned Subsidiary may incur
Attributable Indebtedness to the extent specifically permitted under Section
4.17(1)(a)(i) hereof.
(b) The foregoing limitations of Section 4.7(a) hereof shall not
prohibit:
(1) the Company's incurrence or the incurrence by any Subsidiary
of Purchase Money Indebtedness; provided, that;
(i) the aggregate amount of such Indebtedness incurred
pursuant to this Section 4.7(b)(1) (including any Refinancing Indebtedness
issued to retire, defease, refinance, replace or refund such Indebtedness) shall
not exceed $10 million per fiscal year beginning fiscal 2005; and
(ii) such Indebtedness shall not constitute more than
100% of the Company's cost or the cost to such Subsidiary (determined in
accordance with GAAP), as applicable, of the property so purchased, constructed,
improved or leased;
(2) the Company's incurrence or the incurrence by any Subsidiary
of Indebtedness pursuant to the Credit Agreement in an aggregate amount
incurred and outstanding at any time pursuant to this Section 4.7(b)(2)
of up to $420 million, minus the amount of any such Indebtedness (1)
retired with the Net Cash Proceeds from any Asset Sale applied to
permanently reduce the outstanding amounts or the commitments with
respect to such Indebtedness pursuant to Section 4.13 hereof or (2)
assumed by a transferee in an Asset Sale;
46
(3) the Company's incurrence or the incurrence by any Subsidiary
of Indebtedness represented by Capitalized Lease Obligations in an
aggregate amount incurred and outstanding at any time pursuant to this
Section 4.7(b)(3) (plus any Refinancing Indebtedness incurred to
retire, defease, refinance, replace or refund such Indebtedness) of up
to $30 million; provided, that such Indebtedness shall not constitute
more than 100% of the Company's cost or the cost to such Subsidiary
(determined in accordance with GAAP), as applicable, of the property
leased pursuant thereto; or
(4) if no Event of Default shall have occurred and be
continuing, the incurrence by the Company of Indebtedness in an
aggregate amount incurred and outstanding at any time pursuant to this
Section 4.7(b)(4) (plus any Refinancing Indebtedness incurred to retire,
defease, refinance, replace or refund such Indebtedness) of up to $25
million.
Indebtedness (including Disqualified Capital Stock) of any
Person which is outstanding at the time such Person becomes one of the Company's
Subsidiaries (including upon designation of any subsidiary or other Person as a
Subsidiary) or is merged with or into or consolidated with the Company or one of
the Company's Subsidiaries shall be deemed to have been incurred at the time
such Person becomes or is designated one of the Company's Subsidiaries or is
merged with or into or consolidated with the Company or one of the Company's
Subsidiaries, as applicable.
Notwithstanding any other provision of this Section 4.7, but
only to avoid duplication, a guarantee of the Company's Indebtedness incurred in
accordance with the terms of this Indenture (other than Indebtedness incurred
pursuant to Section 4.7(b)(1) hereof) issued at the time such Indebtedness was
incurred or if later at the time the guarantor thereof became one of the
Company's Subsidiaries shall not constitute a separate incurrence, or amount
outstanding, of Indebtedness. Upon each incurrence the Company may designate
pursuant to which provision of this Section 4.7 such Indebtedness is being
incurred and the Company may subdivide an amount of Indebtedness and designate
more than one provision pursuant to which such amount of Indebtedness is being
incurred and such Indebtedness shall not be deemed to have been incurred or
outstanding under any other provision of this Section 4.7, except as stated
otherwise in this Section 4.7.
SECTION 4.8 LIMITATION ON LIENS
The Company shall not and shall not permit any of the
Company's Subsidiaries to, create, incur, assume or suffer to exist any Lien of
any kind, other than Permitted Liens, upon any of their respective assets now
owned or acquired on or after the date of this Indenture or upon any income or
profits therefrom securing any of the Company's, Parent's or any of the
Subsidiaries' Indebtedness, unless the Company provides, and causes the
Company's Subsidiaries to provide, concurrently therewith, that the Notes are
equally and ratably so secured; provided that if such Indebtedness is
Subordinated Indebtedness, the Lien securing such Subordinated Indebtedness
shall be contractually subordinate and junior to the Lien securing the Notes
with the same relative priority as such Subordinated Indebtedness shall have
with respect to the Notes.
SECTION 4.9 LIMITATION ON RESTRICTED PAYMENTS
(a) The Company shall not and shall not permit any of the
Company's Subsidiaries to, directly or indirectly, make any Restricted Payment
if, after giving effect to such Restricted Payment on a pro forma basis:
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(1) a Default or an Event of Default shall have occurred and be
continuing;
(2) the Company is not permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Debt Incurrence Ratio in
Section 4.7(a)(2) hereof; or
(3) the aggregate amount of all Restricted Payments made by the
Company and the Company's Subsidiaries, including after giving effect to
such proposed Restricted Payment, on and after the Issue Date, would
exceed, without duplication, the sum of:
(A) 50% of the Company's aggregate Consolidated Net
Income for the period (taken as one accounting period), commencing on
the first day of the first full fiscal quarter commencing after the
Issue Date, to and including the last day of the fiscal quarter ended
immediately prior to the date of each such calculation for which
internal consolidated financial statements are required to be delivered
to the Trustee or, if sooner, filed with the Commission (or, in the
event Consolidated Net Income for such period is a deficit, then minus
100% of such deficit), plus
(B) the aggregate Net Cash Proceeds received by the
Company from a Capital Contribution or from the sale of the Company's
Qualified Capital Stock (other than (i) to one of the Company's
Subsidiaries and (ii) to the extent applied in connection with a
Qualified Exchange or a Permitted Investment pursuant to clause (f) of
the definition of "Permitted Investment" or, to avoid duplication,
otherwise given credit for in any provision of Section 4.9(b) or (c)
hereof), after the Issue Date, plus
(C) except in each case, in order to avoid duplication,
to the extent any such payment or proceeds have been included in the
calculation of Consolidated Net Income, an amount equal to the net
reduction in Investments (other than returns of or from Permitted
Investments) in any Person resulting from cash distributions on or cash
repayments of any Investments, including payments of interest on
Indebtedness, dividends, repayments of loans or advances, or other
distributions or other transfers of assets, in each case to the Company
or any Subsidiary or from the Net Cash Proceeds from the sale of any
such Investment or from redesignations of Unrestricted Subsidiaries as
Subsidiaries (valued in each case as provided in the definition of
"Investments"), not to exceed, in each case, the amount of Investments
previously made by the Company or any Subsidiary in such Person,
including, if applicable, such Unrestricted Subsidiary, less the cost of
disposition.
(b) Section 4.9(a)(2) and (3) above, however, shall not
prohibit:
(1) Permitted Payments to Parent;
(2) payments to Parent to permit Parent, and which are used by
Parent substantially concurrently therewith, to redeem Equity Interests
of Parent, or payments to redeem Equity Interests of Parent, or payments
to redeem Equity Interests of the Company, in each case, held by
officers, directors or employees (or their transferees, estates or
beneficiaries under their estates), upon the death, disability,
retirement, severance or termination of employment or service in an
aggregate amount to all such officers, directors or employees (or their
transferees, estates or beneficiaries under their estates) not to
exceed $5 million in the aggregate on and after the Issue Date,
(c) and Section 4.9(a)(1), (2) and (3) above shall not prohibit:
48
(1) any dividend, distribution or other payments by any of the
Company's Subsidiaries on its Equity Interests that is paid pro rata to
all holders of such Equity Interests;
(2) a Qualified Exchange; or
(3) the payment of any dividend on Qualified Capital Stock
within 60 days after the date of its declaration if such dividend could
have been made on the date of such declaration in compliance with the
foregoing provisions.
The full amount of any Restricted Payment made pursuant to
Section 4.9(b)(2), Section 4.9(c)(1) and Section 4.9(c)(3) (but not pursuant to
Section 4.9(b)(1) and Section 4.9(c)(2)), however, shall be counted as
Restricted Payments made for purposes of the calculation of the aggregate amount
of Restricted Payments available to be made referred to in Section 4.9(a)(3)
hereof.
(d) For purposes of this Section 4.9, the amount of any
Restricted Payment made or returned, if other than in cash, shall be the fair
market value thereof (as determined in the good faith reasonable judgment of the
Board of Directors for any Restricted Payment in an amount in excess of $5
million), unless stated otherwise, at the time made or returned, as applicable.
Additionally, for any Restricted Payment in an amount in excess of $5 million,
within 5 days of such Restricted Payment, the Company shall deliver an Officers'
Certificate to the Trustee describing in reasonable detail the nature of such
Restricted Payment, stating the amount of such Restricted Payment, stating in
reasonable detail the provisions of this Indenture pursuant to which such
Restricted Payment was made and certifying that such Restricted Payment was made
in compliance with the terms of this Indenture.
SECTION 4.10 LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES
The Company shall not and shall not permit any of the
Company's Subsidiaries to, directly or indirectly, create, assume or suffer to
exist any consensual restriction on the ability of any of the Company's
Subsidiaries to pay dividends or make other distributions to or on behalf of, or
to pay any obligation to or on behalf of, or otherwise to transfer assets or
property to or on behalf of, or make or pay loans or advances to or on behalf
of, the Company or any of the Company's Subsidiaries, except:
(1) restrictions imposed by the Notes or this Indenture or by
the Company's other Indebtedness ranking pari passu with the Notes;
provided, that such restrictions are no more restrictive taken as a
whole than those imposed by this Indenture and the Notes;
(2) restrictions imposed by applicable law;
(3) existing restrictions under Existing Indebtedness;
(4) restrictions under any Acquired Indebtedness not incurred in
violation of this Indenture or under any agreement (including any Equity
Interest) relating to any property, asset, or business acquired by the
Company or any of the Company's Subsidiaries, which restrictions in
each case existed at the time of acquisition, were not put in place in
connection with or in anticipation of such acquisition and are not
49
applicable to any Person, other than the Person acquired, or to any
property, asset or business, other than the property, assets and
business so acquired;
(5) any restriction imposed by Indebtedness incurred under the
Credit Agreement pursuant to Section 4.7(b)(2) hereof; provided, that
such restrictions are no more restrictive taken as a whole than those
imposed by the Credit Agreement as of the Issue Date;
(6) restrictions solely with respect to any of the Company's
Subsidiaries imposed pursuant to a binding agreement which has been
entered into for the sale or disposition of all or substantially all of
the Equity Interests or assets of such Subsidiary; provided, that such
restrictions apply solely to the Equity Interests or assets of such
Subsidiary which are being sold;
(7) restrictions on transfer contained in Purchase Money
Indebtedness incurred pursuant to Section 4.7(b)(1); provided, that such
restrictions relate only to the transfer of the property acquired with
the proceeds of such Purchase Money Indebtedness;
(8) restrictions on transfer contained in Capitalized Lease
Obligations incurred as permitted pursuant to Section 4.7(b)(3);
provided, that such restrictions relate only to the transfer of the
property leased with the proceeds of such Capitalized Lease Obligations,
and
(9) in connection with and pursuant to permitted Refinancings,
replacements of restrictions imposed pursuant to clauses (1), (3), (4),
(7), (8) or (9) of this Section 4.10 that are not more restrictive taken
as a whole than those being replaced and do not apply to any other
Person or assets than those covered by the restrictions in the
Indebtedness so refinanced.
Notwithstanding the foregoing, (a) customary provisions
restricting subletting or assignment of any lease entered into in the ordinary
course of business, consistent with industry practice shall be permitted with
respect to such lease and (b) any asset subject to a Lien which is not
prohibited to exist with respect to such asset pursuant to the terms of this
Indenture may be subject to customary restrictions on the transfer or
disposition thereof pursuant to such Lien.
SECTION 4.11 LIMITATION ON LINES OF BUSINESS
Neither the Company nor any of the Company's Subsidiaries
shall directly or indirectly engage to any substantial extent in any line or
lines of business activity other than that which, in the reasonable good faith
judgment of the Board of Directors, is a Related Business.
SECTION 4.12 LIMITATION ON TRANSACTIONS WITH AFFILIATES
On or after the Issue Date, neither the Company nor any of the
Company's Subsidiaries shall be permitted to enter into or suffer to exist any
contract, agreement, arrangement or transaction with any Affiliate (an
"Affiliate Transaction"), or any series of related Affiliate Transactions (other
than Exempted Affiliate Transactions), unless (i) it is determined that the
terms of such Affiliate Transaction are fair and reasonable to the Company or
the applicable Subsidiary, and no less favorable to the Company or the
applicable Subsidiary than could have been obtained in an arm's length
transaction with a non-Affiliate, and (ii) if involving consideration to either
50
party in excess of $5 million, such Affiliate Transaction(s) has been approved
by a majority of the members of the Board of Directors that are disinterested in
such transaction, if there are any directors who are so disinterested, and (iii)
if involving consideration to either party in excess of $10 million (or $5
million if there are no disinterested directors for such transaction), the
Company also, prior to the consummation thereof, obtains a written favorable
opinion as to the fairness of such transaction to the Company or the applicable
Subsidiary from a financial point of view from an independent investment banking
firm of national reputation in the United States or, if pertaining to a matter
for which such investment banking firms do not customarily render such opinions,
an appraisal or valuation firm of national reputation in the United States.
Within 5 days of any Affiliate Transaction(s) involving consideration to either
party of $5 million or more, the Company shall deliver to the Trustee an
Officers' Certificate addressed to the Trustee certifying that such Affiliate
Transaction (or Affiliate Transactions) complied with clause (i), (ii), and
(iii) above, as applicable.
SECTION 4.13 LIMITATION ON SALE OF ASSETS AND SUBSIDIARY STOCK
(a) The Company shall not and shall not permit any of the
Company's Subsidiaries to, in one or a series of related transactions, convey,
sell, transfer, assign or otherwise dispose of, directly or indirectly, any of
their property, business or assets, including by merger or consolidation (in the
case of one of the Company's Subsidiaries), and including any sale or other
transfer or issuance of any Equity Interests of any of the Company's
Subsidiaries, whether by the Company or one of the Company's Subsidiaries and
including any sale and leaseback transaction (any of the foregoing, an "Asset
Sale"), unless:
(1) at least 75% of the total consideration for such Asset Sale
or series of related Asset Sales consists of cash or Cash Equivalents;
and
(2) the Company receives or such Subsidiary receives, as
applicable, fair market value for such Asset Sale (which determination
shall be made by the Board of Directors if such Asset Sale is in excess
of $5 million).
For purposes of clause (1) above, total consideration received means the total
consideration received for such Asset Sales, minus the amount of (a) Purchase
Money Indebtedness secured solely by the assets sold and assumed by a
transferee; provided, that the Company is and the Company's Subsidiaries are
fully released from obligations in connection therewith and (b) property that
within 60 days of such Asset Sale is converted into cash or Cash Equivalents;
provided, that such cash and Cash Equivalents shall be treated as Net Cash
Proceeds attributable to the original Asset Sale for which such property was
received.
(b) Within 360 days following such Asset Sale, the Net Cash
Proceeds therefrom (the "Asset Sale Amount") shall be:
(1) used (i) to invest in the purchase of assets (other than
securities) to be used by the Company or a Subsidiary in a Related
Business, (ii) to acquire Capital Stock (other than Disqualified Capital
Stock) of a Subsidiary or a Person engaged in a Related Business that
shall become a Subsidiary immediately upon consummation of such
acquisition, or (iii) in a combination of (i) and (ii) above; or
(2) used to repay, prepay, redeem or repurchase (i) Purchase
Money Indebtedness secured by the asset which was the subject of the
Asset Sale, (ii) Indebtedness outstanding under the Credit Agreement
51
(including that in the case of a revolver or similar arrangement that
makes credit available, such commitment is permanently reduced by such
amount), or (iii) Indebtedness (other than Disqualified Capital Stock)
of a Wholly Owned Subsidiary (other than Indebtedness owed to the
Company or an Affiliate of the Company) (including that in the case of
a revolver or similar arrangement that makes credit available, such
commitment is permanently reduced by such amount); or
(3) applied to the pro rata repurchase or redemption of the
Notes and the Company's other Indebtedness ranking on a parity with the
Notes and having similar provisions requiring the Company to repurchase
or redeem such Indebtedness with the proceeds from such Asset Sale, pro
rata in proportion to the respective principal amounts (or accreted
values in the case of Indebtedness issued with an original issue
discount) of the Notes and such other Indebtedness then outstanding.
Pending the final application of any Net Cash Proceeds, the Company may
temporarily reduce revolving credit borrowings or otherwise use the Net Cash
Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated Net Cash Proceeds from Asset Sales not
applied as set forth in Sections 4.13(b)(1), (2) or (3) hereof shall constitute
"Excess Proceeds". Within 30 days after the date that the amount of Excess
Proceeds exceeds $15 million, which date shall not be prior to 390 days after
the Asset Sale that generated such Excess Proceeds, the Company shall apply the
Excess Proceeds (the "Asset Sale Offer Amount") to the repurchase of the Notes
and such other Indebtedness ranking on a parity with the Notes and having
similar provisions requiring the Company to make an offer to purchase such
Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer
(subject only to conditions required by applicable law, if any), pro rata in
proportion to the respective principal amounts (or accreted values in the case
other Indebtedness then outstanding (the "Asset Sale Offer"), at a purchase
price of 100% of the principal amount (or accreted value in the case of
Indebtedness issued with an original issue discount) (the "Asset Sale Offer
Price") together with accrued and unpaid interest and Liquidated Damages, if
any, to the date of payment. Each Asset Sale Offer shall remain open for 20
Business Days following its commencement (the "Asset Sale Offer Period").
(d) Upon expiration of the Asset Sale Offer Period, the Company
shall apply the Asset Sale Offer Amount plus an amount equal to accrued and
unpaid interest and Liquidated Damages, if any, to the purchase of all
Indebtedness properly tendered in accordance with the provisions hereof (on a
pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all
Indebtedness so tendered) at the Asset Sale Offer Price (together with accr
amount of Notes and such other pari passu Indebtedness tendered pursuant to an
Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use
any remaining Net Cash Proceeds as otherwise permitted by this Indenture and
following the consummation of each Asset Sale Offer the Excess Proceeds amount
shall be reset to zero.
Notwithstanding, and without complying with, the provisions of
this Section 4.13 (and without constituting an "Asset Sale" hereunder):
(1) the Company may and the Company's Subsidiaries may, in the
ordinary course of business, (a) convey, sell, transfer, assign or
52
otherwise dispose of inventory and other assets acquired and held for
resale in the ordinary course of business and (b) liquidate Cash
Equivalents;
(2) the Company may and the Company's Subsidiaries may convey,
sell, transfer, assign or otherwise dispose of assets pursuant to and
in accordance with Section 5.1 hereof;
(3) the Company may and the Company's Subsidiaries may sell or
dispose of damaged, worn out or other obsolete property in the ordinary
course of business so long as such property is no longer necessary for
the proper conduct of the Company's business or the business of such
Subsidiary, as applicable;
(4) the Company may convey, sell, transfer, assign or otherwise
dispose of assets to any Wholly Owned Subsidiaries, and the Company's
Subsidiaries may convey, sell, transfer, assign or otherwise dispose of
assets to the Company or a Wholly Owned Subsidiary;
(5) the Company may and each of the Company's Subsidiaries may
surrender or waive contract rights or settle, release or surrender
contract, tort or other litigation claims in the ordinary course of
business or xxxxx Xxxxx (and permit foreclosure thereon) not prohibited
by this Indenture;
(6) the Company may and the Company's Subsidiaries may make
Permitted Investments and Restricted Investments permitted by Section
4.9 hereof; and
(7) the Company may and the Company's Subsidiaries may, in the
ordinary course of business, convey, sell, transfer, assign, or
otherwise dispose of assets or related assets with a fair market value
of less than $2.5 million per transaction (or related transactions).
All Net Cash Proceeds from an Event of Loss (other than the
proceeds of any business interruption insurance) shall be reinvested or used as
otherwise provided in Section 4.13(b)(1) or (2) above.
Any Asset Sale Offer shall be made in compliance with all
applicable laws, rules, and regulations, including, if applicable, Regulation
14E of the Exchange Act and the rules and regulations thereunder and all other
applicable federal and state securities laws. To the extent that the provisions
of any securities laws or regulations conflict with the provisions of this
Section 4.13, the Company's compliance or the compliance of any of the Company's
Subsidiaries with such laws and regulations shall not in and of itself cause a
breach of the Company's obligations under this Section 4.13.
If the payment date in connection with an Asset Sale Offer
hereunder is on or after an interest payment Record Date and on or before the
associated Interest Payment Date, any accrued and unpaid interest, and
Liquidated Damages, if any, due shall be paid on the Asset Sale Offer payment
date to the Person in whose name a Note is registered at the close of business
on such Record Date.
53
SECTION 4.14 REPURCHASE OF NOTES AT THE OPTION OF THE HOLDER UPON A CHANGE
OF CONTROL
In the event that a Change of Control has occurred, each
Holder of Notes shall have the right, at such Holder's option, pursuant to an
offer (subject only to conditions required by applicable law, if any) by the
Company (the "Change of Control Offer"), to require the Company to repurchase
all or any part of such Holder's Notes (provided, that, with respect to any
partial repurchase of such Holder's Notes, the principal amount of such Notes
must be $1,000 or an integral multiple thereof) on a date (the "Change of
Control Purchase Date") that is no later than 35 Business Days after the
occurrence of such Change of Control, at a cash price equal to 101% of the
principal amount thereof (the "Change of Control Purchase Price"), together with
accrued and unpaid interest and Liquidated Damages, if any, to the Change of
Control Purchase Date.
The Change of Control Offer shall be made within 15 Business
Days following a Change of Control and shall remain open for 20 Business Days
following its commencement (the "Change of Control Offer Period"). Upon
expiration of the Change of Control Offer Period, the Company shall promptly
purchase all Notes properly tendered in response to the Change of Control Offer.
On or before the Change of Control Purchase Date, the Company
shall:
(1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent cash sufficient to pay the
Change of Control Purchase Price (together with accrued and unpaid
interest and Liquidated Damages, if any) of all Notes so tendered; and
(3) deliver to the Trustee the Notes so accepted together with
an Officers' Certificate listing the Notes or portions thereof being
purchased by the Company.
The Paying Agent promptly shall pay the Holders of Notes so
accepted an amount equal to the Change of Control Purchase Price (together with
accrued and unpaid interest and Liquidated Damages, if any) and the Trustee
promptly shall authenticate and deliver to such Holders a new Note equal in
principal amount to any unpurchased portion of the Note surrendered. Any Notes
not so accepted shall be delivered promptly by the Company to the Holder
thereof. The Company shall publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Purchase
Date.
Any Change of Control Offer shall be made in compliance with
all applicable laws, rules and regulations, including, if applicable, Regulation
14E under the Exchange Act and the rules thereunder and all other applicable
federal and state securities laws. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Section
4.14, the Company's compliance with such laws and regulations shall not in and
of itself cause a breach of its obligations under this Section 4.14.
If the Change of Control Purchase Date hereunder is on or
after an interest payment Record Date and on or before the associated Interest
Payment Date, any accrued and unpaid interest, and Liquidated Damages, if any,
54
due on such Interest Payment Date shall be paid on the Change of Control
Purchase Date to the Person in whose name a Note is registered at the close of
business on such Record Date.
SECTION 4.15 SUBSIDIARY GUARANTORS
The Company shall not permit any of the Company's Subsidiaries
to guarantee the payment of any Indebtedness (other than the Credit Agreement)
of the Company or Parent unless such Subsidiary executes and delivers a
supplemental indenture evidencing its Guarantee of the Company's obligation
hereunder and under the Notes on a substantially similar basis.
SECTION 4.16 LIMITATION ON STATUS AS INVESTMENT COMPANY
The Company and its Subsidiaries shall be prohibited from
being required to register as an "investment company" (as that term is defined
in the Investment Company Act), or from otherwise becoming subject to regulation
under the Investment Company Act.
SECTION 4.17 LIMITATION ON SALE AND LEASEBACK TRANSACTIONS
The Company shall not, and shall not permit any of its Subsidiaries to, enter
into any sale and leaseback transaction; provided that the Company or its
Subsidiaries, as applicable, may enter into a sale and leaseback transaction if:
(1) (a)(i) the Company could have incurred Indebtedness in an
amount equal to the Attributable Indebtedness relating to such sale and
leaseback transaction under the Debt Incurrence Ratio of Section 4.7(a)
(2) hereof, provided that if all of the net proceeds from such
Attributable Indebtedness will be used to repay amounts outstanding
under the Credit Agreement, such Attributable Indebtedness may be
incurred by a Wholly Owned Subsidiary of the Company, or (ii) the
Company or such Subsidiary could have incurred Indebtedness in an amount
equal to the Attributable Indebtedness relating to such sale and
leaseback transaction under clause (e) of the definition of "Permitted
Indebtedness" and (b) the Company or such Subsidiary could have incurred
a Lien to secure such Indebtedness pursuant to Section 4.8 hereof;
(2) the gross cash proceeds of such sale and leaseback
transaction are at least equal to the fair market value (as determined
in good faith by the Board of Directors and set forth in an Officers'
Certificate delivered to the Trustee with respect to such sale and
leaseback transactions with a value in excess of $5 million), of the
property that is the subject of such sale and leaseback transaction; and
(3) the transfer of assets in such sale and leaseback
transaction is permitted by, and the Company applies the proceeds of
such transaction in compliance with, Section 4.13 hereof.
SECTION 4.18 MAINTENANCE OF PROPERTIES
The Company shall cause all material properties used or useful
to the conduct of its business and the business of each of its Subsidiaries to
be maintained and kept in good condition, repair and working order (reasonable
wear and tear excepted) and supplied with all necessary equipment and shall
cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in their reasonable judgment may be necessary, so
55
that the business carried on in connection therewith may be properly conducted
at all times; provided, however, that nothing in this Section 4.18 shall prevent
the Company from discontinuing any operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or disposal is
(a) (i) in the judgment of the Company, desirable in the conduct of the business
of such entity and (ii) would not have a material adverse effect on the ability
of the Company and the Guarantors to satisfy their obligations under the Notes
and this Indenture, and, to the extent applicable, (b) as otherwise permitted
under Section 4.13 hereof.
SECTION 4.19 CORPORATE EXISTENCE
Subject to Section 4.13 hereof and Article V hereof, the
Company shall do or cause to be done all things necessary to preserve and keep
in full force and effect (i) its corporate existence, and the corporate,
partnership or other existence of each of its Subsidiaries, in accordance with
the respective organizational documents (as the same may be amended from time to
time) of the Company or any such Subsidiary and (ii) the rights (charter and
statutory), licenses and franchises of the Company and its Subsidiaries;
provided, however, that the Company shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other existence of
any of its Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries, taken as a whole, and that the loss thereof
would not have a material adverse effect on the ability of the Company or Parent
to satisfy their respective obligations under the Notes and this Indenture.
ARTICLE V
SUCCESSORS
SECTION 5.1 MERGER, CONSOLIDATION OR SALE OF ASSETS
The Company shall not consolidate with or merge with or into
another Person or, directly or indirectly, sell, lease, convey or transfer all
or substantially all of the Company's assets (such amounts to be computed on a
consolidated basis), whether in a single transaction or a series of related
transactions, to another Person or group of affiliated Persons, unless:
(1) either (a) the Company is the continuing entity or (b) the
resulting, surviving or transferee entity is a corporation organized
under the laws of the United States, any state thereof or the District
of Columbia and expressly assumes by supplemental indenture all of the
Company's obligations in connection with the Notes and this Indenture;
(2) no Default or Event of Default shall exist or shall occur
immediately after giving effect on a pro forma basis to such
transaction;
(3) immediately after giving effect to such transaction on a pro
forma basis, the consolidated resulting, surviving or transferee entity
would immediately thereafter be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Debt Incurrence Ratio set forth
in Section 4.7(a)(2) herein, unless such transaction is (a) solely the
merger or consolidation of the Company and one of the Company's
previously existing Wholly Owned Subsidiaries or (b) solely the merger
or consolidation of the Company and Parent so long as immediately prior
to such merger or consolidation Parent had no operations and no assets
other than the ownership of the Company's Capital Stock (or other
operations or assets solely incidental thereto), and in the case of
each of clauses (a) and (b) of this Section 5.1(3) such transaction is
56
not for the purpose, or does not have the effect, of evading this
provision and not in connection with any other transaction; and
(4) any Guarantor shall have confirmed in writing to the Trustee
that its Guarantee shall apply to the obligations of the Company or the
surviving entity in accordance with the Notes and this Indenture.
SECTION 5.2 SUCCESSOR CORPORATION SUBSTITUTED
Upon any consolidation or merger or any transfer of all or
substantially all of the Company's assets in accordance with Section 5.1, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such transfer is made shall succeed to and (except in the
case of a lease) be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation had been named therein as the Company, and (except in the case of a
lease) the Company shall be released from the obligations under the Notes and
this Indenture except with respect to any obligations that arise from, or are
related to, such transaction.
For purposes of this Section 5.2, the transfer (by lease,
assignment, sale or otherwise) of all or substantially all of the properties and
assets of one or more Subsidiaries, the Company's interest in which constitutes
all or substantially all of the Company's properties and assets, shall be deemed
to be the transfer of all or substantially all of the Company's properties and
assets.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT
"Event of Default," wherever used herein, means any one of the
following events:
(1) the Company's failure to pay any installment of interest (or
Liquidated Damages, if any) on the Notes as and when the same becomes
due and payable and the continuance of any such failure for 30 days;
(2) the Company's failure to pay all or any part of the
principal, or premium, if any, on the Notes when and as the same becomes
due and payable at maturity, redemption, by acceleration or otherwise,
including, without limitation, payment of the Change of Control
Purchase Price or the Asset Sale Offer Price, on Notes validly tendered
and not properly withdrawn pursuant to a Change of Control Offer or
Asset Sale Offer, as applicable;
(3) the Company's failure or the failure by any of the Company's
Subsidiaries to observe or perform any other covenant or agreement
contained in the Notes or this Indenture, and, except for the
provisions of Sections 4.9, 4.13, 4.14 and 5.1, the continuance of such
failure for a period of 30 days after written notice is given to the
Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in aggregate principal amount of the Notes outstanding;
(4) a court having jurisdiction in the premises enters a decree
or order for (a) relief in respect of the Company or any Significant
57
Subsidiary in an involuntary case under any applicable Bankruptcy Law
now or hereafter in effect, (b) appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Company or any Significant Subsidiary or for all or substantially all
of the property and assets of the Company or any Significant Subsidiary
or (c) the winding up or liquidation of the affairs of the Company or
any Significant Subsidiary and, in each case, such decree or order
shall remain unstayed and in effect for a period of 60 consecutive
days;
(5) the Company or any Significant Subsidiary (a) commences a
voluntary case under any applicable Bankruptcy Law now or hereafter in
effect, or consents to the entry of an order for relief in an
involuntary case under any such law, (b) consents to the appointment of
or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially all of the property
and assets of the Company or any Significant Subsidiary or (c) effects
any general assignment for the benefit of creditors.
(6) a default in the Company's Indebtedness or the Indebtedness
of any of the Company's Subsidiaries with an aggregate amount
outstanding in excess of $20 million (a) resulting from the failure to
pay principal at maturity or (b) as a result of which the maturity of
such Indebtedness has been accelerated prior to its stated maturity; and
(7) final unsatisfied judgments not covered by insurance
aggregating in excess of $10 million, at any one time rendered against
the Company or any of the Company's Subsidiaries and not stayed, bonded
or discharged within 60 days.
SECTION 6.2 ACCELERATION
(a) If an Event of Default occurs and is continuing (other than
an Event of Default specified in Section 6.1(4) or (5) above relating to the
Company or any of the Company's Significant Subsidiaries), then in every such
case, unless the principal of all of the Notes shall have already become due and
payable, either the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding, by notice in writing to the
Company (and to the Trustee if given by Holders) (an "Acceleration Notice"), may
declare all principal, determined as set forth below, and accrued interest (and
Liquidated Damages, if any) thereon to be due and payable immediately. If an
Event of Default specified in Section 6.1(4) or (5) above relating to the
Company or any of the Company's Significant Subsidiaries occurs, all principal
and accrued interest (and Liquidated Damages, if any) thereon shall be
immediately due and payable on all outstanding Notes without any declaration or
other act on the part of the Trustee or the Holders.
(b) At any time after such a declaration of acceleration being
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter provided in this Article VI, the Holders
of not less than a majority in aggregate principal amount of then outstanding
Notes, by written notice to the Company and the Trustee, may rescind, on behalf
of all Holders, any such declaration of acceleration if:
(1) the Company has paid or deposited with the Trustee cash
sufficient to pay: (a) all overdue interest and Liquidated Damages, if
any, on all Notes; (b) the principal of (and premium, if any, applicable
to) any Notes which would become due other than by reason of such
declaration of acceleration, and interest thereon at the rate borne by
the Notes; (c) to the extent that payment of such interest is lawful,
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interest upon overdue interest at the rate borne by the Notes; and (d)
all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee and
its agents and counsel, and all other amounts due the Trustee under
Section 7.7 hereof; and
(2) all Events of Default, other than the non-payment of the
principal of, premium, if any, and interest (and Liquidated Damages, if
any) on the Notes which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 6.4
hereof.
(c) Notwithstanding clause (b)(2) of this Section 6.2, no waiver
shall be effective against any Holder for any Event of Default or event
which with notice or lapse of time or both would be an Event of Default
with respect to any covenant or provision which cannot be modified or
amended without a supermajority approval or the consent of the Holder
of each outstanding Note affected thereby, unless such supermajority or
all such affected Holders, as the case may be, agree, in writing, to
waive such Event of Default or other event. No such waiver shall cure
or waive any subsequent default or impair any right consequent thereon.
SECTION 6.3 OTHER REMEDIES
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal, premium, if
any, Liquidated Damages, if any, and interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 6.4 WAIVER OF PAST DEFAULTS
Subject to Section 6.7 hereof, prior to the declaration of
acceleration of the maturity of the Notes, the Holders of at least a majority in
aggregate principal amount of the outstanding Notes by written notice to the
Company and to the Trustee, may, on behalf of all Holders, waive any existing or
past Default or Event of Default hereunder and its consequences under this
Indenture, except a default:
(1) in the payment of principal of, premium, if any, Liquidated
Damages, if any, or interest on any Note not yet cured as specified in
clauses (1) and (2) of Section 6.1 hereof;
(2) in respect of any covenant or provision hereof requiring a
supermajority approval to amend, unless such supermajority agree, in
writing, to waive such default, and in respect of any covenant or
provision hereof which, under Article IX, cannot be modified or amended
without the consent of the Holder of each outstanding Note affected,
unless all such affected Holders agree, in writing, to waive such
default; or
(3) the rescission of which would conflict with any judgment or
decree of a court of competent jurisdiction.
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Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right arising therefrom.
SECTION 6.5 CONTROL BY MAJORITY
Subject to the provisions of this Indenture and applicable
law, Holders of at least a majority in aggregate principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that the Trustee determines
in good faith may be unduly prejudicial to the rights of other Holders of Notes
not joining in the giving of such direction or that may involve the Trustee in
personal liability and the Trustee may take any other action it deems proper
that is not inconsistent with any such direction received from Holders of the
Notes.
SECTION 6.6 LIMITATION ON SUITS
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of
a continuing Event of Default;
(b) the Holders of at least 25% in aggregate principal amount of
the then outstanding Notes make a written request to the Trustee to pursue the
remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
equested, provide to the Trustee indemnity satisfactory to the Trustee against
any costs, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of another
Holder of a Note or to obtain a preference or priority over another Holder of a
Note.
SECTION 6.7 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT
Notwithstanding any other provision of this Indenture, except
as permitted by Section 9.2 hereof, the right of any Holder of a Note to receive
payment of the principal of, premium and Liquidated Damages, if any, and
interest on the Note, on or after the respective due dates expressed in the Note
(including in connection with an offer to purchase) or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
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SECTION 6.8 COLLECTION SUIT BY TRUSTEE
If an Event of Default specified in Section 6.1 hereof occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount of
principal of, premium and Liquidated Damages, if any, and interest remaining
unpaid on the Notes and interest on overdue principal and, to the extent lawful,
interest and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders of the Notes allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Notes), its creditors or its property and
shall be entitled and empowered to collect, receive and distribute any money or
other property payable or deliverable on any such claims and any custodian in
any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.7 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7 hereof out
of the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding; provided, however that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar official and may be
a member of the creditor's committee.
SECTION 6.10 PRIORITIES
If the Trustee collects any money pursuant to this Article VI,
it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.7 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection (including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel);
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal and Liquidated Damages, if any, and interest, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium and Liquidated Damages, if any, and
interest, respectively; and
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Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Notes pursuant to this Section 6.10.
SECTION 6.11 UNDERTAKING FOR COSTS
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder of a Note pursuant to Section 6.7 hereof, or a suit by Holders of more
than 10% in principal amount of the then outstanding Notes.
ARTICLE VII
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE
(a) If an Event of Default of which the Trustee has knowledge
has occurred and is continuing, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture, and use the same degree of care and
skill in its exercise, as a prudent person would exercise or use under the
circumstances in the conduct of its own affairs.
(b) Except during the continuance of an Event of Default of
which the Trustee has knowledge:
(i) the duties of the Trustee shall be determined solely
by the express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no others,
and no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph (c) does not limit the effect of
paragraph (b) of this Section 7.1;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Trustee, unless it
is proved that the Trustee was negligent in ascertaining the pertinent facts;
and
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(iii) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
Sections 7.1 and 7.2 hereof.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.2 RIGHTS OF TRUSTEE
(a) In connection with the Trustee's rights and duties under
this Indenture, the Trustee may conclusively rely upon any document believed by
it to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting under this
Indenture, it may require an Officers' Certificate or an Opinion of Counsel or
both. The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such Officers' Certificate or Opinion of Counsel.
The Trustee may consult with counsel of its selection and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection from liability in respect of any action taken, suffered or omitted by
it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders unless such Holders shall have offered to the Trustee
security or indemnity satisfactory to it against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.
(g) Except with respect to Section 4.1 hereof, the Trustee shall
have no duty to inquire as to the performance of the Company's covenants in
Article IV hereof. In addition, the Trustee shall not be deemed to have
knowledge of any Default or Event of Default except (i) any Event of Default
occurring pursuant to Sections 6.1(1), 6.1(2) and 4.1 hereof or (ii) any Default
or Event of Default of which the Trustee shall have received written
notification in the manner set forth in this Indenture or a Responsible Officer
of the Trustee shall have obtained actual knowledge. Delivery of reports,
information and documents to the Trustee under Section 4.3 hereof is for
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informational purposes only and the Trustee's receipt of the foregoing shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants thereunder (as to which the Trustee is
entitled to rely exclusively on an Officer's Certificate).
(h) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee may, in its discretion, make such further inquiry or investigation
into such facts or matters as it may see fit.
(i) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and each agent, custodian and other person employed
to act hereunder.
(j) The Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person authorized to
sign an Officer's Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest (as defined in the TIA) it must eliminate such conflict within 90 days,
apply to the Commission for permission to continue as trustee or resign. Any
Agent may do the same with like rights and duties. The Trustee is also subject
to Sections 7.10 and 7.11 hereof.
SECTION 7.4 TRUSTEE'S DISCLAIMER
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes or
any money paid to the Company or upon the Company's direction under any
provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
SECTION 7.5 NOTICE OF DEFAULTS
If a Default or Event of Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to Holders of Notes a
notice in the manner provided by Section 313(c) of the TIA of the Default or
Event of Default, whether or not the TIA is then applicable to the Indenture or
the Notes, within 90 days after it occurs. Except in the case of a Default or
Event of Default in payment of principal of, premium, if any, Liquidated
Damages, if any, or interest on any Note, the Trustee may withhold the notice if
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and so long as a committee of its Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Notes.
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA ss. 313(a) (but if no
event described in TIA ss. 313(a) has occurred within the 12 months preceding
the reporting date, no report need be transmitted). The Trustee also shall
comply with TIA ss. 313(b)(2). The Trustee shall also transmit by mail all
reports as required by TIA ss. 313(c).
A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Company and filed with the Commission
and each stock exchange on which the Notes are listed in accordance with TIA ss.
313(d). The Company shall promptly notify the Trustee when the Notes are listed
on any stock exchange.
SECTION 7.7 COMPENSATION AND INDEMNITY
The Company shall pay to the Trustee from time to time such
compensation as agreed upon in writing by the Trustee and the Company for the
Trustee's acceptance of this Indenture and for its services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Company shall indemnify the Trustee and any predecessor
trustee against any and all losses, liabilities, claims, damages or expenses,
including taxes (other than taxes based upon, measured by or determined by the
income of the Trustee) (including reasonable attorneys' fees) and incurred by it
arising out of or in connection with the acceptance or administration of its
duties under this Indenture, including the costs and expenses of enforcing this
Indenture against the Company (including this Section 7.7) and defending itself
against any claim (whether asserted by the Company or any Holder or any other
Person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except to the extent any such loss, liability or
expense may be attributable to its negligence, bad faith or willful misconduct.
The Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve the
Company of its obligations hereunder. The Company shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel
and the Company shall pay the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld.
The obligations of the Company under this Section 7.7 shall
survive the satisfaction and discharge of this Indenture and the resignation or
removal of the Trustee.
To secure the Company's payment obligations in this Section
7.7, the Trustee shall have a Lien prior to the Notes on all money or property
held or collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
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When the Trustee incurs expenses or renders services after an
Event of Default specified in Sections 6.1(4) or 6.1(5) hereof occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss.
313(b)(2) to the extent applicable.
SECTION 7.8 REPLACEMENT OF TRUSTEE
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.8.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders of Notes of a majority in principal amount of the then outstanding Notes
may remove the Trustee by so notifying the Trustee and the Company in writing.
The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(c) a Custodian or public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Xxxxxxx does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of Notes of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction at the
expense of the Company in the case of the Trustee for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of a Note
who has been a Holder of a Note for at least six months, fails to comply with
Section 7.10 hereof, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee; provided all sums
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owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.7 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.8, the Company's obligations under Section 7.7 hereof shall
continue for the benefit of the retiring Trustee.
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION
There shall at all times be a Trustee hereunder that is a
corporation or trust company (or a member of a bank holding company) organized
and doing business under the laws of the United States of America or of any
state thereof that is authorized under such laws to exercise corporate trustee
power, that is subject to supervision or examination by federal or state
authorities and that has (or the bank holding company of which it is a member
has) a combined capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
The Trustee is subject to TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE AND SATISFACTION AND DISCHARGE
SECTION 8.1 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 8.2 or 8.3 hereof be applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article VIII.
SECTION 8.2 LEGAL DEFEASANCE
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.2, each of the Company and Parent, as
applicable, shall, subject to the satisfaction of the applicable conditions set
forth in Section 8.4 hereof, be deemed to have been discharged from its
obligations with respect to all outstanding Notes and the Parent Guarantee, as
applicable, on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that
the Company shall be deemed to have paid and discharged all amounts owed under
the outstanding Notes and Parent shall be deemed to have paid and discharged the
entire Indebtedness represented by the outstanding Parent Guarantee, which shall
thereafter be deemed to be "outstanding" only for the purposes of Section 8.5
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hereof and the other Sections of this Indenture referred to in (a) and (b)
below, and to have satisfied all its other obligations under such Notes, such
Parent Guarantee and this Indenture (and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following provisions which shall survive until otherwise
terminated or discharged hereunder: (a) the rights of Holders of outstanding
Notes to receive solely from the trust fund described in Section 8.4 hereof, and
as more fully set forth in Section 8.4, payments in respect of the principal of,
premium, if any, and interest and Liquidated Damages, if any, on such Notes when
such payments are due, (b) the Company's obligations with respect to such Notes
under Sections 2.3, 2.6, 2.7 , 2.10 and 4.2 hereof, (c) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and the Company's
obligations in connection therewith and (d) the Legal Defeasance provisions
under Sections 8.4, 8.5, 8.6, and 8.7 hereof. Subject to compliance with this
Article VIII, the Company may exercise its option under this Section 8.2
notwithstanding the prior exercise of its option under Section 8.3 hereof.
SECTION 8.3 COVENANT DEFEASANCE
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.3, subject to the satisfaction of the
applicable conditions set forth in Section 8.4 hereof, the Company shall be
released from its obligations under Sections 4.3, 4.4, 4.5, 4.7, 4.8, 4.9, 4.10,
4.11, 4.12, 4.13, 4.14, 4.15, 4.17, 4.18 and 4.19, and Article V hereof, and
Parent shall be released from its obligations under Section 10.3 hereof, in each
case on and after the date the conditions set forth below are satisfied
(hereinafter, "Covenant Defeasance"), and the Notes and the Parent Guarantee
shall thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding Notes,
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.1 hereof, but,
except as specified above, the remainder of this Indenture and such Notes shall
be unaffected thereby. In addition, upon the Company's exercise under Section
8.1 hereof of the option applicable to this Section 8.3, subject to the
satisfaction of the applicable conditions set forth in Section 8.4 hereof, (x)
Sections 6.1(3), (6) and (7) hereof shall not constitute Events of Default and
(y) Sections 6.1(4) and 6.1(5) hereof shall not constitute an Event of Default
to the extent they occur after the 91st day following the occurrence of the
Company's exercise of Covenant Defeasance; provided, however that for all other
purposes as set forth herein, such Covenant Defeasance provisions shall be
effective.
SECTION 8.4 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE
The following shall be the conditions to the application of
either Section 8.2 or 8.3 hereof to the outstanding Notes:
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In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Notes, cash in United States legal
tender, U.S. Government Obligations, or a combination thereof, in amounts that
shall be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if any, and
Liquidated Damages, if any, and interest on the outstanding Notes on the stated
date for payment thereof or on the applicable redemption date, as the case may
be, and the Trustee must have, for the benefit of Holders of the Notes, a valid,
perfected exclusive security interest in such trust;
(b) in the case of an election under Section 8.2 hereof, the
Company must deliver to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that the Holders
of the outstanding Notes shall not recognize income, gain or loss for federal
income tax purposes as a result of such Legal Defeasance and shall be subject to
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.3 hereof, the
Company must deliver to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that Holders of the outstanding
Notes shall not recognize income, gain or loss for federal income tax purposes
as a result of such Covenant Defeasance and shall 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;
(d) in the case of an election under Section 8.2 or 8.3 hereof,
no Default or Event of Default shall have occurred and be continuing on the date
of the deposit, and in the case of an election under Section 8.2 hereof, no
Event of Default specified in Section 6.1(4) or (5) hereof shall have occurred
at any time from the date of the deposit to the 91st calendar day thereafter;
(e) the Defeasance may not result in a breach or violation of,
or constitute a default under any material agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;
(f) the Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
to hinder, delay or defraud any other of the Company's creditors; and
(g) the Company must deliver to the Trustee an Officers'
Certificate confirming the satisfaction of the conditions in clauses (a) through
(f) above, and an Opinion of Counsel, confirming the satisfaction of the
conditions in clauses (a) (with respect to the validity and perfection of the
security interest), (b), (c) and (e) above.
Legal Defeasance and Covenant Defeasance shall be deemed to
occur on the earlier of (i) the 91st day after the deposit and (ii) the date all
of the applicable conditions set forth in this Section 8.4 are satisfied.
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SECTION 8.5 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS
Subject to Section 8.6 hereof, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.5, the
"Trustee") pursuant to Section 8.4 or Section 8.8 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium, if any, and
interest (and Liquidated Damages, if any), but such money need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or U.S.
Government Obligations deposited pursuant to Section 8.4 or Section 8.8 hereof
or the principal and interest received in respect thereof, other than any such
tax, fee or other charge which by law is for the account of the Holders of the
outstanding Notes.
Anything in this Article VIII to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or U.S. Government Obligations held by it as
provided in Section 8.4 hereof which, in the opinion of a firm of independent
public accountants nationally recognized in the United States expressed in a
written certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.4(a) hereof), are in excess of the amount thereof that
would then be required to be deposited to effect an equivalent Legal Defeasance
or Covenant Defeasance.
SECTION 8.6 REPAYMENT TO COMPANY
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium,
if any, Liquidated Damages, if any, or interest on any Note and remaining
unclaimed for two years after such principal, and premium, if any, Liquidated
Damages, if any, or interest has become due and payable shall be paid to the
Company on its written request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as a
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in the
New York Times and The Wall Street Journal (national edition), notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining shall be repaid to the Company.
SECTION 8.7 REINSTATEMENT
If the amount deposited with the Trustee by the Company in
accordance with Section 8.4(a) or Section 8.8 hereof shall be insufficient to
pay the principal of, premium, if any, and interest and Liquidated Damages, if
any, on the Notes when due, or if the Trustee or Paying Agent is unable to apply
any United States legal tender or U.S. Government Obligations in accordance with
Section 8.2, 8.3 or 8.8 hereof, as the case may be, by reason of any order
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directing the repayment of the deposited money to the Company or otherwise
making the deposit unavailable to make payments under the Notes when due, or if
any court enters an order directing the repayment of the money so deposited to
the Company or to a fund for the benefit of its creditors, then (so long as the
insufficiency exists or the order remains in effect) the Company's and Parent's
obligations under this Indenture, the Notes and the Parent Guarantee shall be
revived and reinstated as though no deposit had occurred pursuant to Section
8.3, 8.4 or 8.8 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.3, 8.4 or 8.8
hereof, as the case may be; provided, however, that, if the Company makes any
payment of principal of, premium, if any, Liquidated Damages, if any, or
interest on any Note following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Notes to receive such
payment from the money held by the Trustee or Paying Agent.
SECTION 8.8 SATISFACTION AND DISCHARGE
This Indenture will be discharged and will cease to be of
further effect (except for the provisions of Sections 2.3, 2.6, 2.7, 2.10, 4.2,
8.5 and 8.7 hereof) as to all outstanding Notes when either:
(a) All outstanding Notes have been delivered to the Trustee for
cancellation; or
(b) (1) The Company has given irrevocable and unconditional
notice of redemption for all of the outstanding Notes within 60 days pursuant to
Section 3.3 hereof, or all outstanding Notes have otherwise become due and
payable, and the Company has irrevocably deposited or caused to be deposited
with the Trustee an amount of money sufficient to pay and discharge the entire
Indebtedness (including all principal, premium, if any, and accrued interest
(and Liquidated Damages, if any)) on all outstanding Notes at maturity or as of
the Redemption Date,
(2) the Company shall have delivered irrevocable instructions to
the Trustee to apply the deposited money toward the payment of the Notes
at maturity or the Redemption Date, as the case may be;
(3) the Trustee, for the benefit of the Holders of the Notes,
has a valid, perfected, first priority security interest in the trust;
(4) such deposit does not and will not result in a breach or
violation of, or constitute a Default under this Indenture or a default
under any other material agreement or instrument to which the Company or
any of the Company's Subsidiaries are a party or are otherwise bound;
(5) the Company shall have paid all other amounts payable by the
Company under this Indenture;
(6) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
intent to hinder, delay, or defraud any other of the Company's
creditors; and
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(7) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel confirming the satisfaction of
the conditions in clauses (3) (with respect to the validity and
perfection of the security interest) and (4) above.
ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.1 WITHOUT CONSENT OF HOLDERS OF NOTES
Notwithstanding Section 9.2 hereof, the Company, Parent and
the Trustee may amend or supplement this Indenture, the Notes or the Parent
Guarantee, without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(c) to provide for the assumption of the Company's obligations
to the Holders of the Notes in the case of a merger or consolidation pursuant to
Article V hereof;
(d) to provide for additional Guarantors as set forth in Section
4.15 hereof or for the release or assumption of a Guarantee in compliance with
this Indenture;
(e) to make any change that would provide any additional rights
or benefits to the Holders of the Notes or that does not adversely affect the
rights hereunder of any Holder of the Note;
(f) to comply with the provisions of the Depositary, Euroclear
or Clearstream or the Trustee with respect to the provisions of this Indenture
or the Notes relating to transfers and exchanges of Notes or beneficial
interests therein;
(g) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA; or
(h) to provide for the issuance of Additional Notes in
accordance with the limitations set forth in this Indenture as of the date
hereof.
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 9.6 hereof, the Trustee shall join with the Company in the
execution of any amended or supplemental indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental indenture that adversely
affects its own rights, duties or immunities under this Indenture or otherwise,
in which case the Trustee may in its discretion, but shall not be obligated to,
enter into such amended or supplemental indenture.
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SECTION 9.2 WITH CONSENT OF HOLDERS OF NOTES
Except as expressly stated otherwise in this Section 9.2, and
subject to Sections 6.4 and 6.7 hereof, the Company, Parent and the Trustee may
amend or supplement this Indenture, the Notes and the Parent Guarantee, with the
consent of the Holders of not less than a majority in aggregate principal amount
of the Notes then outstanding (including, without limitation, consents obtained
in connection with a purchase of, or tender offer or exchange offer for, the
Notes), and, subject to Sections 6.4 and 6.7 hereof, any existing Default or
Event of Default (other than a Default or Event of Default in the payment of the
principal of, premium, if any, or interest or Liquidated Damages, if any, on the
Notes, except a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of this Indenture or the Notes may
be waived with the consent of the Holders of not less than a majority in
aggregate principal amount of the then outstanding Notes (including consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, the Notes).
However, without the consent of each Holder affected (it being
understood that, except as expressly stated otherwise in paragraphs (a) through
(d) below, Section 4.13 and 4.14 hereof may be amended, waived or modified in
accordance with the first paragraph of this Section 9.2) an amendment or waiver
may not (with respect to any Notes held by a non-consenting Holder):
(a) change the Stated Maturity on any Note, or reduce the
principal amount thereof or the rate (or extend the time for payment) of
interest thereon or any premium payable upon the redemption thereof at the
Company's option, or change the city of payment where, or the coin or currency
in which, any Note or any premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption at the Company's
option, on or after the Redemption Date), or after an Asset Sale or Change of
Control has occurred (and prior to the application of the Net Cash Proceeds
therefrom as provided in Section 4.13 or prior to the related Change of Control
Purchase Date, as applicable) reduce the Asset Sale Offer Price or the Change of
Control Purchase Price with respect to the corresponding Asset Sale or Change of
Control, or alter the provisions (including the defined terms used therein)
regarding the Company's right to redeem the Notes as a right or at the Company's
option or the provisions (including the defined terms used therein) of Section
4.14 in a manner adverse to the Holders; or
(b) reduce the percentage in principal amount of the outstanding
Notes, the consent of whose Holders is required for any such amendment,
supplemental indenture or waiver provided for in this Indenture; or
(c) modify any of the waiver provisions, except to increase any
required percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
outstanding Note affected thereby; or
(d) cause the Notes or the Parent Guarantee to become
contractually subordinate in right of payment to any other Indebtedness.
In connection with any amendment, supplement or waiver under
this Article IX, the Company may, but shall not be obligated to, offer to any
Holder who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
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Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid,
and upon receipt by the Trustee of the documents described in Section 9.6
hereof, the Trustee shall join with the Company in the execution of such amended
or supplemental indenture unless such amended or supplemental indenture
adversely affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of
Notes under this Section 9.2 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.2 becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental indenture or waiver.
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT
Every amendment or supplement to this Indenture or the Notes
shall be set forth in an amended or supplemental indenture that complies with
the TIA as then in effect.
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS
Until an amendment, supplement or waiver becomes effective (as
determined by the Company and which may be prior to any such amendment,
supplement or waiver becoming operative), a consent to it by a Holder of a Note
is a continuing consent by the Holder of a Note and every subsequent Holder of a
Note or portion of a Note that evidences the same Indebtedness as the consenting
Holder's Note, even if notation of the consent is not made on any Note. However,
any such Holder of a Note or subsequent Holder of a Note may revoke the consent
as to its Note if the Trustee receives written notice of revocation before the
date the waiver, supplement or amendment becomes effective (as determined by the
Company), which may be prior to any such amendment, supplement or waiver
becoming operative.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver, which record date shall be the date so fixed by
the Company notwithstanding the provisions of the TIA. If a record date is
fixed, then notwithstanding the last sentence of the immediately preceding
paragraph, those Persons who were Holders at such record date, and only those
Persons (or their duly designated proxies), shall be entitled to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder unless it makes a change described in any of clauses (a)
through (d) of Section 9.2 hereof, in which case, the amendment, supplement or
waiver shall bind only each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note; provided, that any such waiver shall not impair or
affect the right of any non-consenting Holder to receive payment of principal
and premium of, if any, and interest and Liquidated Damages, if any, on a Note,
74
on or after the respective dates set for such amounts to become due and payable
expressed in such Note, or to bring suit for the enforcement of any such payment
on or after such respective dates.
SECTION 9.5 NOTATION ON OR EXCHANGE OF NOTES
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue and the Trustee shall authenticate
new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 9.6 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article IX if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amended or supplemental indenture until the Board of
Directors approves it. In executing any amended or supplemental indenture, the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive and (subject to Section 7.1 hereof) shall be fully protected in
relying upon, an Officers' Certificate and an Opinion of Counsel stating that
the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture.
ARTICLE X
PARENT GUARANTEE
SECTION 10.1 GUARANTEES
By its execution hereof, Parent acknowledges and agrees that
it receives substantial benefits from the Company and that it is providing its
Guarantee for good and valuable consideration, including, without limitation,
such substantial benefits and services. Accordingly, subject to the provisions
of this Article X, Parent hereby fully and unconditionally guarantees on a
senior basis to each Holder of a Note authenticated and delivered by the Trustee
and its successors and assigns that: (i) the principal of, premium, if any, and
interest and Liquidated Damages, if any, on the Notes shall be duly and
punctually paid in full when due, whether at maturity, by acceleration, call for
redemption, upon a Change of Control Offer, upon an Asset Sale Offer or
otherwise, and interest on overdue principal, premium, if any, Liquidated
Damages, if any, and (to the extent permitted by law) interest on any interest,
if any, on the Notes and all other obligations of the Company to the Holders or
the Trustee hereunder or under the Notes (including fees, expenses or other)
shall be promptly paid in full or performed, all in accordance with the terms
hereof; and (ii) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, the same shall be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration, call for redemption, upon a Change
of Control, upon an Asset Sale Offer or otherwise, subject, however, in the case
of clauses (i) and (ii) above, to the limitations set forth in Section 10.5
hereof (collectively, the "Guarantee Obligations").
Subject to the provisions of this Article X, Xxxxxx hereby
agrees that its Guarantee hereunder shall be unconditional, irrespective of the
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validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder
of the Notes with respect to any thereof, the entry of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of Parent. Parent
hereby waives and relinquishes: (a) any right to require the Trustee, the
Holders or the Company (each, a "Benefited Party") to proceed against the
Company, the Subsidiaries or any other Person or to proceed against or exhaust
any security held by a Benefited Party at any time or to pursue any other remedy
in any secured party's power before proceeding against Parent; (b) any defense
that may arise by reason of the incapacity, lack of authority, death or
disability of any other Person or Persons or the failure of a Benefited Party to
file or enforce a claim against the estate (in administration, bankruptcy or any
other proceeding) of any other Person or Persons; (c) demand, protest and notice
of any kind (except as expressly required by this Indenture), including but not
limited to notice of the existence, creation or incurring of any new or
additional Indebtedness or obligation or of any action or non-action on the part
of Parent, the Company, the Subsidiaries, any Benefited Party, any creditor of
Parent, the Company or the Subsidiaries or on the part of any other Person
whomsoever in connection with any obligations the performance of which are
hereby guaranteed; (d) any defense based upon an election of remedies by a
Benefited Party, including but not limited to an election to proceed against
Parent for reimbursement; (e) any defense based upon any statute or rule of law
which provides that the obligation of a surety must be neither larger in amount
nor in other respects more burdensome than that of the principal; (f) any
defense arising because of a Benefited Party's election, in any proceeding
instituted under the Bankruptcy Law, of the application of Section 1111(b)(2) of
the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a
security interest under Section 364 of the Bankruptcy Code. Parent hereby
covenants that, except as otherwise provided therein, the Parent Guarantee shall
not be discharged except by payment in full of all Guarantee Obligations,
including the principal, premium, if any, and interest and Liquidated Damages,
if any, on the Notes and all other costs provided for under this Indenture or as
provided in Article VIII.
If any Holder or the Trustee is required by any court or
otherwise to return to either the Company or Parent, or any trustee or similar
official acting in relation to either the Company or Parent, any amount paid by
the Company or Parent to the Trustee or such Holder, the Parent Guarantee, to
the extent theretofore discharged, shall be reinstated in full force and effect.
Parent agrees that it shall not be entitled to any right of subrogation in
relation to the Holders in respect of any Guarantee Obligations hereby until
payment in full of all such obligations guaranteed hereby. Parent agrees that,
as between it, on the one hand, and the Holders of Notes and the Trustee, on the
other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article VI hereof for the purposes hereof,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Guarantee Obligations, and (y) in the event of
any acceleration of such obligations as provided in Article VI hereof, such
Guarantee Obligations (whether or not due and payable) shall forthwith become
due and payable by Parent for the purpose of the Parent Guarantee.
SECTION 10.2 EXECUTION AND DELIVERY OF GUARANTEES
To evidence the Parent Guarantee set forth in Section 10.1
hereof, Xxxxxx agrees that a notation of the Parent Guarantee substantially in
the form included in Exhibit A hereto shall be endorsed on each Note
authenticated and delivered by the Trustee and that this Indenture shall be
executed on behalf of Parent by an Officer of the Parent.
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Parent agrees that the Parent Guarantee set forth in this
Article X shall remain in full force and effect and apply to all the Notes
notwithstanding any failure to endorse on each Note a notation of the Parent
Guarantee.
If an Officer whose facsimile signature is on a Note or a
notation of Parent Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which the Parent Guarantee is endorsed, the Parent
Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Parent
Guarantee set forth in this Indenture on behalf of Parent.
SECTION 10.3 PARENT MAY CONSOLIDATE, ETC., ON CERTAIN TERMS
Subject to Section 4.14, except for a merger or consolidation
in which Parent is sold and its Guarantee is released in compliance with the
provisions of Section 10.4 hereof, and except for a merger or consolidation of
Parent and the Company as contemplated by Section 5.1 hereof, Parent shall not
consolidate or merge with or into (whether or not Parent is the surviving
Person) another Person unless (i) subject to the provisions of the following
paragraph and the other provisions of this Indenture, the Person formed by or
surviving any such consolidation or merger (if other than Parent) assumes all
the obligations of Parent pursuant to a supplemental indenture in form
reasonably satisfactory to the Trustee, pursuant to which such Person shall
Guarantee on a senior basis all of Parent's obligations under the Parent
Guarantee on the terms set forth in this Indenture; and (ii) immediately before
and immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred or be continuing. In case of any such consolidation
or merger and upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and reasonably satisfactory in
form to the Trustee, of the Parent Guarantee endorsed upon the Notes and the due
and punctual performance of all of the covenants and conditions of this
Indenture to be performed by Parent, such successor corporation shall succeed to
and be substituted for Parent with the same effect as if it had been named
herein as Parent. Such successor corporation thereupon may cause to be signed
any or all of the Parent Guarantees to be endorsed upon all of the Notes
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee. All the Parent Guarantees so issued shall in all
respects have the same legal rank and benefit under this Indenture as the Parent
Guarantees theretofore and thereafter issued in accordance with the terms of
this Indenture as though all of such Parent Guarantees had been issued at the
date of the execution hereof.
The Trustee, subject to the provisions of Section 11.4 hereof,
shall be entitled to receive an Officers' Certificate as conclusive evidence
that any such consolidation or merger, and any such assumption of Guarantee
Obligations, comply with the provisions of this Section 10.3. Such Officers'
Certificate shall comply with the provisions of Section 11.5 hereof.
SECTION 10.4 RELEASE OF PARENT
Subject to Section 4.14, and notwithstanding Section 10.3
hereof, upon the sale or disposition (including by merger or stock purchase) of
Parent (as an entirety), Parent shall be deemed released from its obligations
under its Guarantee of the Notes; provided, however, that any such termination
shall occur only to the extent that all obligations of Parent under all of its
guarantees of any Subordinated Indebtedness or any unsecured Indebtedness that
ranks pari passu with the Notes or the Parent Guarantee shall also terminate
upon such release, sale or transfer.
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Upon delivery by the Company to the Trustee of an Officer's
Certificate, to the effect that such sale or other disposition or that such
designation was made by the Company in accordance with the provisions of this
Indenture, the Trustee shall execute any documents reasonably required in order
to evidence the release of Parent from its obligations under its Guarantee.
Except as provided in Section 10.3 hereof, for so long as Parent is not released
from its obligations under its Guarantee, it shall remain liable for the full
amount of principal of, premium, if any, and interest and Liquidated Damages, if
any, on the Notes and for the other obligations of Parent under this Indenture
as provided in this Article X.
Notwithstanding the foregoing provisions of this Article X, if
the Parent Guarantee would otherwise be released pursuant to the provisions of
this Section 10.4, Parent may elect, at its sole discretion, by written notice
to the Trustee, to maintain the Parent Guarantee in effect notwithstanding the
event or events that otherwise would cause the release of the Parent Guarantee
(which election to maintain the Parent Guarantee in effect may be conditional or
for a limited period of time).
SECTION 10.5 LIMITATION OF PARENT'S LIABILITY; CERTAIN BANKRUPTCY EVENTS
(a) Parent, and by its acceptance hereof each Holder, hereby
confirms that it is the intention of all such parties that the Guarantee
Obligation of Parent pursuant to its Guarantee not constitute a fraudulent
transfer or conveyance for purposes of any Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
federal or state law. To effectuate the foregoing intention, the Holders and
Parent hereby irrevocably agree that the Guarantee Obligations of Parent under
this Article X shall be limited to the maximum amount as shall, after giving
effect to all other contingent and fixed liabilities of Parent, result in the
Guarantee Obligations of Parent under the Parent Guarantee not constituting a
fraudulent transfer or conveyance.
(b) Parent hereby covenants and agrees, to the fullest extent
that it may do so under applicable law, that in the event of the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Company, Parent
shall not file (or join in any filing of), or otherwise seek to participate in
the filing of, any motion or request seeking to stay or to prohibit (even
temporarily) execution on the Parent Guarantee and hereby waives and agrees not
to take the benefit of any such stay of execution, whether under Section 362 or
105 of the Bankruptcy Law or otherwise.
SECTION 10.6 APPLICATION OF CERTAIN TERMS AND PROVISIONS TO PARENT
(a) For purposes of any provision of this Indenture which
provides for the delivery by Parent of an Officers' Certificate and/or an
Opinion of Counsel, the definitions of such terms in Section 1.1 hereof shall
apply to Parent as if references therein to the Company were references to
Parent.
(b) Any request, direction, order or demand which by any
provision of this Indenture is to be made by Parent shall be sufficient if
evidenced as described in Section 11.2 hereof as if references therein to the
Company were references to Parent.
(c) Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the holders of Notes to or on Parent may be given or served as described in
Section 11.2 hereof as if references therein to the Company were references to
Parent.
78
(d) Upon any demand, request or application by Parent to the
Trustee to take any action under this Indenture, Parent shall furnish to the
Trustee such certificates and opinions as are required in Section 11.4 hereof as
if all references therein to the Company were references to Parent.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 TRUST INDENTURE ACT CONTROLS
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by the TIA, the imposed duties shall control.
SECTION 11.2 NOTICES
Any notice or communication by the Company, Parent or the
Trustee to the other is duly given if in writing and delivered in person or
mailed by first class mail (registered or certified, return receipt requested),
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Company or Parent:
Xxxxx'x Corporation and
Xxxxx'x Holdings, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxxx, Xxxxx Xxxxxxxx 00000-9966
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
with copies (which shall not constitute notice) to:
Xxxxxx & Bird LLP
Bank of America Plaza
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-4000
Attention: Xxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
If to the Trustee:
U.S. Bank National Association 00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000 Attention: Xxxxxxx Xxxxxxxx
Xxxxxxxxx: (000) 000-0000
The Company, Parent or the Trustee, by notice to the others
may designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: (i) at the time delivered by
79
hand, if personally delivered; (ii) when answered back, if telexed; (iii) when
receipt acknowledged, if telecopied; and (iv) the next Business Day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next day
delivery.
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on the
register kept by the Registrar. Any notice or communication shall also be so
mailed to any Person described in TIA ss. 313(c), to the extent required by the
TIA. Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
SECTION 11.3 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA ss. 312(c).
SECTION 11.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 11.5 hereof) stating that, in the opinion of the signer or signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 11.5 hereof) stating that, in the opinion of such counsel, all such
conditions precedent have been satisfied.
SECTION 11.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA
ss. 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
80
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied; provided, however, that
with respect to matters of fact, an Opinion of Counsel may rely on an Officers'
Certificate or certificate of public officials.
SECTION 11.6 RULES BY TRUSTEE AND AGENTS
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
SECTION 11.7 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS
No past, present or future director, officer, employee,
incorporator, Affiliate or stockholder (direct or indirect) of the Company or
Parent (or any such successor entity), as such, shall have any personal
liability for any obligations of the Company or Parent under the Notes, the
Parent Guarantee or this Indenture or for any claim based on, in respect of, or
by reason of, such obligations or their creation, except in their capacity as an
obligor or Guarantor of the Notes in accordance with this Indenture. Each Holder
by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes.
SECTION 11.8 GOVERNING LAW
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES, INCLUDING,
WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(b).
SECTION 11.9 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 11.10 SUCCESSORS
All agreements of the Company and Parent in this Indenture and
the Notes shall bind their successors. All agreements of the Trustee in this
Indenture shall bind its successors.
SECTION 11.11 SEVERABILITY
In case any one or more of the provisions of this Indenture or
in the Notes or in the Parent Guarantee shall be held invalid, illegal or
unenforceable, in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions shall not in any way be affected or impaired thereby, it being
intended that all of the provisions hereof shall be enforceable to the full
extent permitted by law.
81
SECTION 11.12 COUNTERPART ORIGINALS
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 11.13 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents and headings of the Articles and
Sections of this Indenture have been inserted for convenience of reference only,
are not to be considered a part of this Indenture and shall in no way modify or
restrict any of the terms or provisions hereof.
[Signatures on following page]
82
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed this
Indenture as of the date first written above.
THE COMPANY:
XXXXX'X HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name:
Title:
PARENT:
XXXXX'X CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President,
General Counsel and Secretary
THE TRUSTEE:
U.S. BANK NATIONAL ASSOCIATION
By: /s/ X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
83
EXHIBIT A
[FORM OF NOTE]
Denny's Holdings, Inc.
10% [SERIES A] [SERIES B] SENIOR NOTE
DUE 2012
CUSIP:____________
No. $_________________
Denny's Holdings, Inc., a New York corporation (hereinafter
called the "Company" which term includes any successors under the Indenture
hereinafter referred to), for value received, hereby promises to pay to [ ,
or registered assigns, the principal sum of __________ Dollars, on October 1,
2012.
Interest Payment Dates: April 1 and October 1, commencing
April 1, 2005.
Record Dates: March 15 and September 15
Reference is made to the further provisions of this Note on
the reverse side, which will, for all purposes, have the same effect as if set
forth at this place.
A-1
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Denny's Holdings, Inc.
a New York corporation
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
Dated: _____________
A-2
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned Indenture.
U.S. Bank National Association
By: ____________________________
Authorized Signatory
Dated: _____________
A-3
(Back of Note)
10% [Series A] [Series B]1 Senior Notes due 2012
[THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.6 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.6(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.]2
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (00 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]3
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE CASH PAYMENTS OF INTEREST DURING THE PERIOD WHICH SUCH HOLDER HOLDS
THIS NOTE. NOTHING IN THIS LEGEND SHALL BE DEEMED TO PREVENT INTEREST FROM
ACCRUING ON THIS NOTE.]4
_________________________
1 Series A should be replaced with Series B in the Exchange Notes.
2 To be included only on Global Notes deposited with DTC as Depositary.
3 To be included only on Global Notes deposited with DTC as Depositary.
4 To be included only on Reg S Temporary Global Notes.
A-4
[THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF
THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) THIS NOTE
MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED
STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (IV) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR
(7) OF REGULATION D UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING THE TRANSFER OF THIS NOTE AND , IF SUCH TRANSFER IS IN
RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION
OF COUNSEL ACCEPTABLE TO THE ISSUER THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH OF CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.]5
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. Interest. Denny's Holdings, Inc., a New York corporation (the
"Company"), promises to pay interest on the principal amount of this Note at 10%
per annum from the Issue Date until maturity and will pay the Liquidated
Damages, if any, payable pursuant to Section 4 of the Registration Rights
Agreement referred to below. The Company will pay interest and Liquidated
Damages, if any, semi-annually on April 1 and October 1 of each year, or if any
such day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). The first Interest Payment Date shall be April 1,
2005. Interest on the Notes shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the Issue Date;
provided that if there is no existing Default in the payment of interest, and if
this Note is authenticated between a Record Date (defined below) referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date. The Company shall pay
interest (including Accrued Bankruptcy Interest in any proceeding under any
__________________________
5 To be included only on Transfer Restricted Notes.
A-5
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at the rate then in effect; it shall pay interest (including Accrued
Bankruptcy Interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Liquidated Damages, if any, (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment. The Company shall pay interest on the Notes
(except defaulted interest) and Liquidated Damages, if any, to the Persons who
are registered Holders of Notes at the close of business on the March 15 or
September 15 next preceding the Interest Payment Date (each a "Record Date"),
even if such Notes are cancelled after such Record Date and on or before such
Interest Payment Date, except as provided in Section 2.12 of the Indenture (as
defined below) with respect to defaulted interest. The Notes shall be payable as
to principal, interest, premium, if any, and Liquidated Damages, if any, at the
office or agency of the Company maintained within the City and State of New York
for such purpose, or, at the option of the Company, payment of interest and
Liquidated Damages, if any, may be made by check mailed to the Holders at their
addresses set forth in the register of Holders, and provided that payment by
wire transfer of immediately available funds to an account within the United
States shall be required with respect to principal of and interest, premium, if
any, and Liquidated Damages, if any, on all Global Notes. Such payment shall be
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, U.S. Bank National
Association, the Trustee under the Indenture, shall act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. Indenture. The Company issued the Notes under an Indenture dated as
of the Issue Date ("Indenture") by and among the Company, Parent and the
Trustee. The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code xx.xx. 77aaa-77bbbb). The Notes are subject to all such
terms, and Holders are referred to the Indenture and such Act for a statement of
such terms.
5. Optional Redemption. (a) Except as set forth in this Section 5 and
Section 3.7 of the Indenture, the Company shall not have the option to redeem
the Notes pursuant to this Section 5 and such Section 3.7 prior to October 1,
2008. The Notes shall be redeemable for cash at the option of the Company, in
whole or in part, at any time on or after October 1, 2008, upon not less than 30
days nor more than 60 days prior notice mailed by first class mail to each
older at its past registered address, at the following redemption prices
(expressed as percentages of the principal amount) if redeemed during the
12-month period commencing October 1 of the years indicated below, in each case
(subject to the right of Holders of record on a Record Date to receive the
corresponding interest due (and the corresponding Liquidated Damages, if any) on
the corresponding Interest Payment Date that is on or prior to such redemption
date) together with accrued and unpaid interest and Liquidated Damages, if any,
thereon to the date of redemption of the Notes (the "Redemption Date"):
Period Percentage
------ ----------
2008........................................... 105.000%
2009........................................... 102.500%
A-6
Period Percentage
------ ----------
2010 and thereafter............................ 100.000%
(b) Notwithstanding the provisions of clause (a) of this Section
5, at any time or from time to time on or prior to October 1, 2007, upon one or
more Qualified Equity Offerings for cash, up to 35% of the aggregate principal
amount of the Notes issued pursuant to the Indenture may be redeemed at the
Company's option within 90 days of such Qualified Equity Offering, on not less
than 30 days, but not more than 60 days, notice to each Holder of the Notes to
be redeemed, with xxxx contributed to the Company from the cash proceeds of such
Qualified Equity Offering, at a redemption price equal to 110% of the principal
amount, together with accrued and unpaid interest and Liquidated Damages, if
any, thereon to the Redemption Date; provided, however, that immediately
following such redemption not less than 65% of the aggregate principal amount of
the Notes originally issued pursuant to the Indenture on the Issue Date remain
outstanding.
(c) Notice of redemption shall be mailed by first class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address as then shown
upon the registry books of the Registrar. Notes and portions of Notes in
denominations of larger than $1,000 may be redeemed in part but only in integral
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Notes or
portions thereof called for redemption unless the Company defaults in such
payments due on the redemption date
6. Mandatory Redemption. The Company shall not be required to make
mandatory redemption payments with respect to the Notes (however, the Company is
required to offer to repurchase Notes in accordance with the provisions of
Section 4.13 and 4.14 of the Indenture). The Notes shall not have the benefit of
any sinking fund.
7. Offers to Purchase.
(a) Change of Control. In the event that a Change of Control has
occurred, each Holder of Notes shall have the right, at such Holder's option,
pursuant to an offer (subject only to conditions required by applicable law, if
any) by the Company (the "Change of Control Offer"), to require the Company to
repurchase all or any part of such Holder's Notes (provided, that, with respect
to any partial repurchase of such Holder's Notes, the principal amount of such
Notes must be $1,000 or an integral multiple thereof) on a date (the "Change of
Control Purchase Date") that is no later than 35 Business Days after the
occurrence of such Change of Control, at a cash price equal to 101% of the
principal amount thereof (the "Change of Control Purchase Price"), together with
accrued and unpaid interest and Liquidated Damages, if any, to the Change of
Control Purchase Date.
The Change of Control Offer shall be made within 15 Business Days
following a Change of Control and shall remain open for 20 Business Days
following its commencement (the "Change of Control Offer Period"). Upon
expiration of the Change of Control Offer Period, the Company shall promptly
purchase all Notes properly tendered in response to the Change of Control Offer.
(b) Asset Sale. The Company shall not and shall not permit any
of the Company's Subsidiaries to, in one or a series of related transactions,
convey, sell, transfer, assign or otherwise dispose of, directly or indirectly,
any of their property, business or assets, including by merger or consolidation
(in the case of one of the Company's Subsidiaries), and including any sale or
other transfer or issuance of any Equity Interests of any of the Company's
A-7
Subsidiaries whether by the Company or one of the Company's Subsidiaries and
including any sale and leaseback transaction (any of the foregoing, an "Asset
Sale"), unless:
(1) at least 75% of the total consideration for such Asset Sale
or series of related Asset Sales consists of cash or Cash Equivalents;
and
(2) the Company receives or such Subsidiary receives, as
applicable, fair market value for such Asset Sale (which determination
shall be made by the Board of Directors if such Asset Sale is in excess
of $5 million).
For purposes of clause (1) above, total consideration received means the total
consideration received for such Asset Sale, minus the amount of (a) Purchase
Money Indebtedness secured solely by the assets sold and assumed by a
transferee; provided, that the Company is and the Company's Subsidiaries are
fully released from obligations in connection therewith and (b) property that
within 60 days of such Asset Sale is converted into cash or Cash Equivalents;
provided, that such cash and Cash Equivalents shall be treated as Net Cash
Proceeds attributable to the original Asset Sale for which such property was
received.
(c) Within 360 days following such Asset Sale, the Net Cash
Proceeds therefrom (the "Asset Sale Amount") shall be:
(1) used (i) to invest in the purchase of assets (other than
securities) to be used by the Company or a Subsidiary in a Related
Business, (ii) to acquire Capital Stock (other than Disqualified Capital
Stock) of a Subsidiary or a Person engaged in a Related Business that
shall become a Subsidiary immediately upon consummation of such
acquisition, or (iii) in a combination of (i) and (ii) above; or
(2) used to repay, prepay, redeem or repurchase (i) Purchase
Money Indebtedness secured by the asset which was the subject of the
Asset Sale, (ii) Indebtedness outstanding under the Credit Agreement
(including that in the case of a revolver or similar arrangement that
makes credit available, such commitment is permanently reduced by such
amount), or (iii) Indebtedness (other than Disqualified Capital Stock)
of a Wholly Owned Subsidiary (other than Indebtedness owed to the
Company or an Affiliate of the Company) (including that in the case of
a revolver or similar arrangement that makes credit available, such
commitment is permanently reduced by such amount); or
(3) applied to the pro rata repurchase or redemption of the
Notes and the Company's other Indebtedness ranking on a parity with the
Notes and having similar provisions requiring the Company to repurchase
or redeem such Indebtedness with the proceeds from such Asset Sale, pro
rata in proportion to the respective principal amounts (or accreted
values in the case of Indebtedness issued with an original issue
discount) of the Notes and such other Indebtedness then outstanding.
Pending the final application of any Net Cash Proceeds, the Company may
temporarily reduce revolving credit borrowings or otherwise use the Net Cash
Proceeds in any manner that is not prohibited by the Indenture.
(d) The accumulated Net Cash Proceeds from Asset Sales not
applied as set forth in Sections 4.13(b)(1), (2), or (3) of the Indenture shall
A-8
constitute "Excess Proceeds." Within 30 days after the date that the amount of
Excess Proceeds exceeds $15 million, which date shall not be prior to 390 days
after the Asset Sale that generated such Excess Proceeds, the Company shall
apply the Excess Proceeds (the "Asset Sale Offer Amount") to the repurchase of
the Notes and such other Indebtedness ranking on a parity with the Notes and
with similar provisions requiring the Company to make an offer to purchase such
Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer
(subject only to conditions required by applicable law, if any), pro rata in
proportion to the respective principal amounts (or accreted values in the case
of Indebtedness issued with an original issue discount) of the Notes and such
other Indebtedness then outstanding, (the "Asset Sale Offer") at a purchase
price of 100% of the principal amount (or accreted value in the case of
Indebtedness issued with an original issue discount) (the "Asset Sale Offer
Price") together with accrued and unpaid interest and Liquidated Damages, if
any, to the date of payment. Each Asset Sale Offer shall remain open for 20
Business Days following its commencement (the "Asset Sale Offer Period").
(e) Upon expiration of the Asset Sale Offer Period, the Company
shall apply the Asset Sale Offer Amount plus an amount equal to accrued and
unpaid interest and Liquidated Damages, if any, to the purchase of all
Indebtedness properly tendered in accordance with the provisions hereof (on a
pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all
Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued
interest and Liquidated Damages, if any). To the extent that the aggregate
amount of Notes and such other pari passu Indebtedness tendered pursuant to an
Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use
any remaining Net Cash Proceeds as otherwise permitted by this Indenture and
following the consummation of each Asset Sale Offer the Excess Proceeds amount
shall be reset to zero.
8. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, it need not
exchange or register the transfer of any Notes for a period of 15 days before a
selection of Notes to be redeemed or during the period between a Record Date and
the corresponding Interest Payment Date.
9. Persons Deemed Owners. The registered Holder of a Note may be treated
as its owner for all purposes.
10. Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture, the Notes or the Parent Guarantee may be amended or supplemented with
the consent of the Holders of at least a majority in principal amount of the
then outstanding Notes, and any existing Default or compliance with any
provision of the Indenture, the Notes or the Parent Guarantee may be waived with
the consent of the Holders of a majority in principal amount of the then
outstanding Notes. Without the consent of any Holder of a Note, the Indenture,
the Notes or the Parent Guarantee may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Notes in
addition to or in place of certificated Notes, to provide for the assumption of
the Company's obligations to Holders of the Notes in case of a merger or
consolidation, to provide for additional Guarantors as set forth in the
Indenture or for the release or assumption of Guarantees in compliance with the
Indenture, to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the
rights under the Indenture of any such Holder, to comply with the provisions of
A-9
the Depositary, Euroclear or Clearstream or the Trustee with respect to the
provisions of the Indenture or the Notes relating to transfers and exchanges of
Notes or beneficial interests therein, or to comply with the requirements of the
Commission in order to effect or maintain the qualification of the Indenture
under the TIA or to provide for the issuance of Additional Notes in accordance
with the limitations set forth in the Indenture as of the date thereof.
11. Defaults and Remedies. The Indenture provides that each of the
following constitutes an Event of Default:
(1) the Company's failure to pay any installment of interest (or
Liquidated Damages, if any) on the Notes as and when the same becomes
due and payable and the continuance of any such failure for 30 days;
(2) the Company's failure to pay all or any part of the
principal, or premium, if any, on the Notes when and as the same becomes
due and payable at maturity, redemption, by acceleration or otherwise,
including, without limitation, payment of the Change of Control
Purchase Price or the Asset Sale Offer Price, on Notes validly tendered
and not properly withdrawn pursuant to a Change of Control Offer or
Asset Sale Offer, as applicable;
(3) the Company's failure or the failure by any of the Company's
Subsidiaries to observe or perform any other covenant or agreement
contained in the Notes or the Indenture, and, except for the provisions
of Sections 4.9, 4.13, 4.14 and 5.1 thereunder and the continuance of
such failure for a period of 30 days after written notice is given to
the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in aggregate principal amount of the Notes
outstanding;
(4) a court having jurisdiction in the premises enters a decree
or order for (A) relief in respect of the Company or any Significant
Subsidiary in an involuntary case under any applicable Bankruptcy Law
now or hereafter in effect, (B) appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Company or any Significant Subsidiary or for all or substantially all
of the property and assets of the Company or any Significant Subsidiary
or (C) the winding up or liquidation of the affairs of the Company or
any Significant Subsidiary and, in each case, such decree or order
shall remain unstayed and in effect for a period of 60 consecutive
days; or
(5) the Company or any Significant Subsidiary (A) commences a
voluntary case under any applicable Bankruptcy Law now or hereafter in
effect, or consents to the entry of an order for relief in an
involuntary case under any such law, (B) consents to the appointment of
or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially all of the property
and assets of the Company or any Significant Subsidiary or (C) effects
any general assignment for the benefit of creditors.
(6) a default in the Company's Indebtedness or the Indebtedness
of any of the Company's Subsidiaries with an aggregate amount
outstanding in excess of $20 million (a) resulting from the failure to
pay principal at maturity or (b) as a result of which the maturity of
such Indebtedness has been accelerated prior to its stated maturity; and
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(7) final unsatisfied judgments not covered by insurance
aggregating in excess of $10 million, at any one time rendered against
the Company or any of the Company's Subsidiaries and not stayed, bonded
or discharged within 60 days.
12. Trustee Dealings with Company. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not the Trustee.
13. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator or stockholder (direct or indirect) of the
Company or the Parent (or any such successor entity), as such, shall have any
liability for any obligations of the Company or Parent under the Notes, the
Parent Guarantee or the Indenture or for any claim based on, in respect of, or
by reason of, such obligations or their creation, except in their capacity as an
obligor or Guarantor of the Notes in accordance with the Indenture. Each Holder
by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes.
14. Authentication. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
15. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
16. Additional Rights of Holders of Transfer Restricted Notes.6 In
addition to the rights provided to Holders of Notes under the Indenture, Holders
of Transfer Restricted Notes shall have all the rights set forth in the
Registration Rights Agreement dated as of the date of the Indenture, among the
Company, Parent and the Initial Purchasers (the "Registration Rights
Agreement").
17. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon, and any such redemption shall not
be affected by any defect in or omission of such numbers.
18. Notation of Guarantee. As more fully set forth in the Indenture, to
the extent permitted by law, Parent, in accordance with Article X of the
Indenture, unconditionally guarantees, to each Holder of a Note authenticated
and delivered by the Trustee and to the Trustee and its successors and assigns,
that:
By its execution hereof, Parent acknowledges and agrees that it receives
substantial benefits from the Company and that it is providing its Guarantee for
good and valuable consideration, including, without limitation, such substantial
benefits and services. Accordingly, subject to the provisions of Article X of
the Indenture, Parent hereby unconditionally guarantees on a senior basis to
_________________________
6 To be included only on Transfer Restricted Notes.
A-11
each Holder of a Note authenticated and delivered by the Trustee and its
successors and assigns that: (i) the principal of, premium, if any, and interest
and Liquidated Damages, if any, on the Notes shall be duly and punctually paid
in full when due, whether at maturity, by acceleration, call for redemption,
upon a Change of Control Offer, upon an Asset Sale Offer or otherwise, and
interest on overdue principal, premium, if any, Liquidated Damages, if any, and
to the extent permitted by law) interest on any interest, if any, on the Notes
and all other obligations of the Company to the Holders or the Trustee hereunder
or under the Notes (including fees, expenses or other) shall be promptly paid in
full or performed, all in accordance with the terms hereof; and (ii) in case of
any extension of time of payment or renewal of any Notes or any of such other
obligations, the same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration, call for redemption, upon a Change of Control, upon
an Asset Sale Offer or otherwise, subject, however, in the case of clauses (i)
and (ii) above, to the limitations set forth in Section 10.5 of the Indenture
(collectively, the "Guarantee Obligations").
When a successor assumes all the obligations of its predecessor under
the Notes and the Indenture, the predecessor may be released from those
obligations.
19. Governing Law. THE INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING,
WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW AND NEW YORK CIVIL LAWS AND RULES 327(b).
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture [and/or the Registration Rights
Agreement].7 Requests may be made to:
Xxxxx'x Corporation and
Xxxxx'x Holdings, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxxx, Xxxxx Xxxxxxxx 00000-9966
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
_________________________
7 To be included only on Transfer Restricted Notes.
A-12
Assignment Form
To assign this Note, fill in the form below: (I) or (We) assign and transfer
this Note to
_______________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
_______________________________________________________________________________
Date: _________________________
Your Signature:____________________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*
_______________________________________________________________________________
*NOTICE: The Signature must be guaranteed by an Institution which is a member of
one of the following recognized signature Guarantee Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange
Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP); or
(iv) in such other guarantee program acceptable to the Trustee.
A-13
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.13 or Section 4.14 of the Indenture, check the box below:
[ ] Section 4.13 [ ] Section 4.14
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.13 or Section 4.14 of the Indenture, state the
amount you elect to have purchased (in denominations of $1,000 only, except if
you have elected to have all of your Notes purchased): $___________
Date: _________________________
Your Signature: ___________________________________
(Sign exactly as your name appears on the Note)
Social Security or Tax Identification No.:______________
Signature Guarantee*
_______________________________________________________________________________
*NOTICE: The Signature must be guaranteed by an Institution which is a member of
one of the following recognized signature Guarantee Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange
Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP); or
(iv) in such other guarantee program acceptable to the Trustee.
A-14
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE8
The following exchanges of an interest in this Global Note for an
interest in another Global Notes or for a Definitive Note, or exchanges of an
interest in another Global Note or Definitive Note for an interest in this
Global Note, have been made:
Amount of Signature of
Decrease in Amount of Principal Amount of Authorized
Principal Amount Increase in this Global Note Signatory of
of Principal Amount Following Such Trustee or Note
Date of Exchange this Global Note of this Global Note Decrease (or Increase) Custodian
---------------- ---------------- ------------------- ---------------------- ---------
_________________________
8 This should be included only if the Note is issued in global form.
A-15
GUARANTEE
Xxxxx'x Corporation (hereinafter referred to as "Parent,"
which term includes any successors or assigns under the Indenture, dated the
date hereof, among Parent, the Company (defined below) and U.S. Bank National
Association, as trustee (the "Indenture")), has irrevocably fully and
unconditionally guaranteed on a senior basis the Guarantee Obligations (as
defined in Section 10.1 of the Indenture), which include (i) the due and
punctual payment of the principal of, premium, if any, and interest and
Liquidated Damages, if any, on the 10% Senior Notes due 2012 (the "Notes") of
Denny's Holdings, Inc., a New York corporation (the "Company"), whether at
maturity, by acceleration, call for redemption, upon a Change of Control Offer,
upon an Asset Sale Offer or otherwise, the due and punctual payment of interest
on the overdue principal and premium, if any, and (to the extent permitted by
law) interest on any interest on the Notes, and the due and punctual performance
of all other obligations of the Company, to the Holders or the Trustee all in
accordance with the terms set forth in Article X of the Indenture, and (ii) in
case of any extension of time of payment or renewal of any Notes or any such
other obligations, that the same shall be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration, call for redemption, upon a Change of Control
Offer, upon an Asset Sale Offer, or otherwise.
The obligations of Parent to the Holders and to the Trustee
pursuant to this Guarantee and the Indenture are expressly set forth in Article
X of the Indenture and reference is hereby made to such Indenture for the
precise terms of this Guarantee.
No past, present or future director, officer, employee,
incorporator or stockholder (direct or indirect) of Parent (or any such
successor entity), as such, shall have any liability for any obligations of
Parent under this Guarantee or the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation, except in their
capacity as an obligor or Guarantor of the Notes in accordance with the
Indenture.
This is a continuing Guarantee and shall remain in full force
and effect and shall be binding upon Parent and its successors and assigns until
full and final payment of all of the Company's obligations under the Notes and
Indenture or until released or legally defeased or discharged in accordance with
the Indenture and shall inure to the benefit of the successors and assigns of
the Trustee and the Holders, and, in the event of any transfer or assignment of
rights by any Holder or the Trustee, the rights and privileges herein conferred
upon that party shall automatically extend to and be vested in such transferee
or assignee, all subject to the terms and conditions hereof. This is a Guarantee
of payment and performance and not of collectibility.
This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon which this
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
The obligations of Parent under this Guarantee shall be
limited to the extent necessary to insure that it does not constitute a
fraudulent conveyance under applicable law.
THE TERMS OF ARTICLE X OF THE INDENTURE ARE INCORPORATED
HEREIN BY REFERENCE.
A-16
Capitalized terms used herein have the same meanings given in
the Indenture unless otherwise indicated.
IN WITNESS WHEREOF, Xxxxxx has caused this instrument to be
duly executed.
Dated: _____________
Xxxxx'x Corporation
By:
---------------------------------
Name:
Title:
A-17
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Xxxxx'x Holdings, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Department
Re: 10% Senior Notes due 2012
Dear Sirs:
Reference is hereby made to the Indenture, dated as of October
5, 2004 (the "Indenture"), among Xxxxx'x Holdings, Inc., as issuer (the
"Company"), Xxxxx'x Corporation, as guarantor ("Parent") and U.S. Bank National
Association, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture. ______________, (the
"Transferor") owns and proposes to transfer the Note[s] or interest in such
Note[s] specified in Annex A hereto, in the principal amount of $___________ in
such Note[s] or interests (the "Transfer"), to __________ (the "Transferee"), as
further specified in Annex A hereto. In connection with the Transfer, the
Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] Check if Transferee will take delivery of a beneficial interest in the
144A Global Note or a Definitive Note Pursuant to Rule 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any State of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
shall be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
2. [ ] Check if Transferee will take delivery of a beneficial interest in the
Regulation S Global Note or a Definitive Note pursuant to Regulation S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and, accordingly, the Transferor hereby
further certifies that (i) the Transfer is not being made to a person in the
United States and (x) at the time the buy order was originated, the Transferee
was outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
B-1
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Distribution Compliance Period, the transfer is not being made
to a U.S. Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser) and the interest transferred shall be held immediately
thereafter through Euroclear or Clearstream. Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note shall be subject to the restrictions on
Transfer enumerated in the Private Placement Legend printed on the Regulation S
Global Note and/or the Definitive Note and in the Indenture and the Securities
Act.
3. [ ] Check and complete if Transferee will take delivery of a beneficial
interest in a Definitive Note pursuant to any provision of the Securities Act
other than Rule 144A or Regulation S. The Transfer is being affected in
compliance with the transfer restrictions applicable to beneficial interests in
Restricted Global Notes and Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act and any applicable blue sky securities laws
of any State of the United States, and accordingly the transferor hereby further
certifies that (check one):
(a) [ ] Such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act; or
(b) [ ] Such Transfer is being effected to the Company or a
subsidiary thereof; or
(c) [ ] Such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with
the prospectus delivery requirements of the Securities Act; or
(d) [ ] such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or
Rule 904, and the Transferor hereby further certifies that it has not
engaged in any general solicitation within the meaning of Regulation D
under the Securities Act and the Transfer complies with the transfer
restrictions applicable to beneficial interests in a Restricted Global
Note or Restricted Definitive Notes and the requirements of the
exemption claimed, which certification is supported by (1) a
certificate executed by the Transferee in a form of Exhibit D to the
Indenture and (2) if such Transfer is in respect of a principal amount
of Notes at the time of transfer of less than $250,000, an Opinion of
Counsel provided by the Transferor or the Transferee (a copy of which
the Transferor has attached to this certification and provided to the
Company, which has confirmed its acceptability), to the effect that
such Transfer is in compliance with the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of
the Indenture, the Definitive Note shall be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the
Definitive Notes and in the Indenture and the Securities Act.
B-2
4. [ ] Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) [ ] Check if Transfer is Pursuant to Rule 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any State of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture and the Securities Act.
(b) [ ] Check if Transfer is Pursuant to Regulation S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
State of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture
and the Securities Act.
(c) [ ] Check if Transfer is Pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
B-3
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company.
________________________________________________ Dated _______________________
[Insert Name of Transferor]
By: ____________________________
Name:
Title:
B-4
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _______), or
(ii) [ ] Regulation S Global Note (CUSIP ), or
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP ), or
(ii) [ ] Regulation S Global Note (CUSIP ), or
(iii) [ ] Unrestricted Global Note (CUSIP ); or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-5
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Denny's Holdings, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Department
Re: 10% Senior Notes due 2012
Dear Sirs:
Reference is hereby made to the Indenture, dated as of October
5, 2004 (the "Indenture"), between Xxxxx'x Holdings, Inc., as issuer (the
"Company"), Xxxxx'x Corporation, as guarantor ("Parent") and U.S. Bank National
Association, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
____________, (the "Owner") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount of
$____________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial
Interests in a Restricted Global Note for Unrestricted Definitive Notes or
Beneficial Interests in an Unrestricted Global Note.
(a) [ ] Check if Exchange is from beneficial interest
in a Restricted Global Note to beneficial interest in an Unrestricted Global
Note. In connection with the Exchange of the Owner's beneficial interest in a
Restricted Global Note for a beneficial interest in an Unrestricted Global Note
in an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Global Notes and pursuant to and in accordance with the United
States Securities Act of 1933, as amended (the "Securities Act"), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities laws of any State
of the United States.
(b) [ [ Check if Exchange is from beneficial interest
in a Restricted Global Note to Unrestricted Definitive Note. In connection with
the Exchange of the Owner's beneficial interest in a Restricted Global Note for
an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive
Note is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being
C-1
acquired in compliance with any applicable blue sky securities laws of any State
of the United States.
(c) [ ] Check if Exchange is from Restricted Definitive
Note to beneficial interest in an Unrestricted Global Note. In connection with
the Owner's Exchange of a Restricted Definitive Note for a beneficial interest
in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any State
of the United States.
(d) [ ] Check if Exchange is from Restricted Definitive
Note to Unrestricted Definitive Note. In connection with the Owner's Exchange of
a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired for the
Owner's own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to Restricted Definitive
Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Note is being acquired in compliance with
any applicable blue sky securities laws of any State of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial
Interests in Restricted Global Notes for Restricted Definitive Notes or
Beneficial Interests in Restricted Global Notes
(a) [ ] Check if Exchange is from beneficial interest
in a Restricted Global Note to Restricted Definitive Note. In connection with
the Exchange of the Owner's beneficial interest in a Restricted Global Note for
a Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) [ ] Check if Exchange is from Restricted Definitive
Note to beneficial interest in a Restricted Global Note. In connection with the
Exchange of the Owner's Restricted Definitive Note for a beneficial interest in
the: [CHECK ONE] ? 144A Global Note or ? Regulation S Global Note with an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any State of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial interest
issued will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.
C-2
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company.
_________________________
[Insert Name of Owner]
By:_______________________
Name:
Title:
Dated:________________
C-3
EXHIBIT D
FORM OF CERTIFICATE FROM ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
Denny's Holdings, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Department
Re: 10% Senior Notes due 2012
Dear Sirs:
Reference is hereby made to the Indenture, dated as of October
5, 2004 (the "Indenture"), between Xxxxx'x Holdings, Inc., as issuer (the
"Company"), Xxxxx'x Corporation, as guarantor ("Parent") and U.S. Bank National
Association, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________
aggregate principal amount of: (a) a beneficial interest in a Global Note, or
(b) a Definitive Note, we confirm that:
1 .We understand that any subsequent transfer of the Notes or
any interest therein is subject to certain restrictions and conditions set forth
in the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes and any interest
therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell the Notes or any
interest therein, we will do so only (A) to the Company or any of its respective
subsidiaries, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to you and to the
Company a signed letter substantially in the form of this letter and, if the
proposed transfer is in respect of an aggregate principal amount of Notes of
less than $250,000, an Opinion of Counsel in form reasonably acceptable to the
Company to the effect that such transfer is in compliance with the Securities
Act, (D) outside the United States in accordance with Rule 904 of Regulation S
under the Securities Act, (E) pursuant to the provisions of Rule 144 under the
Securities Act, (F) in accordance with another exemption from the registration
requirements of the Securities Act (and based upon an opinion of counsel
acceptable to the Company) or (G) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
person purchasing the Definitive Note from us in a transaction meeting the
requirements of clauses (A) through (F) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
E-1
3. We understand that, on any proposed resale of the
Notes or beneficial interest therein, we will be required to furnish to you and
the Company such certifications, legal opinions and other information as you and
the Company may reasonably require to confirm that the proposed sale complies
with the foregoing restrictions. We further understand that the Notes purchased
by us will bear a legend to the foregoing effect. We further understand that any
subsequent transfer by us of the Notes or beneficial interest therein acquired
by us must be effected through one of the Initial Purchasers.
4. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes, and
we and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.
5. We are acquiring the Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
E-2
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
___________________________________________ Dated: ___________________________
[Insert Name of Accredited Investor]
By: ____________________________
Name:
Title:
E-3
