UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
T-3
APPLICATION
FOR QUALIFICATION OF INDENTURES
UNDER
THE TRUST INDENTURE ACT OF 1939
____________________
SPECTRUM
BRANDS, INC.
(Name
of Applicant)
Six
Concourse Parkway
Suite
3300
Atlanta,
Georgia 30328
(Address
of Principal Executive Offices)
SECURITIES
TO BE ISSUED UNDER THE
INDENTURES
TO BE QUALIFIED
|
Title
of Class
|
Amount
|
|
Variable
Rate Toggle Interest Pay-In-Kind Senior Subordinated Notes due
2013
|
$350
million
|
Approximate
date of proposed public offering:
As
soon
as practicable after the date of this Application for
Qualification.
|
Name
and address of agent for service:
Randall
J. Steward
Executive
Vice-President
and
Chief Financial Officer
Spectrum
Brands, Inc.
Six
Concourse Parkway
Suite
3300
Atlanta,
Georgia 30328
(770)
829-6200
|
Copies
to be sent to:
Margaret
A. Brown, Esq.
Skadden,
Arps, Slate, Meagher & Flom LLP
One
Beacon Street
31st
Floor
Boston,
MA 02108
(617)
573-4800
|
The
obligor hereby amends this application for qualification on such date or dates
as may be necessary to delay its effectiveness until (i) the 20th day after
the
filing of an amendment which specifically states that it shall supersede this
application, or (ii) such date as the Commission, acting pursuant to Section
307(c) of the Trust Indenture Act of 1939, may determine upon the written
request of the obligor.
| 1. |
General
Information.
|
(a)
Spectrum Brands, Inc. (“Spectrum” or the “Company”) is a Wisconsin corporation.
(b)
Spectrum (formerly Rayovac Corporation) is organized under the laws of the
State
of
Wisconsin.
|
2.
|
Securities
Act Exemption Applicable.
|
The
Company is offering (the “Exchange Offer”) to exchange $1,000 principal amount
of Variable Rate Toggle Interest Pay-In-Kind Senior Subordinated Notes due
2013
(the “New Notes”) to be issued pursuant to a new indenture (the “New Indenture”)
for each $1,000 principal amount of the Company’s 8 1/2% Senior Subordinated
Notes due 2013 (CUSIP No. 755081AD8) issued by the Company and guaranteed by
Tetra Holding (US), Inc., ROV Holding, Inc., ROVCAL, Inc., United Industries
Corporation, Schultz Company, Spectrum Neptune US Holdco Corporation, United
Pet
Group, Inc., DB Online, LLC, Southern California Foam, Inc., Aquaria, Inc.,
Aquarium Systems, Inc., and Perfecto Manufacturing, Inc. (the “Existing Notes”)
The Company will also pay accrued and unpaid interest on such principal amount
of Existing Notes up to the date of exchange. In connection with the Exchange
Offer, we are also soliciting consents to amendments and a waiver (such
amendments and waiver, the “Proposed Amendments”) to the indenture, dated as of
September 30, 2003, as supplemented (the “Indenture”), governing the Existing
Notes which amendments, subject to consummation of the Exchange Offer, would
eliminate substantially all of the restrictive covenants and certain of the
default provisions of the Indenture, and which waiver would waive any claims
or
alleged claims that may be made with respect to any Alleged Default (as defined
in the Offering Circular) or existing default under the Indenture. The complete
terms of the Exchange Offer are contained in the Offering Circular and Consent
Solicitation Statement, dated March [ ], 2007 (the “Offering Circular”), and
related documents incorporated by reference herein as Exhibit T3E.
As
the
New Notes and interest on the Existing Notes are proposed to be offered for
exchange by the Company with its existing security holders exclusively and
solely for outstanding securities of the Company, the transaction is exempt
from
registration under the Securities Act of 1933, as amended (the “Securities
Act”), pursuant to the provisions of Section 3(a)(9) thereof. No sales of
securities of the same class as the New Notes have been or are to be made by
the
Company by or through an underwriter at or about the same time as the Exchange
Offer for which the exemption is claimed. No consideration has been, or is
to be
given, directly or indirectly, to any person in connection with the transaction,
except for the customary payments to be made in respect of preparation,
printing, and mailing of the Offering Circular and related documents and the
engagement of Global Bondholder Services Corporation as Information Agent,
U.S.
Bank National Association as Exchange Agent for the Company and Banc of America
Securities LLC and Goldman, Sachs & Co. as financial advisors to the
Company.
No
holder of the outstanding securities has made or will be requested to make
any
cash payment to the Company in connection with the Exchange Offer.
2
AFFILIATIONS
|
3.
|
Affiliates.
|
The
following is a list of affiliates of the Company as of the date of this
application. The voting securities of each of these entities are owned 100%
by
its immediate parent unless indicated otherwise. Where an immediate parent
owns
less than 100% of the stock is owned by unaffiliated third parties, unless
indicated otherwise.
|
Name
of Company
|
Jurisdiction
of Organization
|
|
|
Anabasis
Handelsgesellschaft mbH (31)
|
Germany
|
|
|
Aquaria,
Inc. (16)
|
California
|
|
|
Aquarium
Systems, Inc. (18)
|
Delaware
|
|
|
Brisco
Electronics B.V.(32)
|
Netherlands
|
|
|
DB
Online, LLC (16)
|
Hawaii
|
|
|
Distribuidora
Rayovac Guatemala, S.A. (43)
|
Guatemala
|
|
|
Distribuidora
Rayovac Honduras, S.A. (46)
|
Honduras
|
|
|
Distribuidora
Ray-O-Vac/Varta, S.A. De C.V. (47)
|
Mexico
|
|
|
Eight
in One GmbH (23)
|
Germany
|
|
|
Ipopojuca
Empreendimentos E Participacoes S.A. (11)
|
Brazil
|
|
|
Microlite
S. A. (10)
|
Brazil
|
|
|
Minera
Vidaluz, S.A. De C.V. (1)
|
Mexico
|
|
|
Ningbo
Baowang Battery Co., Ltd. (7)
|
China
|
|
|
Perfecto
Manufacturing, Inc (17)
|
Delaware
|
|
|
Pile
D'alsace S.A.S. (27)
|
France
|
|
|
Rayovac
(UK) Limited (27)
|
UK
|
|
|
Rayovac
Argentina S.R.L. (51)
|
Argetina
|
|
|
Rayovac
Brasil Participacoes Ltda. (38)
|
Brazil
|
|
|
Rayovac
Chile Sociedad Comercial Ltda. (50)
|
Chile
|
|
|
Rayovac
Costa Rica, S.A. (44)
|
Costa
Rica
|
|
|
Ray-O-Vac
De Mexico, S.A. De C.V. (48)
|
Mexico
|
|
|
Rayovac
Dominican Republic, S.A. (41)
|
Dominican
Rep.
|
|
|
Rayovac
El Salvador, S.A. De C.V. (40)
|
El
Salvador
|
|
|
Rayovac
Europe B.V. (27)
|
Netherlands
|
|
|
Rayovac
Europe GmbH (22)
|
Germany
|
|
|
Rayovac
Europe Limited (33)
|
UK
|
|
|
Rayovac
Far East Limited (37)
|
Hong
Kong
|
|
|
Rayovac
Foreign Sales Corporation (1) (36)
|
Barbados
|
|
|
Rayovac
Guatemala, S.A. (42)
|
Guatemala
|
|
|
Rayovac
Honduras, S.A. (45)
|
Honduras
|
|
|
Rayovac
Overseas Corp. (2)
|
Cayman
|
|
|
Rayovac
PRC(6)
|
Cayman
|
|
|
Rayovac
Venezuela, S.A. (26)
|
Venezuela
|
|
|
Rayovac-VARTA
S.A. (49)
|
Colombia
|
|
|
Rayovac-VARTA
Soluciones Limitada. (52)
|
Colombia
|
|
|
Remington
Consumer Products (34)
|
UK
|
|
|
Remington
Consumer Products (Ireland) Ltd. (34)
|
Ireland
|
3
|
Name
of Company
|
Jurisdiction
of Organization
|
|
|
Remington
Licensing Corporation (1)(35)
|
Delaware
|
|
|
Remington
Products Australia Pty. Ltd. (2)
|
Australia
|
|
|
Remington
Products GMBH (31)
|
Germany
|
|
|
Remington
Products New Zealand Ltd. (9)
|
New
Zealand
|
|
|
ROV
German General Partner GmbH (27)
|
Germany
|
|
|
ROV
German Limited GmbH(55)
|
Germany
|
|
|
ROV
Holding, Inc (1)
|
Delaware
|
|
|
ROV
International Finance Company(2)
|
Cayman
Islands
|
|
|
ROVCAL,
Inc. (1)
|
California
|
|
|
Schultz
Company (12)
|
Missouri
|
|
|
Southern
California Foam, Inc. (16)
|
California
|
|
|
Spectrum
Brands (Hong Kong) Limited (7)
|
Hong
Kong
|
|
|
Spectrum
Brands (Shenzhen) Ltd. (7)
|
China
|
|
|
Spectrum
Brands Asia (2)
|
Cayman
|
|
|
Spectrum
Brands Canada, Inc.(2)
|
Canada
|
|
|
Spectrum
Brands Europe GmbH (21)
|
Germany
|
|
|
Spectrum
Brands Europe Holding GmbH (2)
|
Germany
|
|
|
Spectrum
Brands HK1 Limited (3)
|
Hong
Kong
|
|
|
Spectrum
Brands HK2 Limited (3)
|
Hong
Kong
|
|
|
Spectrum
Brands Holding B.V. (39)
|
Netherlands
|
|
|
Spectrum
Brands IP, Inc. (8)
|
Ontario
|
|
|
Spectrum
Brands Lux S.a.r.l. (19)
|
Luxemborg
|
|
|
Spectrum
Brands Mauritius Limited (5)
|
Mauritius
|
|
|
Spectrum
Brands Schweiz GmbH (20)
|
Switzerland
|
|
|
Spectrum
China Business Trust (4)
|
China
|
|
|
Spectrum
Neptune CA Holdco Corporation (13)
|
Nova
Scotia
|
|
|
Spectrum
Neptune Holding Company GP, Ltd. (14)
|
Nova
Scotia
|
|
|
Spectrum
Neptune Holding Company, LP (15)
|
Ontario
|
|
|
Spectrum
Neptune US Holdco Corporation (12)
|
Delaware
|
|
|
Tetra
(UK) Limited (34)
|
UK
|
|
|
Tetra
Aquatic Asia Pacific Private Limited (2)
|
Singapore
|
|
|
Tetra
France S.A.S.(29)
|
France
|
|
|
Tetra
GmbH (23)
|
Germany
|
|
|
Tetra
Holding (US), Inc. (1)
|
Delaware
|
|
|
Tetra
Holding GmbH (22)
|
Germany
|
|
|
Tetra
Italia S.r.L. (28)
|
Italy
|
|
|
Tetra
Japan K.K. (2)
|
Japan
|
|
|
United
Industries Corporation (1)
|
Delaware
|
|
|
United
Pet Group, Inc (12)
|
Delaware
|
|
|
VARTA
B.V. (20)
|
Netherlands
|
|
|
VARTA
Baterie Sp.Zo.o (54)
|
Poland
|
|
|
VARTA
Baterie spol. S R.O. (56)
|
Czech
Rep.
|
|
|
VARTA
Batterie Ges.M.B.H. (21)
|
Austria
|
|
|
VARTA
Batterie S.r.L. (27)
|
Italy
|
|
|
VARTA
Consumer Batteries A/S (27)
|
Denmark
|
|
|
VARTA
Consumer Batteries Gmbh & Co. KGAA (30)
|
Germany
|
4
|
Name
of Company
|
Jurisdiction
of Organization
|
|
|
VARTA
Ltd. (34)
|
UK
|
|
|
VARTA
Pilleri Ticaret Ltd. Sirketi (56)
|
Turkey
|
|
|
VARTA
Remington Rayovac d.o.o (25)
|
Bosnia
Herz
|
|
|
VARTA
Remington Rayovac d.o.o (25)
|
Croatia
|
|
|
VARTA
Remington Rayovac Trgovina d.o.o.(25)
|
Slovenia
|
|
|
VARTA
S.A.S.(29)
|
France
|
|
|
VARTA-Hungaria
Kreskedelmi Es Szolgaltato Kft (53)
|
Hungary
|
|
|
ZAO
"Spectrum Brands" Russia (21)
|
Russia
|
|
|
Zoephos
International N.V. (2)
|
Netherlands
Antilles
|
|
|
Zoomedica
Frickhinger GmbH (24)
|
Germany
|
____________________
|
(1) Owned
by Spectrum.
|
|
(2) Owned
by ROV Holding, Inc.
|
|
(3) Owned
by Spectrum Brands Asia.
|
|
(4) Owned
by Spectrum Brands HK1 and Spectrum Brands HK2.
|
|
(5) Owned
by Spectrum China Business Trust.
|
|
(6) Owned
by Spectrum Brands Mauritius Limited.
|
|
(7) Owned
by Rayovac PRC.
|
|
(8) Owned
by Spectrum Brands Canada.
|
|
(9) Owned
by Remington Products Australia Pty Ltd.
|
|
(10) Owned
90.9% by Rayovac Brasil Participcoes Ltda.
Remaining 9.1% owned by Tabriza, an unaffiliated company. In addition,
each of Hartmut Junghahn, Donna Corredera, Randy Steward Luiz Carlos
Sambo
and Carlos Lima own 1 preferred share, which constitute all of
the shares
outstanding.
|
|
(11) Owned
by Microlite S.A.
In
addition, each of Randy Steward, Hartmut Junghahn, Donna Corredera
and
Luiz Carlos Sambo own 1 preferred share, which constitute all of
the
shares outstanding
|
|
(12) Owned
by United Industries Corporation.
|
|
(13) Owned
by Spectrum Neptune U.S. Holdco Corporation.
|
|
(14) Owned
by Spectrum CA Holdco Corporation.
|
|
(15) Owed
by Spectrum Neptune Holding GP, Ltd.
|
|
(16) Owned
by United Pet Group, Inc.
|
|
(17) Owned
by Aquaria, Inc.
|
|
(18) Owned
by Perfecto Manufacturing, Inc.
|
|
(19) Owned
by Spectrum Brands Holding B.V.
|
|
(20) Owned
by Spectrum Brands Lux Sarl.
|
|
(21) Owned
by VARTA B.V.
|
|
(22) Owned
by Spectrum Brands Europe GmbH.
|
|
(23) Owned
by Tetra Holding GmbH.
|
|
(24) Owned
by Tetra GmbH.
|
|
(25) Owned
by VARTA Batterie Ges. m.b.H.
|
|
(26) Owned
by Rayovac Overseas Corp.
|
|
(27) Owned
by Rayovac Europe Gmbh.
|
|
(28) Owned
by VARTA Batterie S.r.L.
|
|
(29) Owned
by Pile d'Alsace S.A.S.
|
5
|
(30) Owned
by ROV German Limited GmbH.
|
|
(31) Owned
by VARTA Consumer Batteries GmbH & Co. KGaA.
|
|
(32) Owned
by Rayovac Europe B.V.
|
|
(33) Owned
by Rayovac (UK) Limited.
|
|
(34) Owned
by Rayovac Europe Limited.
|
|
(35) Owned
50% by Spectrum.
|
|
(36) Owned
99.9% by Spectrum and 1% by ROV Holding Inc.
|
|
(37) Owned
99.9%
by ROV Holding, Inc.
|
|
(38) Owned
99.99%
by ROV Holding, Inc. and 1% by Spectrum.
|
|
(39) Owned
97%
by ROV Holding, Inc. and 3% by Spectrum.
|
|
(40) Owned
94.7% by Rayovac
Overseas Corp. and 5.3% by Rayovac Costa Rica
|
|
(41) Owned
99.99% by Rayovac
Overseas Corp. Each of the following owns one share: Distribuidora
Rayovac
Guatemala, Rayovac Venezuela, Distribuidora Rayovac Honduras, Rayovac
Guatemala, Rayovac Honduras and Rayovac El Salvador.
|
|
(42) Owned
84.21%
by Rayovac Overseas Corp. and 15.79% by Distribuidora Rayovac
Guatemala.
|
|
(43) Owned
99.06%
by Rayovac Overseas Corp. and 0.94% by Rayovac
Guatemala.
|
|
(44) Owned
96.24%
by Rayovac Overseas Corp. and 3.76% by Rayovac Honduras.
|
|
(45) Owned
80.31%
by Rayovac Overseas Corp., 5.31% by Rayovac El Salvador, 5.31%
by Rayovac
Costa Rica, 5.31% by Rayovac Guatemala and 3.76% by Distribuidora
Rayovac
Honduras.
|
|
(46) Owned
80.4%
by Rayovac Overseas Corp., 3.8% by Rayovac Honduras, 5.4% by Rayovac
El
Salvador, 5.2% by Rayovac Costa Rica and 5.2% by Rayovac
Guatemala.
|
|
(47) Owned
99.008% by Rayovac Overseas Corp. and 0.002% by Rayovac
Dominican Republic
|
|
(48) Owned
99.98% by Rayovac Overseas Corp. and each
of James T. Lucke and Rayovac Dominican Republic own less than
0.01%
|
|
(49) Owned
as follows: ROVAC 67%, Rayovac Venezuela 23%, Rayovac Dominican
Republic
9.9%, less than 0.01% by each of Jose Zapata, Kent Hussey, James
Lucke,
Rayovac de Mexico and Rayovac Guatemala
|
|
(50) SPC
owns 0.01%
|
|
(51) Note
21: SPC owns 5%
|
|
(52) Note
22: Less than 0.01% owned by Jose Vicente Zapata, Colombian
counsel
|
|
(53) Note
23: ROV German Limited GmbH owns 1%
|
|
(54) H.P.
Kü bler owns .17%
|
|
(55) Brisco
Electronics owns 0.4%
|
|
(56) Rayovac
Europe Gmbh owns 99.003% and James
T. Lucke owns .007%
|
|
(57) ROV
German Limited GmbH owns 2%
|
MANAGEMENT
AND CONTROL
|
4.
|
Directors
and Executive Officers.
|
The
following table lists the names and offices held by all directors and executive
officers of the Company as of March 9, 2007. The mailing address for each of
the
individuals listed in the following table is:
c/o
Spectrum Brands, Inc.
Six
Concourse Parkway
Suite
3300
Atlanta,
Georgia 30328
(770)
829-6200
|
Name
|
Office
|
||
|
David
|
Jones
|
Chairman
of the Board of Directors and Chief Executive Officer
|
|
|
Randall
|
Steward
|
Executive
Vice President and Chief Financial Officer
|
|
|
Hartmut
|
Junghahn
|
Executive
Vice President, Latin America
|
|
|
Remy
|
Burel
|
President,
Europe/ROW
|
|
|
Kenneth
|
Biller
|
President,
Global Operations
|
|
|
John
|
Heil
|
President,
Global Pet Supplies, Co-Chief Operating Officer
|
|
|
David
|
Lumley
|
President,
World Wide Batteries, Personal Care & Home & Garden, and Co-Chief
Operating Officer
|
|
|
Donna
|
Corredera
|
Senior
Vice President and Chief Financial Officer, Latin
America
|
|
|
Rick
|
Dempsey
|
Senior
Vice President and Chief Information Officer
|
|
|
Andreas
|
Rouve
|
Senior
Vice President, Finance, Chief Financial Officer,
Europe/ROW
|
|
|
Christof
|
Queisser
|
Senior
Vice President, Marketing and Sales, Europe/ROW
|
|
|
James
|
Lucke
|
Senior
Vice President, Secretary and General
Counsel
|
|
6
|
Name
|
Office
|
||
|
Kent
|
Hussey
|
Vice
Chairman and Director
|
|
|
Alfredo
|
Mayne-Nicholls
|
Vice
President, Sales and Marketing, Latin America
|
|
|
Paula
|
Bauer
|
Senior
Vice President
|
|
|
Paul
|
Cheeseman
|
Senior
Vice President
|
|
|
Anthony
|
Genito
|
Senior
Vice President
|
|
|
Patrick
|
Gore
|
Senior
Vice President
|
|
|
Thomas
|
Walzer
|
Senior
Vice President
|
|
|
John
|
Beattie
|
Vice
President
|
|
|
Chad
|
Colony
|
Vice
President
|
|
|
Anthony
|
Cords
|
Vice
President
|
|
|
Dale
|
Einerson
|
Vice
President
|
|
|
Robert
|
Falconi
|
Vice
President
|
|
|
Andrew
|
Fiorenza
|
Vice
President
|
|
|
Steven
|
Fraundorfer
|
Vice
President
|
|
|
Mark
|
Gershenson
|
Vice
President
|
|
|
Joe
|
Gil
|
Vice
President
|
|
|
Jim
|
Huffmyer
|
Vice
President
|
|
|
Ramzi
|
Kanso
|
Vice
President
|
|
|
James
|
Kimble
|
Vice
President
|
|
|
Russell
|
Kohl
|
Vice
President
|
|
|
Randal
|
Lewis
|
Vice
President
|
|
|
Timothy
|
Mead
|
Vice
President
|
|
|
James
|
Patullo
|
Vice
President
|
|
|
Andy
|
Ponte
|
Vice
President
|
|
|
Randall
|
Raymond
|
Vice
President
|
|
|
Kristen
|
Rider
|
Vice
President
|
|
|
Jeffrey
|
Schmoeger
|
Vice
President
|
|
|
Ricky
|
Spurlock
|
Vice
President
|
|
|
John
|
Walker
|
Vice
President
|
|
|
Tom
|
Ramey
|
Vice
President, Asia Pacific
|
|
|
Kevin
|
Brenner
|
President,
Americas Aquatics division of Global Pet
|
|
|
Barry
|
Seenberg
|
Vice
President, Companion Animal
|
|
|
Wolfgang
|
Mollenhauer
|
Vice
President, General Manager, Pet Europe, Far East
|
|
|
John
|
Bowlin
|
Director
|
|
|
Charles
|
Brizius
|
Director
|
|
|
William
|
Carmichael
|
Director
|
|
|
John
|
Lupo
|
Director
|
|
|
Scott
|
Schoen
|
Director
|
|
|
Barbara
|
Thomas
|
Director
|
|
|
Thomas
|
Shepherd
|
Lead
Director
|
|
5.
|
Principal
Owners of Voting
Securities
|
7
Presented
below is certain information regarding each person owning 10% or more of the
voting securities of the Company as of the date of this
Application:
|
Name
|
Complete
Mailing Address
|
Title
of Class Owned
|
Amount
Owned
(includes beneficial ownership) |
Percentage
of Voting Securities Owned
|
|
THL
Parties
c/o
Thomas H. Lee Partners, LP
|
100
Federal Street, 35th
Floor
Boston,
MA 02110
|
Common
Stock
|
12,760,584
(1)
|
24.30%
|
|
Ameriprise
Financial Inc.
|
General
Counsel’s Office 50591 Ameriprise Financial Center
Minneapolis,
MN 55474
|
Common
Stock
|
7,535,376
(2)
|
14.36%
|
|
Charles
A. Brizius
|
c/o
Thomas H. Lee
100
Federal Street, 35th
Floor
Boston,
MA
|
Common
Stock
|
12,760,584 (1)(3)
|
24.30%
|
|
Scott
A. Schoen
|
c/o
Thomas H. Lee
100
Federal Street, 35th
Floor
Boston,
MA
|
12,760,584 (1)(4)
|
24.30%
|
|
(1)
|
Based
in part on information set forth in a Schedule 13D that was filed
with the
SEC on February 17, 2005 (“Schedule 13D”).
|
|
The
THL Parties may be deemed to beneficially own 12,765,584 shares of
Common
Stock pursuant to Securities Exchange Act Rule 13d-3 and 13d-5(b).
The
aggregate number of shares beneficially owned by the THL Parties
is
comprised of (A) 10,593,305 shares directly held by Thomas H. Lee
Equity Fund IV, L.P. (“Equity Fund”), (B) 366,192 shares directly
held by Thomas H. Lee Foreign Fund IV, L.P. (“Foreign Fund”),
(C) 1,031,186 shares directly held by Thomas H. Lee Foreign Fund
IV-B, L.P. (“Foreign Fund B”), (D) 2,785 shares directly held by
Thomas H. Lee Investors Limited Partnership (“THL Investors”),
(E) 68,881 shares directly held by Thomas H. Lee Charitable
Investment L.P. (“Charitable Investment”), (F) 6,006 shares directly
held by THL Equity Advisors IV, LLC and (G) 670,266 shares directly
held by (i) the following managing directors of Thomas H. Lee
Advisors, LLC: David V. Harkins; Scott A. Schoen; Scott M. Sperling;
Anthony J. DiNovi; Thomas M. Hagerty; Seth W. Lawry; Kent R. Weldon;
Todd
M. Abbrecht; Charles A. Brizius; Scott Jaeckel; and Soren Oberg,
and
(ii) the following other parties that are not affiliates of Thomas H.
Lee Partners, L.P., but who acquired his/her shares of Common Stock
as
part of a coinvestment with the other THL Parties: the 1997 Thomas
H. Lee
Nominee Trust; the 1995 Harkins Gift Trust; the Smith Family Limited
Partnership; the Robert Schiff Lee 1988 Irrevocable Trust; Stephen
Zachary
Lee; Charles W. Robins as Custodian for Jesse Lee; C. Hunter Boll;
Warren
C. Smith, Jr.; Terence M. Mullen; Thomas R. Shepherd; Wendy L. Masler;
Andrew D. Flaster; Charles W. Robins and James Westra ((i) and
(ii) are together referred to herein as the “Related Holders”) (the
Equity Fund, Foreign Fund, Foreign Fund B, THL Investors, Charitable
Investment and the Related Holders are collectively referred to herein
as
the “THL Parties”). The aggregate number of beneficially owned shares may
also be deemed to include 5,000 shares subject to options held by
Mr. Shepherd that were exercisable within 60 days of December 4,
2006.
|
8
|
Except
to the extent of a pecuniary interest therein, each of the persons
and
entities comprising the THL Parties expressly disclaims beneficial
ownership of the shares held by each of the other persons and entities
comprising the THL Parties, except: (a) THL Equity Advisors IV LLC
does not disclaim beneficial ownership of shares held by Equity Fund,
Foreign Fund or Foreign Fund B; (b) Management Corp. (as defined
below) does not disclaim beneficial ownership of shares held by THL
Investors; and (c) Thomas H. Lee, an individual U.S. citizen, does
not disclaim beneficial ownership of shares held by the 1997 Thomas
H. Lee
Nominee Trust.
|
|
|
The
THL Parties by virtue of certain relationships, may constitute a
“group”
within the meaning of Rule 13d-5(b) under the Securities Exchange
Act of
1934, as amended. As a member of a group, each person and entity
of the
group may be deemed to beneficially own the shares of Common Stock
beneficially owned by the entire group.
|
|
|
Thomas
H. Lee Advisors, LLC, is the general partner of Thomas H. Lee Partners,
L.P., which is, in turn, the sole member of THL Equity Advisors IV,
LLC,
which is the general partner of each of Equity Fund, Foreign Fund
and
Foreign Fund B. THL Equity Advisors IV, LLC, as sole general partner
of
Equity Fund, Foreign Fund and Foreign Fund B (collectively, the “Advisors
Funds”), may be deemed to share voting and dispositive power with respect
to 11,990,683 shares beneficially owned by the Advisors Funds. The
managing directors of Thomas H. Lee Advisors, LLC also own membership
interests in Thomas H. Lee Advisors, LLC. The managing directors
of Thomas
H. Lee Advisors, LLC share voting and investment control over securities
held by the Advisors Funds and may be deemed to share beneficial
ownership
with respect to the 11,990,683 shares held by the Advisors Funds.
|
|
|
THL
Investment Management Corp. (“Management Corp.”) is the sole general
partner of THL Investors. Seth W. Lawry, Kent R. Weldon, David V.
Harkins,
Scott A. Schoen, Scott M. Sperling, Anthony J. DiNovi and Thomas
M.
Hagerty are officers of Management Corp. The officers of Management
Corp.
exercise voting and investment control over the shares of Company
stock
held by THL Investors and may be deemed to beneficially own the shares
of
Company stock held by THL Investors.
|
|
|
Each
of the Related Holders has obtained beneficial ownership of less
than 1%
of the outstanding shares. Each of the Related Holders has sole voting
and
sole dispositive power with respect to such shares beneficially owned
by
it, except for the 1997 Thomas H. Lee Nominee Trust, the 1995 Harkins
Gift
Trust, the Smith Family Limited Partnership, the Robert Schiff Lee
1988
Irrevocable Trust and Charles W. Robins as Custodian for Jesse Lee.
|
|
|
Thomas
H. Lee, an individual, may be deemed to share voting and dispositive
power
with respect to the shares beneficially held by the 1997 Thomas H.
Lee
Nominee Trust. Mr. Lee does not disclaim beneficial ownership of such
shares.
|
|
|
David
V. Harkins may be deemed to share voting and dispositive power over
shares
held by The 1995 Harkins Gift Trust. Charles W. Robins may be deemed
to
share voting and dispositive power over shares held by him as Custodian
for Jesse Lee and shares held by the Robert Schiff Lee 1988 Irrevocable
Trust. Warren C. Smith, Jr. may be deemed to share voting and dispositive
power over shares held by the Smith Family Limited Partnership. Except
to
the extent of his pecuniary interest therein, Mr. Harkins, Mr. Robins,
Mr. Smith and Mr. Lee each, respectively, disclaims beneficial
ownership of such shares. Thomas H. Lee, an individual, may be deemed
to
share voting and dispositive power over shares held by Charitable
Investment.
|
9
|
This
amount also reflects a grant of 13,666 shares of restricted stock
to
Thomas H. Lee Advisors, LLC reported on a Form 4s filed with the
SEC on
October 18, 2006. These shares are presently held by THL Equity
Advisors IV, LLC. THL Equity Advisors IV, LLC is the direct owner
of these
additional shares and a member of the THL Parties reporting group.
As
such, each member of the group may be deemed to beneficially own
these
shares of Common Stock.
|
|
|
This
amount also reflects grants of 3,646 and 8,297 shares of restricted
stock
granted to Mr. Shepherd as reported on Form 4s filed with the SEC on
October 5, 2005 and October 18, 2006, respectively.
Mr. Shepherd is the direct owner of these additional shares and a
member the THL Parties reporting group. As such, each member of the
group
may be deemed to beneficially own these additional shares of Common
Stock.
|
|
|
(2)
|
Ameriprise
Financial, Inc. has shared dispositive power with respect to 7,535,376
shares. Information is based on a Schedule 13G filed by Ameriprise
Financial, Inc. with the SEC on February 14, 2007.
|
|
(3)
|
5,127
shares are held directly by Mr. Brizius. As discussed in note (2)
above,
Mr. Brizius may be deemed to share beneficial ownership of 12,765,584
shares that may be beneficially owned by the THL Parties, which include
the 5,127 shares held by him directly. Except for shares held by
him
directly or to the extent of a pecuniary interest therein, Mr. Brizius
disclaims beneficial ownership of the shares held by each of the
other
persons and entities comprising the THL Parties.
|
|
(4)
|
30,764
shares are held directly by Mr. Schoen. As discussed in note (2)
above,
Mr. Schoen may be deemed to share beneficial ownership of 12,765,584
shares that may be beneficially owned by the THL Parties, which include
the 30,764 shares held by him directly. Except for shares held by
him
directly, Mr. Schoen disclaims beneficial ownership of the shares
held by
each of the other persons and entities comprising the THL
Parties.
|
UNDERWRITERS
|
6.
|
Underwriters
|
(a) The
following table lists the names and complete mailing addresses of each person
who with three years
prior to the date hereof acted as an underwriter of any securities of the
Company which are outstanding on the date hereof, and the title of each class
of
securities underwritten.
|
Name
|
Mailing
Address
|
Title
of Each Class of Securities Underwritten
|
|
Banc
of America Securities LLC
|
214
N. Tryon Street
17th
Floor
Charlotte,
North Carolina 28255
|
Spectrum
7 3/8% Senior Subordinated Notes due 2015
|
|
Citigroup
Global Markets, Inc.
|
399
Park Ave
New
York, New York 10022
|
Spectrum
7 3/8%
Senior Subordinated Notes due 2015
|
10
|
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
|
4
World Financial Center
New
York,
New York 10080
|
Spectrum
7 3/8% Senior Subordinated Notes due 2015
|
|
ABN
AMRO Incorporated
|
540
West Madison Street
Suite
2514
Chicago,
Illinois 60661
|
Spectrum
7 3/8%
Senior Subordinated Notes due 2015
|
(b) No
person
is acting, or proposed to be acting, as principal underwriter of the New Notes
proposed to be offered pursuant to the New Indenture.
CAPITAL
SECURITIES
|
7.
|
Capitalization
|
(a) As
of March
8,
2007
|
Title
of Class
|
Amount
Authorized
|
Amount
Outstanding
(dollars
in millions)
|
|||||
|
Common
Stock, par value $0.01 per share
|
150,000,000
|
52,534,140
|
|||||
|
Preferred
stock, par value $.01 per share
|
5,000,000
|
0
|
|||||
|
8
1/2% Senior Subordinated Notes due 2013 (1)
|
$
|
350
|
$
|
350
|
|||
|
New
Variable Rate Toggle Interest Pay-In-Kind Senior Subordinated Notes
due
2013 (2)
|
$
|
350
|
$
|
350
|
|||
|
7
3/8% Senior Subordinated Notes due 2015
|
$
|
700
|
$
|
700
|
|||
____________________
(1)
To be
extinguished pursuant to the restructuring.
(2)
To be
issued pursuant to the restructuring.
(b) Voting
Rights
|
(1)
|
Each
holder of common stock entitled to vote at any meeting of stockholders
shall be entitled to one vote for each share of stock held by such
stockholder which has voting power upon the matter in question;
|
|
(2)
|
The
Board of Directors has the authority to issue preferred stock with
voting
rights as it may designate. As of the date of this Application, the
Company has not issued any preferred
stock;
|
|
(3)
|
Holders
of Senior Subordinated Notes generally are not entitled to vote at
any
meeting of stockholders.
|
11
INDENTURE
SECURITIES
|
8.
|
Analysis
of Indenture Provisions
|
The
New
Notes will be issued under an indenture (the “Indenture”) to be dated as of the
consummation of the Exchange Offer and entered into between the Company, the
Company’s subsidiaries, as Guarantors, and Wells Fargo Bank National
Association, as trustee (the “Trustee”). The following analysis is not a
complete description of the Indenture provisions discussed and is qualified
in
its entirety by reference to the terms of the Indenture, the form of which
is
attached as Exhibit T3C hereto and incorporated by reference herein. Spectrum
has not entered into the Indenture as of the date of this filing, and the terms
of the Indenture are subject to change prior to its execution. Capitalized
terms
used below but not defined herein have the meanings assigned to them in the
Indenture.
(a) The
New Notes
|
(i)
|
Events
of Default; Withholding of
Notice
|
Events
of Default in respect of the New Notes include:
|
(1)
|
default
for 30 days in the payment when due of interest on, or Liquidated
Damages
with respect to, the New Notes whether or not prohibited by the
subordination provisions of the Indenture;
|
|
(2)
|
default
in payment when due (whether at maturity, upon acceleration, redemption
or
otherwise) of the principal of, or premium, if any, on the New Notes,
whether or not prohibited by the subordination provisions of the
Indenture;
|
|
(3)
|
failure
by Spectrum or any of its Restricted Subsidiaries to comply with
covenants
and obligations related to (i) the sale by Spectrum or any of its
Restricted Subsidiaries of its or their Assets and the use of the
proceeds
from such sale (Section 4.10 of the Indenture), (ii) the right of
Holders
of the New Notes to require Spectrum to repurchase all or part of
the New
Notes upon a Change in Control of Spectrum (Section 4.14 of the
Indenture), (iii) the sale of all or substantially all of the assets
of
any Guarantor or the merger or consolidation of any Guarantor with
or into
another person (Section 4.20(c) of the Indenture) and (iv) the sale
of all
or substantially all of the assets of any Spectrum or the merger
or
consolidation of Spectrum with or into another person (Section 5.01
of the
Indenture);
|
|
(4)
|
failure
by Spectrum or any of its Restricted Subsidiaries for 60 days after
written notice by the Trustee or Holders representing 25% or more
of the
aggregate principal amount of New Notes outstanding to comply with
any of
the other agreements in the Indenture;
|
12
|
(A)
|
default
under any mortgage, indenture or instrument under which there may
be
issued or by which there may be secured or evidenced any Indebtedness
for
money borrowed by Spectrum or any of its Restricted Subsidiaries
(or the
payment of which is Guaranteed by Spectrum or any of its Restricted
Subsidiaries) whether such Indebtedness or Guarantee now exists,
or is
created after the date of the Indenture, if that default:
|
|
(B)
|
is
caused by a failure to make any payment of principal at the final
maturity
of such Indebtedness (a "Payment Default"); or
|
|
(C)
|
results
in the acceleration of such Indebtedness prior to its express maturity,
|
|
(D)
|
and,
in each case, the principal amount of any such Indebtedness, together
with
the principal amount of any other such Indebtedness under which there
has
been a Payment Default or the maturity of which has been so accelerated,
aggregates $10.0 million or more;
|
|
(5)
|
failure
by Spectrum or any of its Restricted Subsidiaries to pay final judgments
(to the extent such judgments are not paid or covered by insurance
provided by a carrier that has acknowledged coverage
in writing and has the ability to perform) aggregating in excess
of $10.0
million, which judgments are not paid, discharged or stayed for a
period
of 60 days;
|
|
(6)
|
except
as permitted by the Indenture, any Note Guarantee shall be held in
any
judicial proceeding to be unenforceable or invalid or shall cease
for any
reason to be in full force and effect or any Guarantor, or any Person
acting on behalf of any Guarantor, shall deny or disaffirm its obligations
under its Note Guarantee; and
|
|
(7)
|
certain
events of bankruptcy or insolvency with respect to Spectrum, any
Guarantor
or any Significant Subsidiary of Spectrum (or any Restricted Subsidiaries
that together would constitute a Significant Subsidiary).
|
In
the
case of an Event of Default arising from certain events of bankruptcy or
insolvency, with respect to Spectrum, any Guarantor or any Significant
Subsidiary of Spectrum (or any Restricted Subsidiaries that together would
constitute a Significant Subsidiary), all outstanding New Notes will become
due
and payable immediately without further action or notice. If any other Event
of
Default occurs and is continuing, the Trustee or the Holders of at least 25%
in
principal amount of the then outstanding New Notes may declare all the New
Notes
to be due and payable immediately.
13
Holders
of the New Notes may not enforce the Indenture or the New Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a majority
in principal amount of the then outstanding New Notes may direct the Trustee
in
its exercise of any trust or power. The Trustee may withhold from Holders of
the
New Notes notice of any Default or Event of Default (except a Default or Event
of Default relating to the payment of principal or interest or Liquidated
Damages) if it determines that withholding notice is in their interest.
The
Holders of a majority in aggregate principal amount of the New Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of
the
New Notes waive any existing Default or Event of Default and its consequences
under the Indenture except a continuing Default or Event of Default in the
payment of interest or Liquidated Damages on, or the principal of, the New
Notes. The Holders of a majority in principal amount of the then outstanding
New
Notes will have the right to direct the time, method and place of conducting
any
proceeding for exercising any remedy available to the Trustee. However, the
Trustee may refuse to follow any direction that conflicts with law or the
Indenture, that may involve the Trustee in personal liability, or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders of New Notes not joining in the giving of such direction and may take
any other action it deems proper that is not inconsistent with any such
direction received from Holders of New Notes. A Holder may not pursue any remedy
with respect to the Indenture or the New Notes unless:
|
(1)
|
the
Holder gives the Trustee written notice of a continuing Event of
Default;
|
|
(2)
|
the
Holders of at least 25% in aggregate principal amount of outstanding
New
Notes make a written request to the Trustee to pursue the remedy;
|
|
(3)
|
such
Holder or Holders offer the Trustee indemnity satisfactory to the
Trustee
against any costs, liability or expense;
|
|
(4)
|
the
Trustee does not comply with the request within 60 days after receipt
of
the request and the offer of indemnity; and
|
|
(5)
|
during
such 60-day period, the Holders of a majority in aggregate principal
amount of the outstanding New Notes do not give the Trustee a direction
that is inconsistent with the request.
|
However,
such limitations do not apply to the right of any Holder of a Note to receive
payment of the principal of, premium or Liquidated Damages, if any, or interest
on, such Note or to bring suit for the enforcement of any such payment, on
or
after the due date expressed in the New Notes, which right shall not be impaired
or affected without the consent of the Holder.
In
the
case of any Event of Default occurring by reason of any willful action or
inaction taken or not taken by or on behalf of Spectrum with the intention
of
avoiding payment of the premium set forth in Section 3.07 of the Indenture
that
Spectrum would have had to pay if Spectrum then had elected to redeem the New
Notes pursuant to the optional redemption provisions of the Indenture, an
equivalent premium shall also become and be immediately due and payable to
the
extent permitted by law upon the acceleration of the New Notes.
14
|
(ii)
|
Authentication
and Delivery of New Notes; Use of
Proceeds
|
As
set
forth in Section 2.02 of the Indenture, One Officer shall sign the New Notes
for
the Company by manual or facsimile signature.
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 the Indenture.
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.
The
aggregate principal amount of New Notes which may be authenticated and delivered
under the Indenture is unlimited.
The
Trustee may appoint an authenticating agent acceptable to the Company to
authenticate New Notes. An authenticating agent may authenticate New 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.
The
Trustee shall, upon a written order of the Company signed by one Officer,
authenticate New Notes for original issue up to the aggregate principal amount
authorized pursuant to this Indenture.
There
will be no proceeds from the issuance of the New Notes because the New Notes
are
being issued in exchange for the Existing Notes.
Because
the New Notes are being issued in exchange for the Existing Notes, there will
be
no proceeds from the issuance of the New Notes.
|
(iii)
|
Release
and Substitution of Property Subject to the Lien of the
Indenture
|
The
New
Notes are not secured by any lien on property.
|
(iv)
|
Satisfaction
and Discharge of the
Indenture
|
The
Indenture will be discharged and will cease to be of further effect as to all
Notes issued thereunder, when:
|
(1)
|
Either:
|
|
(A)
|
all
Notes that have been authenticated (except lost, stolen or destroyed
Notes
that have been replaced or paid and Notes for whose payment money
has
theretofore been deposited in trust and thereafter repaid to Spectrum)
have been delivered to the Trustee for cancellation; or
|
15
|
(B)
|
all
Notes that have not been delivered to the Trustee for cancellation
have
become due and payable by reason of the making of a notice of redemption
or otherwise or will become due and payable within one year and Spectrum
or any Guarantor has irrevocably deposited or caused to be deposited
with
the Trustee as trust funds in trust solely for the benefit of the
Holders,
cash in U.S. dollars, non-callable Government Securities, or a combination
thereof, in such amounts as will be sufficient without consideration
of
any reinvestment of interest, to pay and discharge the entire indebtedness
on the Notes not delivered to the Trustee for cancellation for principal,
premium and Liquidated Damages, if any, and accrued interest to the
date
of maturity or redemption;
|
|
(2)
|
no
Default or Event of Default shall have occurred and be continuing
on the
date of such deposit or shall occur as a result of such deposit and
such
deposit will not result in a breach or violation of, or constitute
a
default under, any other instrument to which Spectrum or any Guarantor
is
a party or by which Spectrum or any Guarantor is bound;
|
|
(3)
|
Spectrum
or any Guarantor has paid or caused to be paid all sums payable;
and
|
|
(4)
|
Spectrum
has delivered irrevocable instructions to the Trustee under the Indenture
to apply the deposited money toward the payment of the Notes at maturity
or the redemption date, as the case may be.
|
In
addition, Spectrum must deliver an Officers' Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction
and
discharge have been satisfied.
Spectrum
may, at its option and at any time, elect to have all of its obligations
discharged with respect to the outstanding Notes and all obligations of the
Guarantors discharged with respect to their Note Guarantees ("Legal Defeasance")
except for:
|
(1)
|
the
rights of Holders of outstanding Notes to receive payments in respect
of
the principal of, premium, if any, and interest on such Notes when
such
payments are due from the trust fund referred to below;
|
16
|
(2)
|
Spectrum's
obligations with respect to the Notes as specified in Article II
of the
Indenture, including concerning issuing temporary Notes, registration
of
Notes, mutilated, destroyed, lost or stolen Notes and the maintenance
of
an office or agency for payment and money for security payments held
in
trust and for the surrender of Notes for registration of transfer
or for
exchange;
|
|
(3)
|
the
rights, powers, trusts, duties and immunities of the Trustee, and
Spectrum's and the Guarantor's obligations in connection therewith;
and
|
|
(4)
|
the
Legal Defeasance, Covenant Defeasance and Satisfaction and Discharge
provisions of the Indenture.
|
In
addition, Spectrum may, at its option and at any time, elect to have the
obligations of Spectrum and the
Guarantors released with respect to certain covenants that are described in
the
Indenture ("Covenant Defeasance") and thereafter any omission to comply with
those covenants shall not constitute a Default or Event of Default with respect
to the New Notes. In the event Covenant Defeasance occurs, certain events (not
including non-payment, bankruptcy, receivership, rehabilitation and insolvency
events) described under "Events of Default" will no longer constitute Events
of
Default with respect to the New Notes.
In
order
to exercise either Legal Defeasance or Covenant Defeasance:
|
(1)
|
Spectrum
must irrevocably deposit with the Trustee, in trust, for the benefit
of
the Holders of the New Notes, cash in U.S. dollars, non-callable
Government Securities, or a combination thereof, in such amounts
as will
be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, or interest
and
premium and Liquidated Damages, if any, on the outstanding New Notes
on
the stated maturity or on the applicable redemption date, as the
case may
be, and
Spectrum must specify whether the New Notes are being defeased to
maturity
or to a particular redemption date;
|
|
(2)
|
in
the case of Legal Defeasance, Spectrum shall have delivered to the
Trustee
an Opinion of Counsel 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 the Indenture,
there has been a change in the applicable federal income tax law,
in
either case to the effect that, and based thereon such Opinion of
Counsel
shall confirm that, the Holders of the outstanding New Notes will
not
recognize income, gain or loss for federal income tax purposes as
a result
of such Legal Defeasance and will be subject to federal income tax
on the
same amounts, in the same manner and at the same times as would have
been
the case if such Legal Defeasance had not occurred;
|
17
|
(3)
|
in
the case of Covenant Defeasance, Spectrum shall have delivered to
the
Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that the Holders of the outstanding New Notes will not
recognize income, gain or loss for federal income tax purposes as
a result
of such Covenant Defeasance and will be subject to federal income
tax on
the same amounts, in the same manner and at the same times as would
have
been the case if such Covenant Defeasance had not occurred;
|
|
(4)
|
no
Default or Event of Default shall have occurred and be continuing
either:
(a) on the date of such deposit; or (b) or insofar as Events of Default
from bankruptcy or insolvency events are concerned, at any time in
the
period ending on the 123rd
day after the date of deposit;
|
|
(5)
|
such
Legal Defeasance or Covenant Defeasance will not result in a breach
or
violation of, or constitute a default under any material agreement
or
instrument to which Spectrum or any of its Subsidiaries is a party
or by
which Spectrum or any of its Subsidiaries is bound;
|
|
(6)
|
Spectrum
must have delivered to the Trustee an Opinion of Counsel to the effect
that, (1) assuming no intervening bankruptcy of Spectrum or any Guarantor
between the date of deposit and the 123rd
day following the deposit and assuming that no Holder is an "insider"
of
Spectrum under applicable bankruptcy law, after the 123rd
day following the deposit, the trust funds will not be subject to
the
effect of any applicable bankruptcy, insolvency, reorganization or
similar
laws affecting creditors' rights generally, including Section 547
of the
United States Bankruptcy Code and (2) the creation of the defeasance
trust
does not violate the Investment Company Act of 1940;
|
|
(7)
|
Spectrum
must deliver to the Trustee an Officers' Certificate stating that
the
deposit was not made by Spectrum with the intent of preferring the
Holders
of New Notes over the other creditors of Spectrum with the intent
of
defeating, hindering, delaying or defrauding creditors of Spectrum
or
others;
|
|
(8)
|
if
the New Notes are to be redeemed prior to their stated maturity,
Spectrum
must deliver to the Trustee irrevocable instructions to redeem all
of the
New Notes on the specified redemption date; and
|
18
|
(9)
|
Spectrum
must deliver to the Trustee an Officers' Certificate and an Opinion
of
Counsel, each stating that all conditions precedent relating to the
Legal
Defeasance or the Covenant Defeasance have been complied with.
|
|
(v)
|
Evidence
Required to be Furnished by the Company to the Trustee as to Compliance
with the Conditions and Covenants Provided for in the Indenture.
|
Spectrum
is required to deliver to the Trustee annually within 90 days after the end
of
each fiscal year a statement regarding compliance with the Indenture. Upon
becoming aware of any Default or Event of Default, Spectrum is required to
deliver to the Trustee a statement specifying such Default or Event of Default.
The
Company shall also comply with Section 314(a)(4) of the Trust Indenture Act
without regard to any period of grace or requirement of notice and, if [so],
specifying each such default of which such signer has knowledge and the nature
thereof.
|
9.
|
Other
Obligors.
|
The
New
Notes are issued by Spectrum and guaranteed by certain of its subsidiaries
as
set forth below. The mailing address for each of the individuals listed in
the
following table is:
c/o
Spectrum Brands, Inc.
Six
Concourse Parkway
Suite
3300
Atlanta,
Georgia 30328
(770)
829-6200
|
Subsidiary
Guarantors
|
|
Tetra
Holding (US), Inc.
|
|
ROV
Holding, Inc.
|
|
ROVCAL,
Inc.
|
|
United
Industries Corporation
|
|
Schultz
Company
|
|
Spectrum
Neptune US Holdco Corporation
|
|
United
Pet Group, Inc.
|
|
DB
Online, LLC
|
|
Southern
California Foam, Inc.
|
|
Aquaria,
Inc.
|
|
Aquarium
Systems, Inc.
|
|
Perfecto
Manufacturing, Inc.
|
Content
of Application For Qualification
19
This
application for qualification comprises:
(a) Pages
number 1 to 21,
consecutively.
(b) The
statement of eligibility and qualification on Form T-1 of Wells Fargo Bank,
N.A., as Trustee under the Indenture to be qualified (included as Exhibit T3G
hereto).
(c) The
following exhibits in addition to those filed as part of the statement of
eligibility and qualification of each trustee:
List
of
Exhibits
|
Exhibit
Number
|
Exhibit
Description
|
|
Exhibit
99.T3A
|
Amended
and Restated Articles of Incorporation of Spectrum Brands, Inc. (filed
as
Exhibit 3.1 of Spectrum Brands' Quarterly Report on Form 10-Q for
the
fiscal quarter ended April 3, 2005 filed with the Commission on May
13,
2005 and incorporated by reference herein)
|
|
Exhibit
99.T3B
|
Amended
and Restated By-laws of Spectrum Brands, Inc. (filed as Exhibit 3.2
of
Spectrum Brands' Quarterly Report on Form 10-Q for the fiscal quarter
ended April 3, 2005 filed with the Commission on May 13, 2005 and
incorporated by reference herein)
|
|
Exhibit
99.T3C
|
Indenture
between Spectrum Brands, Inc., the Guarantors and Wells Fargo Bank,
N.A.,
as Trustee (filed herewith).
|
|
Exhibit
99.T3D
|
Not
Applicable
|
|
Exhibit
99.T3E
|
Offering
Circular and Consent Solicitation Statement, dated March [ ], 2007
(to be
filed supplementally)
|
|
Exhibit
99.T3F
|
A
cross reference sheet showing the location in the Indenture of the
provisions inserted therein pursuant to Section 310 through 318(a),
inclusive, of the Trust Indenture Act (included as part of Exhibit
T3C
herewith).
|
|
Exhibit
99.T3G
|
Form
T-1 qualifying Wells Fargo Bank, N.A. as Trustee under the Indenture
to be
qualified (filed herewith).
|
20
SIGNATURE
Pursuant
to the requirements of the Trust Indenture Act of 1939, the applicant, Spectrum
Brands, Inc., a corporation organized and existing under the laws of the State
of Wisconsin, has duly caused this application to be signed on its behalf by
the
undersigned, thereunto duly authorized, and its seal to be hereunto affixed
and
attested, all in the City of Atlanta, and State of Georgia, on the 9th
day of
March, 2007.
| (Seal) | SPECTRUM BRANDS, INC. | |
| |
|
|
| By: | /s/ Randall J. Steward | |
|
Randall J. Steward |
||
| Executive
Vice-President and Chief Financial Officer |
||
| Attest: | By: | /s/ James T. Lucke |
|
James T. Lucke |
||
| Senior
Vice-President, Secretary and General Counsel |
||
21
SPECTRUM
BRANDS, INC.
[VARIABLE
RATE TOGGLE INTEREST PAY-IN-KIND SENIOR SUBORDINATED NOTES DUE 2013]
________________________________________________
INDENTURE
Dated
as
of
[
],
2007
________________________________________________
[WELLS
FARGO BANK, N.A.]
Trustee
CROSS-REFERENCE
TABLE*
|
Trust
Indenture Act
Section
|
Indenture
Section
|
|
310(a)(1)
|
7.10
|
|
(a)(2)
|
7.10
|
|
(a)(5)
|
7.10
|
|
(b)
|
7.10
|
|
(c)
|
N.A.
|
|
311(a)
|
7.11
|
|
(b)
|
7.11
|
|
312(a)
|
2.05
|
|
(b)
|
12.03
|
|
(c)
|
12.03
|
|
313(a)
|
7.06
|
|
(b)(2)
|
7.06
|
|
(c)
|
7.06
|
|
(d)
|
7.06
|
|
314(a)
|
4.03
|
|
(c)(1)
|
12.04
|
|
(c)(2)
|
12.04
|
|
(e)
|
12.05
|
|
316(a)(last
sentence)
|
2.09
|
|
(a)(1)(A)
|
6.05
|
|
(a)(1)(B)
|
6.04
|
|
317(a)(1)
|
6.08
|
____________________
*
This
Cross-Reference Table is not part of this Indenture.
TABLE
OF
CONTENTS
|
ARTICLE
I
DEFINITIONS
AND INCORPORATION BY REFERENCE
|
||
|
Section
1.01
|
Definitions
|
1
|
|
Section
1.02
|
Other
Definitions
|
25
|
|
Section
1.03
|
Incorporation
by Reference of Trust Indenture Act
|
25
|
|
Section
1.04
|
Rules
of Construction
|
26
|
|
ARTICLE
II
THE
NOTES
|
||
|
Section
2.01
|
Form
and Dating
|
26
|
|
Section
2.02
|
Execution
and Authentication
|
27
|
|
Section
2.03
|
Registrar
and Paying Agent
|
27
|
|
Section
2.04
|
Paying
Agent to Hold Money in Trust
|
28
|
|
Section
2.05
|
Holder
Lists
|
28
|
|
Section
2.06
|
Transfer
and Exchange
|
28
|
|
Section
2.07
|
Replacement
Notes
|
32
|
|
Section
2.08
|
Outstanding
Notes
|
32
|
|
Section
2.09
|
Treasury
Notes
|
33
|
|
Section
2.10
|
Certificated
Notes
|
33
|
|
Section
2.11
|
Temporary
Notes
|
34
|
|
Section
2.12
|
Cancellation
|
35
|
|
Section
2.13
|
Defaulted
Interest
|
35
|
|
Section
2.14
|
CUSIP
and ISIN Numbers
|
35
|
|
Section
2.15
|
Deposit
of Moneys
|
35
|
|
Section
2.16
|
Computation
of Interest
|
35
|
|
ARTICLE
III
REDEMPTION
AND PREPAYMENT
|
||
|
Section
3.01
|
Notices
to Trustee
|
36
|
|
Section
3.02
|
Selection
of Notes to Be Redeemed
|
36
|
|
Section
3.03
|
Notice
of Redemption
|
36
|
|
Section
3.04
|
Effect
of Notice of Redemption
|
37
|
|
Section
3.05
|
Deposit
of Redemption Price
|
37
|
|
Section
3.06
|
Notes
Redeemed in Part
|
38
|
|
Section
3.07
|
Optional
Redemption
|
38
|
|
Section
3.08
|
Mandatory
Redemption
|
38
|
|
Section
3.09
|
Offer
to Purchase
|
38
|
i
|
ARTICLE
IV
COVENANTS
|
||
|
Section
4.01
|
Payment
of Notes
|
40
|
|
Section
4.02
|
Maintenance
of Office or Agency
|
41
|
|
Section
4.03
|
Reports
|
41
|
|
Section
4.04
|
Compliance
Certificate
|
42
|
|
Section
4.05
|
Taxes
|
42
|
|
Section
4.06
|
Stay,
Extension and Usury Laws
|
42
|
|
Section
4.07
|
Restricted
Payments
|
43
|
|
Section
4.08
|
Dividend
and Other Payment Restrictions Affecting Restricted
Subsidiaries
|
46
|
|
Section
4.09
|
Incurrence
of Indebtedness and Issuance of Preferred Stock
|
48
|
|
Section
4.10
|
Asset
Sales
|
50
|
|
Section
4.11
|
Transactions
with Affiliates
|
52
|
|
Section
4.12
|
Liens
|
54
|
|
Section
4.13
|
Corporate
Existence
|
54
|
|
Section
4.14
|
Offer
to Repurchase upon Change of Control
|
54
|
|
Section
4.15
|
Limitation
on Senior Subordinated Debt
|
55
|
|
Section
4.16
|
Designation
of Restricted and Unrestricted Subsidiaries
|
55
|
|
Section
4.17
|
Payments
for Consent
|
57
|
|
Section
4.18
|
Business
Activities
|
57
|
|
Section
4.19
|
Limitation
on Issuances and Sales of Equity Interests in Restricted
Subsidiaries
|
58
|
|
Section
4.20
|
Additional
Note Guarantees
|
58
|
|
ARTICLE
V
SUCCESSORS
|
||
|
Section
5.01
|
Merger,
Consolidation or Sale of Assets
|
59
|
|
Section
5.02
|
Successor
Corporation Substituted
|
60
|
|
ARTICLE
VI
DEFAULTS
AND REMEDIES
|
||
|
Section
6.01
|
Events
of Default
|
61
|
|
Section
6.02
|
Acceleration
|
63
|
|
Section
6.03
|
Other
Remedies
|
64
|
|
Section
6.04
|
Waiver
of Past Defaults
|
64
|
|
Section
6.05
|
Control
by Majority
|
64
|
|
Section
6.06
|
Limitation
on Suits
|
65
|
|
Section
6.07
|
Rights
of Holders of Notes to Receive Payment
|
65
|
|
Section
6.08
|
Collection
Suit by Trustee
|
65
|
|
Section
6.09
|
Trustee
May File Proofs of Claim
|
65
|
|
Section
6.10
|
Priorities
|
66
|
|
Section
6.11
|
Undertaking
for Costs
|
66
|
|
Section
6.12
|
Restoration
of Rights and Remedies
|
67
|
ii
|
Section
6.13
|
Rights
and Remedies Cumulative
|
67
|
|
Section
6.14
|
Delay
or Omission Not Waiver
|
67
|
|
Section
6.15
|
Record
Date
|
67
|
|
ARTICLE
VII
TRUSTEE
|
||
|
Section
7.01
|
Duties
of Trustee
|
67
|
|
Section
7.02
|
Rights
of Trustee
|
69
|
|
Section
7.03
|
Individual
Rights of Trustee
|
69
|
|
Section
7.04
|
Trustee’s
Disclaimer
|
70
|
|
Section
7.05
|
Notice
of Defaults
|
70
|
|
Section
7.06
|
Reports
by Trustee to the Holders of the Notes
|
70
|
|
Section
7.07
|
Compensation
and Indemnity
|
70
|
|
Section
7.08
|
Replacement
of Trustee
|
71
|
|
Section
7.09
|
Successor
Trustee by Merger, Etc.
|
72
|
|
Section
7.10
|
Eligibility;
Disqualification
|
72
|
|
Section
7.11
|
Preferential
Collection of Claims Against Company
|
73
|
|
ARTICLE
VIII
LEGAL
DEFEASANCE AND COVENANT DEFEASANCE; SATISFACTION AND
DISCHARGE
|
||
|
Section
8.01
|
Option
to Effect Legal Defeasance or Covenant Defeasance
|
73
|
|
Section
8.02
|
Legal
Defeasance and Discharge
|
73
|
|
Section
8.03
|
Covenant
Defeasance
|
74
|
|
Section
8.04
|
Conditions
to Legal Defeasance or Covenant Defeasance
|
74
|
|
Section
8.05
|
Satisfaction
and Discharge of Indenture
|
76
|
|
Section
8.06
|
Survival
of Certain Obligations
|
77
|
|
Section
8.07
|
Acknowledgment
of Discharge by Trustee
|
77
|
|
Section
8.08
|
Deposited
Money and Cash Equivalents to Be Held in Trust; Other Miscellaneous
Provisions
|
77
|
|
Section
8.09
|
Repayment
to Company
|
77
|
|
Section
8.10
|
Indemnity
for Government Securities
|
78
|
|
Section
8.11
|
Reinstatement
|
78
|
|
ARTICLE
IX
AMENDMENT,
SUPPLEMENT AND WAIVER
|
||
|
Section
9.01
|
Without
Consent of Holders of Notes
|
78
|
|
Section
9.02
|
With
Consent of Holders of Notes
|
79
|
|
Section
9.03
|
Compliance
with Trust Indenture Act
|
81
|
|
Section
9.04
|
Revocation
and Effect of Consents
|
81
|
|
Section
9.05
|
Notation
on or Exchange of Notes
|
81
|
|
Section
9.06
|
Trustee
to Sign Amendments, Etc.
|
82
|
iii
|
ARTICLE
X
SUBORDINATION
|
||
|
Section
10.01
|
Agreement
to Subordinate
|
82
|
|
Section
10.02
|
Liquidation;
Dissolution; Bankruptcy
|
82
|
|
Section
10.03
|
Default
on Designated Senior Debt
|
82
|
|
Section
10.04
|
Acceleration
of Securities
|
83
|
|
Section
10.05
|
When
Distribution Must Be Paid Over
|
83
|
|
Section
10.06
|
Notice
by the Company
|
84
|
|
Section
10.07
|
Subrogation
|
84
|
|
Section
10.08
|
Relative
Rights
|
84
|
|
Section
10.09
|
Subordination
May Not Be Impaired by the Company
|
85
|
|
Section
10.10
|
Distribution
or Notice to Representative
|
85
|
|
Section
10.11
|
Rights
of Trustee and Paying Agent
|
85
|
|
Section
10.12
|
Authorization
to Effect Subordination
|
85
|
|
ARTICLE
XI
NOTE
GUARANTEES
|
||
|
Section
11.01
|
Guarantee
|
86
|
|
Section
11.02
|
Subordination
of Note Guarantee
|
87
|
|
Section
11.03
|
Limitation
on Guarantor Liability
|
87
|
|
Section
11.04
|
Execution
and Delivery of Note Guarantee
|
87
|
|
Section
11.05
|
Releases
Following Sale of Assets
|
88
|
|
Section
11.06
|
Additional
Guarantors
|
88
|
|
Section
11.07
|
Notation
Not Required
|
88
|
|
Section
11.08
|
Successors
and Assigns
|
88
|
|
Section
11.09
|
No
Waiver
|
89
|
|
Section
11.10
|
Modification
|
89
|
|
ARTICLE
XII
MISCELLANEOUS
|
||
|
Section
12.01
|
Trust
Indenture Act Controls
|
89
|
|
Section
12.02
|
Notices
|
89
|
|
Section
12.03
|
Communication
by Holders of Notes with Other Holders of Notes
|
90
|
|
Section
12.04
|
Certificate
and Opinion as to Conditions Precedent
|
90
|
|
Section
12.05
|
Statements
Required in Certificate or Opinion
|
91
|
|
Section
12.06
|
Rules
by Trustee and Agents
|
91
|
|
Section
12.07
|
No
Personal Liability of Directors, Officers, Employees and
Stockholders
|
91
|
|
Section
12.08
|
Governing
Law
|
92
|
|
Section
12.09
|
No
Adverse Interpretation of Other Agreements
|
92
|
|
Section
12.10
|
Successors
|
92
|
|
Section
12.11
|
Severability
|
92
|
|
Section
12.12
|
Counterpart
Originals
|
92
|
|
Section
12.13
|
Table
of Contents, Headings, Etc.
|
92
|
iv
EXHIBITS
|
Exhibit
A
|
FORM
OF NOTE
|
|
Exhibit
B
|
FORM
OF NOTE GUARANTEE
|
|
Exhibit
C
|
FORM
OF SUPPLEMENTAL INDENTURE
|
|
Schedule
I
|
GUARANTORS
|
v
INDENTURE
dated as of [ ],
2007
among Spectrum Brands, Inc., a Wisconsin corporation (the “Company”),
the
Guarantors listed in Schedule I hereto and [Wells
Fargo Bank, N.A.],
as
trustee (the “Trustee”).
The
Company, the Guarantors and the Trustee agree as follows for the benefit of
each
other and for the equal and proportionate benefit of the Holders of the
[Variable
Rate Toggle Interest Pay-In-Kind Senior Subordinated Notes due 2013].
ARTICLE
I
DEFINITIONS
AND INCORPORATION BY REFERENCE
Section
1.01 Definitions.
“Acquired
Debt”
means, with respect to any specified Person:
(a) Indebtedness
of any other Person existing at the time such other Person is merged with or
into, or becomes a Subsidiary of, such specified Person, whether or not such
Indebtedness is incurred in connection with, or in contemplation of, such other
Person merging with or into, or becoming a Subsidiary of, such specified Person;
and
(b) Indebtedness
secured by a Lien encumbering any asset acquired by such specified
Person.
“Affiliate”
of
any
specified Person means (a) any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified
Person or (b) any executive officer or director of such specified Person. For
purposes of this definition, “control,” as used with respect to any Person,
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise;
provided
that
beneficial ownership of 10% or more of the Voting Stock of a Person shall be
deemed to be control. For purposes of this definition, the terms “controlling,”
“controlled by” and “under common control with” shall have correlative meanings;
provided
further
that
each of Paula Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs-KG,
Mannheim and ROSATA Grundstücksvermietungsgesellschaft mbH & Co. Object
Dischingen KG, Dusseldorf, shall not be deemed Affiliates of the Company or
any
of its Restricted Subsidiaries solely by virtue of the beneficial ownership
by
the Company or its Restricted Subsidiaries of up to 20% of the Voting Stock
of
each entity.
“Agent”
means
any Registrar, Paying Agent or co-registrar.
1
“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.
“Asset
Sale”
means:
(a) the
sale,
lease, conveyance or other disposition of any property or assets; provided
that the
sale, conveyance or other disposition of all or substantially all of the assets
of the Company and its Restricted Subsidiaries, taken as a whole, shall be
governed by the provisions of Section 4.14 and/or Section 5.01 and not by the
provisions of Section 4.10; and
(b) the
issuance of Equity Interests by any of the Company’s Restricted Subsidiaries or
the sale by the Company or any Restricted Subsidiary of Equity Interests in
any
of its Subsidiaries.
Notwithstanding
the preceding, the following items shall be deemed not to be Asset
Sales:
(i) any
single transaction or series of related transactions that involves assets having
a fair market value of less than $5.0 million;
(ii) a
transfer of assets between or among the Company and its Restricted
Subsidiaries;
(iii) an
issuance of Equity Interests by a Restricted Subsidiary to the Company or to
another Restricted Subsidiary of the Company;
(iv) the
sale,
lease or other disposition of equipment, inventory, accounts receivable or
other
assets in the ordinary course of business;
(v) the
sale
or other disposition of Cash Equivalents;
(vi) a
Restricted Payment that is permitted by Section 4.07;
(vii) any
sale
or disposition of any property or equipment that has become damaged, worn out,
obsolete or otherwise unsuitable or no longer required for use in the ordinary
course of the business of the Company or its Restricted
Subsidiaries;
2
(viii) the
licensing of intellectual property in the ordinary course of
business;
(ix) any
sale
or other disposition deemed to occur with creating or granting a Lien not
otherwise prohibited by this Indenture; and
(x) upon
the
termination of the VARTA joint venture with VARTA AG, the sale, transfer or
other disposition of the Equity Interests in FinanceCo (as defined in the VARTA
Joint Venture Agreement) and the forgiveness of any loans owed by VARTA AG,
in
each case pursuant to, and in accordance with the terms of, the VARTA Joint
Venture Agreement as in effect on the Issue Date.
“Bankruptcy
Law”
means
any law relating to bankruptcy, insolvency, receivership, winding-up,
liquidation, reorganization or relief of debtors or any amendment to, succession
to or change in any such law, including, without limitation, the state
bankruptcy law of the Company or the Guarantor’s jurisdiction and title 11,
United States Bankruptcy Code of 1978, as amended.
“Beneficial
Owner”
has
the
meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange
Act, except that in calculating the beneficial ownership of any particular
“person” (as that term is used in Section 13(d)(3) of the Exchange Act), such
“person” shall be deemed to have beneficial ownership of all securities that
such “person” has the right to acquire by conversion or exercise of other
securities, whether such right is currently exercisable or is exercisable only
upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and
“Beneficially Owned” shall have a corresponding meaning.
“Board
of Directors”
means
(a) with respect to a corporation, the board of directors of the corporation;
(b) with respect to a partnership, the Board of Directors of the general partner
of the partnership; and (c) with respect to any other Person, the board or
committee of such Person serving a similar function.
“Business
Day”
means
any day other than a Legal Holiday.
“Capital
Lease Obligation”
means,
at the time any determination thereof is to be made, the amount of the liability
in respect of a capital lease that would at that time be required to be
capitalized on a balance sheet in accordance with GAAP.
“Capital
Stock”
means
(a) in the case of a corporation, corporate stock; (b) in the case of an
association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock; (c) in
the
case of a partnership or limited liability company, partnership or membership
interests (whether general or limited); and (d) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing
Person.
3
“Cash
Equivalents”
means
(a) United States dollars; (b) securities issued or directly and fully
guaranteed or insured by the United States government or any agency or
instrumentality thereof (provided
that the
full faith and credit of the United States is pledged in support thereof) having
maturities of not more than six months from the date of acquisition; (c)
certificates of deposit and eurodollar time deposits with maturities of six
months or less from the date of acquisition, bankers’ acceptances with
maturities not exceeding six months and overnight bank deposits, in each case,
with any domestic commercial bank having capital and surplus in excess of $500.0
million and a Thomson Bank Watch Rating of “B” or better; (d) repurchase
obligations with a term of not more than seven days for underlying securities
of
the types described in clauses (b) and (c) above entered into with any financial
institution meeting the qualifications specified in clause (c) above; (e)
commercial paper having the highest rating obtainable from Moody’s Investors
Service, Inc. or Standard & Poor’s Rating Services and in each case maturing
within nine months after the date of acquisition; (f) marketable direct
obligations issued by any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof having
the
highest ratings obtainable from Moody’s or S&P and maturing within six
months from the date of acquisition thereof; and (g) money market funds at
least
95% of the assets of which constitute Cash Equivalents of the kinds described
in
clauses (a) through (f) of this definition.
“Cash
Form”
means
the form of United States dollars.
“Certificated
Note”
means
a
certificated note in registered certificated form in the name of the Holder
thereof and issued in accordance with Section 2.06 hereof, in the form of
Exhibit
A
hereto,
except that such Note shall not bear the Global Note Legend and shall not have
the “Schedule of Exchanges of Interests in the Global Note” attached
thereto.
“Change
of Control”
means
the occurrence of any of the following: (a) the direct or indirect sale,
transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of all or
substantially all of the properties or assets of the Company and its Restricted
Subsidiaries, taken as a whole, to any “person” (as that term is used in Section
13(d)(3) of the Exchange Act); (b) the adoption of a plan relating to the
liquidation or dissolution of the Company; (c) any “person” or “group” (as such
terms are used in Sections 13(d) and 14(d) of the Exchange Act) becomes the
ultimate Beneficial Owner, directly or indirectly, of 50% or more of the voting
power of the Voting Stock of the Company; (d) the first day on which a majority
of the members of the Board of Directors of the Company are not Continuing
Directors; or (e) the Company consolidates with, or merges with or into, any
Person, or any Person consolidates with, or merges with or into the Company,
in
any such event pursuant to a transaction in which any of the outstanding Voting
Stock of the Company or such other Person is converted into or exchanged for
cash, securities or other property, other than any such transaction where (i)
the Voting Stock of the Company outstanding immediately prior to such
transaction is converted into or exchanged for Voting Stock (other than
Disqualified Stock) of the surviving or transferee Person constituting a
majority of the outstanding shares of such Voting Stock of such surviving or
transferee Person (immediately after giving effect to such issuance) and (ii)
immediately after such transaction, no “person” or “group” (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act) becomes, directly or
indirectly, the ultimate Beneficial Owner of 50% or more of the voting power
of
the Voting Stock of the surviving or transferee Person.
4
“Clearstream”
means
Clearstream Banking, societé anonyme.
“Consolidated
Cash Flow”
means,
with respect to any specified Person for any period, the Consolidated Net Income
of such Person for such period plus,
without
duplication: (a) provision for taxes based on income or profits of such Person
and its Restricted Subsidiaries for such period, to the extent that such
provision for taxes was deducted in computing such Consolidated Net Income;
plus
(b)
Fixed Charges of such Person and its Restricted Subsidiaries for such period,
to
the extent that any such Fixed Charges were deducted in computing such
Consolidated Net Income; plus
(c)
depreciation, amortization (including amortization of goodwill and other
intangibles but excluding amortization of prepaid cash expenses that were paid
in a prior period) and other non-cash expenses of such Person and its Restricted
Subsidiaries for such period to the extent that such depreciation, amortization
and other non-cash expenses were deducted in computing such Consolidated Net
Income; minus
(f)
non-cash items increasing such Consolidated Net Income for such period, other
than the accrual of revenue consistent with past practice, in each case, on
a
consolidated basis and determined in accordance with GAAP.
Notwithstanding
the preceding, the provision for taxes based on the income or profits of, and
the depreciation and amortization and other non-cash expenses of, a Restricted
Subsidiary of the Company shall be added to Consolidated Net Income to compute
Consolidated Cash Flow of the Company (A) in the same proportion that the Net
Income of such Restricted Subsidiary was added to compute such Consolidated
Net
Income of the Company and (B) only to the extent that a corresponding amount
would be permitted at the date of determination to be dividended or distributed
to the Company by such Restricted Subsidiary without prior governmental approval
(that has not been obtained), and without direct or indirect restriction
pursuant to the terms of its charter and all agreements, instruments, judgments,
decrees, orders, statutes, rules and governmental regulations applicable to
that
Subsidiary or its stockholders.
“Consolidated
Net Income”
means,
with respect to any specified Person for any period, the aggregate of the Net
Income of such Person and its Subsidiaries for such period, on a consolidated
basis, determined in accordance with GAAP; provided
that:
(a) the
Net
Income (but not loss) of any Person that is not a Restricted Subsidiary or
that
is accounted for by the equity method of accounting shall be included only
to
the extent of the amount of dividends or distributions paid in cash to the
specified Person or a Restricted Subsidiary thereof;
5
(b) the
Net
Income of any Restricted Subsidiary shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Restricted
Subsidiary of that Net Income is not at the date of determination permitted
without any prior governmental approval (that has not been obtained) or,
directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its
equityholders;
(c) the
Net
Income of any Person acquired during the specified period for any period prior
to the date of such acquisition shall be excluded;
(d) the
cumulative effect of a change in accounting principles shall be excluded;
and
(e) notwithstanding
clause (a) above, the Net Income (but not loss) of any Unrestricted Subsidiary
shall be excluded, whether or not distributed to the specified Person or one
of
its Subsidiaries.
“Consolidated
Net Tangible Assets”
of
any
Person means, as of any date, the amount which, in accordance with GAAP, would
be set forth under the caption “Total Assets” (or any like caption) on a
consolidated balance sheet of such Person and its Restricted Subsidiaries,
as of
the end of the most recently ended fiscal quarter for which internal financial
statements are available, less (a) all intangible assets, including, without
limitation, goodwill, organization costs, patents, trademarks, copyrights,
franchises, and research and development costs and (b) current
liabilities.
“Continuing
Directors”
means,
as of any date of determination, any member of the Board of Directors of the
Company who (a) was a member of such Board of Directors on the Issue Date;
or
(b) was nominated for election or elected to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of such
Board at the time of such nomination or election.
“Corporate
Trust Office of the Trustee”
shall
be at the address of the Trustee specified in Section 12.02 hereof or such
other
address as to which the Trustee may give notice to the Company.
“Credit
Agreement”
means
that certain [Credit Agreement, dated as of [
],
2007,
by and among the Company, [
],
as
Administrative Agent and the other lenders named therein providing for, as
of
the Issue Date, up to $[___]
million
and €[___]
million
in term loan borrowings and $[___]
million
and €[___]
million
of revolving credit borrowings, including any related notes, Guarantees,
collateral documents, instruments and agreements executed in connection
therewith, and in each case as amended, modified, renewed, refunded, replaced
or
refinanced from time to time, regardless of whether such amendment,
modification, renewal, refunding, replacement or refinancing is with the same
financial institutions or otherwise.
6
“Credit
Facilities”
means,
one or more debt facilities (including, without limitation, the Credit
Agreement) or commercial paper facilities, in each case with banks or other
institutional lenders providing for revolving credit loans, term loans,
receivables financing (including through the sale of receivables to such lenders
or to special purpose entities formed to borrow from such lenders against such
receivables) or letters of credit, in each case, as amended, restated, modified,
renewed, refunded, replaced or refinanced in whole or in part from time to
time.
“Custodian”
means
the Trustee, as custodian with respect to the Notes in global form, or any
successor entity thereto.
“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.
“Depositary”
means,
with respect to the Notes issuable or issued in whole or in part in global
form,
the Person specified in Section 2.03 hereof as the Depositary with respect
to
the Notes, and any and all successors thereto appointed as depositary hereunder
and having become such pursuant to the applicable provision of this
Indenture.
“Designated
Senior Debt”
means:
(a) any
Indebtedness outstanding under the Credit Agreement; and
(b) after
payment in full of all Obligations under the Credit Agreement, any other Senior
Debt permitted under this Indenture the principal amount of which is $50.0
million or more and that has been designated by the Company as “Designated
Senior Debt.”
“Disqualified
Stock”
means
any Capital Stock that, by its terms (or by the terms of any security into
which
it is convertible, or for which it is exchangeable, in each case at the option
of the holder thereof), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
or
redeemable at the option of the holder thereof, in whole or in part, on or
prior
to the date that is one year after the date on which the Notes mature, except
to
the extent such Capital Stock is solely redeemable with, or solely exchangeable
for, any Equity Interests of the Company that are not Disqualified Stock.
Notwithstanding the preceding sentence, any Capital Stock that would constitute
Disqualified Stock solely because the holders thereof have the right to require
the Company to repurchase such Capital Stock upon the occurrence of a change
of
control or an asset sale shall not constitute Disqualified Stock if the terms
of
such Capital Stock provide that the Company may not repurchase or redeem any
such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with Section 4.07. The term “Disqualified Stock” shall also
include any options, warrants or other rights that are convertible into
Disqualified Stock or that are redeemable at the option of the holder, or
required to be redeemed, prior to the date that is one year after the date
on
which the Notes mature.
7
“Domestic
Subsidiary”
means
any Restricted Subsidiary of the Company other than a Restricted Subsidiary
that
is (a) a “controlled foreign corporation” under Section 957 of the Internal
Revenue Code or (b) a Subsidiary of any such controlled foreign
corporation.
“Elect”
means to
provide written notification to the Trustee making any election.
“Equity
Interests”
means
Capital Stock and all warrants, options or other rights to acquire Capital
Stock
(but excluding any debt security that is convertible into, or exchangeable
for,
Capital Stock).
“Equity
Offering”
means
a
public or private offer and sale of common stock (other than Disqualified Stock)
of the Company (other than common stock sold to a Subsidiary of the
Company).
“Euroclear”
means
Euroclear S.A./N.V., as operator of the Euroclear System.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“Existing
Indebtedness”
means
the aggregate principal amount of Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the Credit Agreement) in existence
on the Issue Date until such amounts are repaid.
“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 Board of
Directors, whose determination shall be conclusive if evidenced by a Board
Resolution.
“Form”
means
Cash Form or PIK Form.
8
“Fixed
Charge Coverage Ratio”
means,
with respect to any specified Person for any period, the ratio of the
Consolidated Cash Flow of such Person for such period to the Fixed Charges
of
such Person for such period. In the event that the specified Person or any
of
its Subsidiaries incurs, assumes, Guarantees, repays, repurchases or redeems
any
Indebtedness or issues, repurchases or redeems preferred stock subsequent to
the
commencement of the period for which the Fixed Charge Coverage Ratio is being
calculated and on or prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the “Calculation
Date”),
then
the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect
to
such incurrence, assumption, Guarantee, repayment, repurchase or redemption
of
Indebtedness, or such issuance, repurchase or redemption of preferred stock,
and
the use of the proceeds therefrom as if the same had occurred at the beginning
of the applicable four-quarter reference period.
In
addition, for purposes of calculating the Fixed Charge Coverage
Ratio:
(a) acquisitions
and dispositions of business entities or property and assets constituting a
division or line of business of any Person that have been made by the specified
Person or any of its Restricted Subsidiaries, including through mergers or
consolidations and including any related financing transactions, during the
four-quarter reference period or subsequent to such reference period and on
or
prior to the Calculation Date shall be given pro forma effect as if they had
occurred on the first day of the four-quarter reference period and Consolidated
Cash Flow for such reference period shall be calculated on a pro forma basis
in
accordance with Regulation S-X under the Securities Act, but without giving
effect to clause (c) of the proviso set forth in the definition of Consolidated
Net Income; (b) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, shall be excluded; (c) the
Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP shall be excluded, but only to the extent that the
obligations giving rise to such Fixed Charges shall not be obligations of the
specified Person or any of its Subsidiaries following the Calculation Date;
and
(d) consolidated interest expense attributable to interest on any Indebtedness
(whether existing or being incurred) computed on a pro forma basis and bearing
a
floating interest rate shall be computed as if the rate in effect on the
Calculation Date (taking into account any interest rate option, swap, cap or
similar agreement applicable to such Indebtedness if such agreement has a
remaining term in excess of 12 months or, if shorter, at least equal to the
remaining term of such Indebtedness) had been the applicable rate for the entire
period.
“Fixed
Charges”
means,
with respect to any specified Person for any period, the sum, without
duplication, of (a) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued, including,
without limitation, amortization of debt issuance costs and original issue
discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capital Lease Obligations, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers’ acceptance financings, and
net of the effect of all payments made, received or accrued in connection with
Hedging Obligations; plus
(b) the
consolidated interest of such Person and its Restricted Subsidiaries that was
capitalized during such period; plus
(c) any
interest expense on Indebtedness of another Person that is Guaranteed by such
Person or one of its Restricted Subsidiaries or secured by a Lien on assets
of
such Person or one of its Restricted Subsidiaries, whether or not such Guarantee
or Lien is called upon; plus
(d) the
product of (i) all dividends, whether paid or accrued and whether or not in
cash, on any series of Disqualified Stock or preferred stock of such Person
or
any of its Restricted Subsidiaries, other than (A) dividends on Equity Interests
payable solely in Equity Interests of the Company (other than Disqualified
Stock) or (B) dividends to the Company or a Restricted Subsidiary of the
Company, times (ii) a fraction, the numerator of which is one and the
denominator of which is one minus the then current combined federal, state
and
local statutory tax rate of such Person, expressed as a decimal, in each case,
on a consolidated basis and in accordance with GAAP; provided
that
Fixed Charges shall not include any interest expense of, or dividends paid
by,
VARTA to VARTA AG to the extent that the Company or a Restricted Subsidiary
of
the Company receives interest or dividends in cash from VARTA AG in connection
with the VARTA Joint Venture Agreement as in effect on the Issue
Date.
9
“Foreign
Subsidiary”
means
any Restricted Subsidiary of the Company other than a Domestic
Subsidiary.
“GAAP”
means
generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute
of
Certified Public Accountants, the opinions and pronouncements of the Public
Company Accounting Oversight Board and in the statements and pronouncements
of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the Issue Date.
“Global
Note Legend”
means
the legend set forth in Section 2.06(f), which is required to be placed on
all
Global Notes issued under this Indenture.
“Global
Notes”
means
a
permanent global Note in the form of Exhibit
A
attached
hereto that bears the Global Note Legend and that has the “Schedule of Exchanges
of Interests in the Global Note” attached thereto, and that is deposited with or
on behalf of and registered in the name of the Depositary.
“Government
Securities”
means
direct obligations of, or obligations guaranteed by, the United States of
America for the payment of which guarantee or obligations the full faith and
credit of the United States is pledged.
“Guarantee”
means,
as to any Person, 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, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness of another Person.
10
“Guarantors”
means:
(a) each
direct or indirect Domestic Subsidiary of the Company on the Issue Date;
and
(b) any
other
subsidiary that executes a Note Guarantee in accordance with the provisions
of
this Indenture;
and
their
respective successors and assigns until released from their obligations under
their Note Guarantees and this Indenture in accordance with the terms of this
Indenture.
“Hedging
Obligations”
means,
with respect to any specified Person, the obligations of such Person under
(a)
interest rate swap agreements, interest rate cap agreements, interest rate
collar agreements and other agreements or arrangements designed for the purpose
of fixing, hedging or swapping interest rate risk; (b) commodity swap
agreements, commodity option agreements, forward contracts and other agreements
or arrangements designed for the purpose of fixing, hedging or swapping
commodity price risk; and (c) foreign exchange contracts, currency swap
agreements and other agreements or arrangements designed for the purpose of
fixing, hedging or swapping foreign currency exchange rate risk.
“Holder”
means
a
Person in whose name a Note is registered.
“incur”
means,
with respect to any Indebtedness, to incur, create, issue, assume, Guarantee
or
otherwise become directly or indirectly liable for or with respect to, or become
responsible for, the payment of, contingently or otherwise, such Indebtedness;
provided
that (a)
any Indebtedness of a Person existing at the time such Person becomes a
Restricted Subsidiary of the Company shall be deemed to be incurred by such
Restricted Subsidiary at the time it becomes a Restricted Subsidiary of the
Company; and (b) neither the accrual of interest nor the accretion of original
issue discount nor the payment of interest in the form of additional
Indebtedness with the same terms and the payment of dividends on Disqualified
Stock in the form of additional shares of the same class of Disqualified Stock
(to the extent provided for when the Indebtedness or Disqualified Stock on
which
such interest or dividend is paid was originally issued) shall be considered
an
incurrence of Indebtedness; provided
that in
each case the amount thereof is for all other purposes included in the Fixed
Charges and Indebtedness of the Company or its Restricted Subsidiary as
accrued.
“Indebtedness”
means,
with respect to any, specified Person, any indebtedness of such Person, whether
or not contingent:
11
(a) in
respect of borrowed money;
(b) evidenced
by bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof), but excluding obligations with
respect to letters of credit (including trade letters of credit) securing
obligations entered into in the ordinary course of business of such Person
to
the extent such letters of credit are not drawn upon or, if drawn upon, to
the
extent such drawing is reimbursed no later than the fifth Business Day following
receipt by such Person of a demand for reimbursement);
(c) in
respect of banker’s acceptances;
(d) in
respect of Capital Lease Obligations and Attributable Debt;
(e) in
respect of the balance deferred and unpaid of the purchase price of any
property, except any such balance that constitutes an accrued expense or trade
payable;
(f) representing
Hedging Obligations, other than Hedging Obligations that are incurred in the
ordinary course of business for the purpose of fixing, hedging or swapping
interest rate, commodity price or foreign currency exchange rate risk (or to
reverse or amend any such agreements previously made for such purposes), and
not
for speculative purposes, and that do not increase the Indebtedness of the
obligor outstanding at any time other than as a result of fluctuations in
interest rates, commodity prices or foreign currency exchange rates or by reason
of fees, indemnities and compensation payable thereunder; or
(g) representing
Disqualified Stock valued at the greater of its voluntary or involuntary maximum
fixed repurchase price plus accrued dividends;
if
and to
the extent that any of the preceding items (other than letters of credit and
Hedging Obligations) would appear as liability upon a balance sheet of the
specified Person prepared in accordance with GAAP. In addition, the term
“Indebtedness” includes (x) all Indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness is assumed
by
the specified Person), provided
that the
amount of such Indebtedness shall be the lesser of (A) the fair market value
of
such asset at such date of determination and (B) the amount of such
Indebtedness, and (y) to the extent not otherwise included, the Guarantee by
the
specified Person of any Indebtedness of any other Person. For purposes hereof,
the “maximum fixed repurchase price” of any Disqualified Stock which does not
have a fixed repurchase price shall be calculated in accordance with the terms
of such Disqualified Stock as if such Disqualified 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 Stock, such fair market value shall be determined
in
good faith by the Board of Directors of the issuer of such Disqualified
Stock.
12
The
amount of any Indebtedness outstanding as of any date shall be the outstanding
balance at such date of all unconditional obligations as described above and,
with respect to contingent obligations, the maximum liability upon the
occurrence of the contingency giving rise to the obligation, and shall
be:
|
(A)
|
the
accreted value thereof, in the case of any Indebtedness issued with
original issue discount; and
|
|
(B)
|
the
principal amount thereof, together with any interest thereon that
is more
than 30 days past due, in the case of any other
Indebtedness;
|
provided
that
Indebtedness shall not include:
(1) any
liability for federal, state, local or other taxes;
(2) performance,
surety or appeal bonds provided in the ordinary course of business;
or
(3) agreements
providing for indemnification, adjustment of purchase price or similar
obligations, or Guarantees or letters of credit, surety bonds or performance
bonds securing any obligations of the Company or any of its Restricted
Subsidiaries pursuant to such agreements, in any case incurred in connection
with the disposition of any business, assets or Restricted Subsidiary (other
than Guarantees of Indebtedness incurred by any Person acquiring all or any
portion of such business, assets or Restricted Subsidiary for the purpose of
financing such acquisition), so long as the principal amount does not exceed
the
gross proceeds actually received by the Company or any Restricted Subsidiary
in
connection with such disposition.
“Indenture”
means
this Indenture, as amended or supplemented from time to time.
“Indirect
Participant”
means
a
Person who holds a beneficial interest in a Global Note through a
Participant.
“Interest
Payment Date”
means
April 1 and October 1 of each year to Stated Maturity.
13
“Investments”
means,
with respect to any Person, all direct or indirect investments by such Person
in
other Persons (including Affiliates) in the forms of loans or other extensions
of credit (including Guarantees, but excluding advances to customers or
suppliers in the ordinary course of business that are, in conformity with GAAP,
recorded as accounts receivable, prepaid expenses or deposits on the balance
sheet of the Company or its Restricted Subsidiaries and endorsements for
collection or deposit arising in the ordinary course of business), advances
(excluding commission, travel, payroll and similar advances to officers and
employees made consistent with past practices), capital contributions (by means
of any transfer of cash or other property to others or any payment for property
or services for the account or use of others), purchases or other acquisitions
for consideration of Indebtedness, Equity Interests or other securities,
together with all items that are or would be classified as investments on a
balance sheet prepared in accordance with GAAP.
If
the
Company or any Restricted Subsidiary of the Company sells or otherwise disposes
of any Equity Interests of any direct or indirect Restricted Subsidiary of
the
Company such that, after giving effect to any such sale or disposition, such
Person is no longer a Restricted Subsidiary of the Company, the Company shall
be
deemed to have made an Investment on the date of any such sale or disposition
equal to the fair market value of the Investment in such Restricted Subsidiary
not sold or disposed of in an amount determined as provided in Section 4.07.
The
acquisition by the Company or any Restricted Subsidiary of the Company of a
Person that holds an Investment in a third Person shall be deemed to be an
Investment by the Company or such Restricted Subsidiary in such third Person
only if such Investment was made in contemplation of, or in connection with,
the
acquisition of such Person by the Company or such Restricted Subsidiary and
the
amount of any such Investment shall be determined as provided in the final
paragraph of Section 4.07.
“Issue
Date”
means
[the
latest date Notes are issued pursuant to the Offer as defined in the Offering
Circular and Consent Solicitation Statement dated March
[ ],
2007].
“Legal
Holiday”
means
a
Saturday, a Sunday or a day on which commercial banks in The City of New York
or
at a place of payment are authorized or required by law, regulation or executive
order to remain closed. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that
is
not a Legal Holiday, and no interest on such payment shall accrue for the
intervening period.
“Lien”
means,
with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset, whether or not filed,
recorded or otherwise perfected under applicable law, including any conditional
sale or other title retention agreement, any lease in the nature thereof, any
option or other agreement to sell or give a security interest in and any filing
of or agreement to give any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any jurisdiction.
14
“Market
Disruption Event”
means
the occurrence or existence for more than one half hour period in the aggregate
on any scheduled Trading Day for the Company’s common stock of any suspension or
limitation imposed on trading (by reason of movements in price exceeding limits
permitted by the New York Stock Exchange or otherwise) in the Company’s common
stock or in any options, contracts or future contracts relating to such common
stock, and such suspension or limitation occurs or exists at any time before
1:00 p.m. (New York City time) on such day.
“Maturity”
means,
with respect to any Indebtedness, the date on which any principal of such
Indebtedness becomes due and payable as therein or herein provided, whether
at
the Stated Maturity with respect to such principal or by declaration of
acceleration, call for redemption or purchase or otherwise.
“Moody’s”
means
Moody’s Investors Service, Inc. or any successor to the rating agency business
thereof.
“Net
Income”
means,
with respect to any specified Person, the net income (loss) of such Person,
determined in accordance with GAAP and before any reduction in respect of
preferred stock dividends, excluding, however, (a) any gain or loss, together
with any related provision for taxes on such gain or loss, realized in
connection with (i) any sale of assets outside the ordinary course of business
of such Person; or (ii) the disposition of any securities by such Person or
any
of its Restricted Subsidiaries or the extinguishment of any Indebtedness of
such
Person or any of its Restricted Subsidiaries; and (b) any extraordinary gain
or
loss, together with any related provision for taxes on such extraordinary gain
or loss.
“Net
Proceeds”
means
the aggregate cash proceeds, including payments in respect of deferred payment
obligations (to the extent corresponding to the principal, but not the interest
component, thereof) received by the Company or any of its Restricted
Subsidiaries in respect of any Asset Sale (including, without limitation, any
cash received upon the sale or other disposition of any non-cash consideration
received in any Asset Sale), net of (a) the direct costs relating to such Asset
Sale, including, without limitation, legal, accounting and investment banking
fees, and sales commissions, and any relocation expenses incurred as a result
thereof; (b) taxes paid or payable as a result thereof, in each case, after
taking into account any available tax credits or deductions arising therefrom
and any tax sharing arrangements in connection therewith; (c) amounts required
to be applied to the repayment of Indebtedness or other liabilities, secured
by
a Lien on the asset or assets that were the subject of such Asset Sale, or
required to be paid as a result of such sale; and (d) any reserve for adjustment
in respect of the sale price of such asset or assets established in accordance
with GAAP.
“Non-U.S.
Person”
means
a
Person who is not a U.S. Person.
15
“Note
Guarantee”
means
the Guarantee by each Guarantor of the Company’s payment obligations under this
Indenture and on the Notes, executed pursuant to this Indenture.
“Notes”
means
the Variable Rate Toggle Interest Pay-In-Kind Senior Subordinated Notes due
2013
of the Company issued on the Issue Date. The Notes shall be treated as a single
class for all purposes under this Indenture.
“Obligations”
means
any principal, interest, penalties, fees, indemnifications, reimbursements,
damages and other liabilities payable under the documentation governing any
Indebtedness.
“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
a
certificate signed on behalf of the Company by two Officers of the Company,
one
of whom must be the principal executive officer, the principal financial
officer, the treasurer, or the principal accounting officer of the Company,
that
meets the requirements of Section 12.05 hereof.
“Opinion
of Counsel”
means
an opinion from legal counsel that meets the requirements of Section 12.05
hereof. The counsel may be an employee of or counsel to the Company, any
subsidiary of the Company or the Trustee.
“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
Business”
means
any business conducted or proposed to be conducted by the Company and its
Restricted Subsidiaries on the Issue Date and other businesses similar or
reasonably related, ancillary or incidental thereto or reasonable extensions
thereof.
“Permitted
Investments”
means:
(a) any
Investment in the Company or in a Restricted Subsidiary of the
Company;
(b) any
Investment in Cash Equivalents;
16
(c) any
Investment by the Company or any Restricted Subsidiary of the Company in a
Person, if as a result of such Investment:
(i) such
Person becomes a Restricted Subsidiary of the Company; or
(ii) such
Person is merged, consolidated or amalgamated with or into, or transfers or
conveys substantially all of its assets to, or is liquidated into, the Company
or a Restricted Subsidiary of the Company;
(d) any
Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section
4.10;
(e) Investments
to the extent acquired in exchange for the issuance of Equity Interests (other
than Disqualified Stock) of the Company;
(f) Hedging
Obligations that are incurred .in the ordinary course of business for the
purpose of fixing, hedging or swapping interest rate, commodity price or foreign
currency exchange rate risk (or to reverse or amend any such agreements
previously made for such purposes), and not for speculative purposes, and that
do not increase the Indebtedness of the obligor outstanding at any time other
than as a result of fluctuations in interest rates, commodity prices or foreign
currency exchange rates or by reason of fees, indemnities and compensation
payable thereunder;
(g) stock,
obligations or securities received in satisfaction of judgments;
(h) Investments
in securities of trade debtors or customers received pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of
such
trade creditors or customers or in good faith settlement of delinquent
obligations of such trade debtors or customers or in compromise or resolution
of
litigation, arbitration or other disputes with Persons who are not Affiliates;
and
(i) other
Investments in any Person that is not an Affiliate of the Company (other than
a
Restricted Subsidiary) having an aggregate fair market value (measured on the
date each such Investment was made and without giving effect to subsequent
changes in value), when taken together with all other Investments made pursuant
to this clause (i) since the Issue Date, not to exceed $15.0
million.
“Permitted
Junior Securities”
means
(a) Equity Interests in the Company or any Guarantor or any other business
entity provided for by a plan of reorganization; and (b) debt securities of
the
Company or any Guarantor or any other business entity provided for by a plan
of
reorganization that are subordinated to the payment of all Senior Debt and
any
debt securities issued in exchange for Senior Debt to substantially the same
extent as, or to a greater extent than, the Notes and the Note Guarantees are
subordinated to Senior Debt under this Indenture.
17
“Permitted
Liens”
means:
(a) Liens
on
the assets of the Company and any Guarantor securing Senior Debt that was
permitted by the terms of this Indenture to be incurred;
(b) Liens
in
favor of the Company or any Restricted Subsidiary;
(c) Liens
on
property of a Person existing at the time such Person is merged with or into
or
consolidated with the Company or any Restricted Subsidiary of the Company;
provided
that
such Liens were in existence prior to the contemplation of such merger or
consolidation and do not extend to any assets other than those of the Person
merged into or consolidated with the Company or the Restricted
Subsidiary;
(d) Liens
on
property existing at the time of acquisition thereof by the Company or any
Restricted Subsidiary of the Company, provided
that
such Liens were in existence prior to the contemplation of such acquisition
and
do not extend to any property other than the property so acquired by the Company
or the Restricted Subsidiary;
(e) Liens
existing on the Issue Date;
(f) Liens
securing Permitted Refinancing Indebtedness; provided that such Liens do not
extend to any property or assets other than the property or assets that secure
the Indebtedness being refinanced;
(g) Liens
incurred in the ordinary course of business of the Company or any Restricted
Subsidiary of the Company with respect to obligations that do not exceed $5.0
million at any one time outstanding; and
(h) Liens
on
the assets of a Foreign Subsidiary securing Indebtedness of a Foreign Subsidiary
that was permitted by the terms of the Indenture to be incurred.
“Permitted
Refinancing Indebtedness”
means
any Indebtedness of the Company or any of its Restricted Subsidiaries issued
in
exchange for, or the net proceeds of which are used to extend, refinance, renew,
replace, defease or refund other Indebtedness of the Company or any of its
Restricted Subsidiaries (other than intercompany Indebtedness); provided
that:
18
(a) the
principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted
value, if applicable) of the Indebtedness so extended, refinanced, renewed,
replaced, defeased or refunded (plus all accrued interest thereon and the amount
of any reasonably determined premium necessary to accomplish such refinancing
and such reasonable expenses incurred in connection therewith);
(b) such
Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and has a Weighted Average Life to Maturity equal to
or
greater than the Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded;
(c) if
the
Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded
is subordinated in right of payment to the Notes or the Note Guarantees, such
Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and is subordinated in right of payment to, the Notes
on
terms at least as favorable to the Holders of Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded;
(d) if
the
Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded
is pari
passu
in right
of payment with the Notes or any Note Guarantees, such Permitted Refinancing
Indebtedness is pari
passu
with, or
subordinated in right of payment to, the Notes or such Note Guarantees;
and
(e) such
Indebtedness is incurred either by the Company or by the Restricted Subsidiary
who is the obligor on the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded.
“Person”
means
any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability
company or government or other entity.
“PIK
Form”
means,
with respect to any interest payment and any Election Notification Date, the
form of a senior subordinated note with (A) a principal amount equal to the
amount of such interest payment at a fixed rate per annum equal to the Scheduled
PIK Interest Rate on such Election Notification Date, (B) interest payable
only
in Dollars, (C) interest to accrue on such note from the date of its issuance
and (D) otherwise on substantially similar terms and conditions as the
Notes.
19
“preferred
stock”
means,
with respect to any Person, any Capital Stock of such Person that has
preferential rights to any other Capital Stock of such Person with respect
to
dividends or redemption upon liquidation.
“Private
Placement Legend”
means
the legend set forth in Section 2.06(f)(i) to be placed on all Notes issued
hereunder except where otherwise permitted by this Indenture.
“Record
Date”
for
the
interest payable on any Interest Payment Date means March 15 or September 15
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.
“Replacement
Assets”
means
(a) non-current assets that shall be used or useful in a Permitted Business
or
(b) all or substantially all of the assets of a Permitted Business or a majority
of the Voting Stock of any Person engaged in a Permitted Business that shall
become on the date of acquisition thereof a Restricted Subsidiary of the
Company.
“Representative”
means
the Trustee, agent or representative for any Senior Debt.
“Responsible
Officer”
when
used with respect to the Trustee, means any officer within the Corporate Trust
Administration of the Trustee (or any successor group of the Trustee) or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter
is
referred because of his knowledge of and familiarity with the particular subject
and who shall have direct responsibility for the administration of this
Indenture.
“Restricted
Investment”
means
an Investment other than a Permitted Investment.
“Restricted
Period”
means
the 40-day restricted period as defined in Regulation S.
“Restricted
Subsidiary”
of
a
Person means any Subsidiary of the referent Person that is not an Unrestricted
Subsidiary.
“Rule
144A”
means
Rule 144A promulgated under the Securities Act.
“S&P”
means
Standard and Poor’s Rating Services or any successor to the rating agency
business thereof and its successors.
20
“Sale
and Leaseback Transaction”
means,
with respect to any Person, any transaction involving any of the assets or
properties of such Person whether now owned or hereafter acquired, whereby
such
Person sells or transfers such assets or properties and then or thereafter
leases such assets or properties or any part thereof or any other assets or
properties which such Person intends to use for substantially the same purpose
or purposes as the assets or properties sold or transferred.
"Scheduled
Cash Interest Rate"
means
the “Percentage” with respect to any date within the “Date Range” on the table
below:
|
Date
Range
|
Percentage
|
|
Issue
Date through April 1, 2007
|
11.00%
|
|
April
1, 2007 through October 1, 2007
|
11.25%
|
|
October
2, 2007 through April 1, 2008
|
11.50%
|
|
April
2, 2008 through October 1, 2008
|
12.00%
|
|
October
2, 2008 through April 1, 2009
|
12.50%
|
|
April
2, 2009 through October 1, 2009
|
12.75%
|
|
October
2, 2009 through April 1, 2010
|
13.50%
|
|
April
2, 2010 through October 1, 2010
|
13.75%
|
|
October
2, 2010 through April 1, 2011
|
14.00%
|
|
April
2, 2011 through October 1, 2011
|
14.25%
|
|
October
2, 2011 through April 1, 2012
|
14.50%
|
|
April
2, 2012 through October 1, 2012
|
14.75%
|
|
October
2, 2012 through April 1, 2013
|
15.00%
|
|
April
2, 2013 through October 1, 2013
|
15.25%
|
"Scheduled
PIK Interest Rate
means
the “Percentage” with respect to any date within the “Date Range” on the table
below:
|
Date
Range
|
Percentage
|
|
Issue
Date through April 1, 2007
|
12.00%
|
|
April
1, 2007 through October 1, 2007
|
12.25%
|
|
October
2, 2007 through April 1, 2008
|
12.50%
|
|
April
2, 2008 through October 1, 2008
|
13.00%
|
|
October
2, 2008 through April 1, 2009
|
13.50%
|
|
April
2, 2009 through October 1, 2009
|
13.75%
|
|
October
2, 2009 through April 1, 2010
|
14.50%
|
|
April
2, 2010 through October 1, 2010
|
14.75%
|
|
October
2, 2010 through April 1, 2011
|
15.00%
|
|
April
2, 2011 through October 1, 2011
|
15.25%
|
|
October
2, 2011 through April 1, 2012
|
15.50%
|
|
April
2, 2012 through October 1, 2012
|
15.75%
|
|
October
2, 2012 through April 1, 2013
|
16.00%
|
|
April
2, 2013 through October 1, 2013
|
16.25%
|
21
“Scheduled
Rate” means
(i)
with respect to the Cash Form, the Scheduled Cash Interest Rate and (ii) with
respect to the PIK Form, the Scheduled PIK Interest Rate.
“SEC”
means
the Securities and Exchange Commission.
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Senior
Debt”
means:
(a) all
Indebtedness of the Company or any Guarantor outstanding under Credit Facilities
and all Hedging Obligations with respect thereto;
(b) any
other
Indebtedness of the Company or any Guarantor permitted to be incurred under
the
terms of this Indenture, unless the instrument under which such Indebtedness
is
incurred expressly provides that it is on a parity with or subordinated in
right
of payment to the Notes or any Note Guarantee; and
(c) all
Obligations with respect to the items listed in the preceding clauses (a) and
(b).
Notwithstanding
anything to the contrary in the preceding paragraph, Senior Debt shall not
include:
(i) any
liability for federal, state, local or other taxes owed or owing by the Company
or any Guarantor;
(ii) any
Indebtedness of the Company or any Guarantor to any of their Subsidiaries or
other Affiliates;
22
(iii) any
trade
payables;
(iv) the
portion of any Indebtedness that is incurred in violation of this
Indenture;
(v) any
Indebtedness of the Company or any Guarantor that, when incurred, was without
recourse to the Company or such Guarantor;
(vi) any
repurchase, redemption or other obligation in respect of Disqualified Stock;
or
(vii) the
Company’s 7 3/8% Senior Subordinated Notes due 2015.
Notwithstanding
anything herein to the contrary, the Company’s 7 3/8% Notes due 2015 shall be
pari
passu
in right
of payment to the Notes
“Significant
Subsidiary”
means
any Subsidiary that would constitute a “significant subsidiary” within the
meaning of Article I of Regulation S-X of the Securities Act.
“Stated
Maturity”
means,
with respect to any installment of interest or principal on any series of
Indebtedness, the date on which such payment of interest or principal was
scheduled to be paid in the original documentation governing such Indebtedness,
and shall not include any contingent obligations to repay, redeem or repurchase
any such interest or principal prior to the date originally scheduled for the
payment thereof.
“Subsidiary”
means,
with respect to any specified Person: (a) any corporation, association or other
business entity of which more than 50% of the total voting power of shares
of
Capital Stock entitled (without regard to the occurrence of any contingency)
to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by such Person or one or more
of
the other Subsidiaries of that Person (or a combination thereof); and any
partnership (i) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (ii) the only general
partners of which are such Person or one or more Subsidiaries of such Person
(or
any combination thereof).
“TIA”
means
the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb) as in
effect on the date on which this Indenture is qualified under the
TIA.
“Trading
Day”
means
any day on which (i) there is no Market Disruption Event and (ii) the New York
Stock Exchange is open for trading, or, if the Company’s common stock is not
listed on the New York Stock Exchange, any day on which the principal national
securities exchange on which the Company’s common stock is listed is open for
trading, or, if the Company’s common stock is not listed on a national
securities exchange, any Business Day. A “Trading Day” only includes those days
that have a scheduled closing time of 4:00 p.m. (New York City time) or the
then
standard closing time for regular trading on the relevant exchange or trading
system.
23
“Trustee”
means
the party named as such in the preamble to this Indenture until a successor
replaces it in accordance with this Indenture and thereafter means the successor
serving hereunder.
“Unrestricted
Subsidiary”
means
any Subsidiary of the Company that is designated by the Board of Directors
of
the Company as an Unrestricted Subsidiary pursuant to a Board Resolution in
compliance with Section 4.16 and any Subsidiary of such Subsidiary.
“U.S.
Person”
means
a
U.S. person as defined in Rule 902(o) under the Securities Act.
“VARTA”
means
Varta Geratebatterie GmbH and its successors or assignees.
“VARTA
Joint Venture Agreement”
means
the agreement among VARTA AG, the Company and ROV German Limited GmbH dated
July
28, 2002, as amended.
“Voting
Stock”
of
any
Person as of any date means the Capital Stock of such Person that is at the
time
entitled to vote in the election of the Board of Directors of such
Person.
“Weighted
Average Life to Maturity”
means,
when applied to any Indebtedness at any date, the number of years obtained
by
dividing: (a) the sum of the products obtained by multiplying (i) the amount
of
each then remaining installment, sinking fund, serial maturity or other required
payments of principal, including payment at final maturity, in respect thereof,
by (ii) the number of years (calculated to the nearest one-twelfth) that shall
elapse between such date and the making of such payment; by (b) the then
outstanding principal amount of such Indebtedness.
“Wholly
Owned Restricted Subsidiary”
of
any
specified Person means a Restricted Subsidiary of such Person all of the
outstanding Capital Stock or other ownership interests of which (other than
directors’ qualifying shares or Investments by foreign nationals mandated by
applicable law) shall at the time be owned by such Person or by one or more
Wholly Owned Restricted Subsidiaries of such Person and one or more Wholly
Owned
Restricted Subsidiaries of such Person.
24
Section
1.02 Other
Definitions
.
|
Term
|
Defined
in
Section
|
|
“Affiliate
Transaction”
|
4.11
|
|
“Asset
Sale Offer”
|
4.10
|
|
“Authentication
Order”
|
2.02
|
|
“Change
of Control Offer”
|
4.14
|
|
“Change
of Control Payment Date”
|
4.14
|
|
“Company”
|
Preamble
|
|
“Covenant
Defeasance”
|
8.03
|
|
“DTC”
|
2.03
|
|
“Event
of Default”
|
6.01
|
|
“Excess
Proceeds”
|
4.10
|
|
“Fixed
Charge Coverage Ratio Test”
|
4.01
|
|
“Legal
Defeasance”
|
8.02
|
|
“Offer
Amount”
|
3.09
|
|
“Offer
Period”
|
3.09
|
|
“Paying
Agent”
|
2.03
|
|
“Payment
Blockage Notice”
|
10.03
|
|
“Permitted
Debt”
|
4.09
|
|
“Purchase
Date”
|
3.09
|
|
“Registrar”
|
2.03
|
|
“Repurchase
Offer”
|
3.09
|
|
“Restricted
Payments”
|
4.07
|
Section
1.03
Incorporation by Reference of Trust Indenture Act.
The
mandatory provisions of the TIA that are required to be a part of and govern
indentures qualified under the TIA are incorporated by reference in and are
a
part of this Indenture, whether or not this Indenture is so qualified. Whenever
this Indenture refers to a provision of the TIA, the 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:
“indenture
securities”
means
the Notes;
“indenture
security Holder”
means
a
Holder of a Note;
“indenture
to be qualified”
means
this Indenture;
“indenture
trustee”
or
“institutional
trustee”
means
the Trustee; and
“obligor”
on
the
Notes means the Company and any successor obligor upon the Notes.
25
All
other
terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rule under the TIA have the
meanings so assigned to them.
Section
1.04 Rules
of Construction.
Unless
the context otherwise requires:
|
(a)
|
a
term has the meaning assigned to
it;
|
|
(b)
|
“or”
is not exclusive;
|
|
(c)
|
“including”
or “include” means including or include without
limitation;
|
|
(d)
|
words
in the singular include the plural and words in the plural include
the
singular;
|
|
(e)
|
the
words “herein,” “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section, clause or other
subdivision;
|
|
(f)
|
“$,”
“U.S. Dollars” and “United States Dollars” each refer to United States
dollars, or such other money of the United States that at the time
of
payment is legal tender for payment of public and private
debts;
|
|
(g)
|
provisions
apply to successive events and
transactions;
|
|
(h)
|
references
to sections of or rules under the Securities Act shall be deemed
to
include substitute, replacement or successor sections or rules adopted
by
the SEC from time to time; and
|
|
(i)
|
unless
the context otherwise requires, any reference to an “Article” or a
“Section” refers to an Article or a Section, as the case may be, of this
Indenture.
|
ARTICLE
II
THE
NOTES
Section
2.01 Form
and Dating.
(a)
General.
The
Notes and the Trustee’s certificate of authentication shall be substantially in
the form of Exhibit
A
hereto.
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 issued in registered, global form and shall be in
denominations of $1.00 and integral multiples of $1.00 in excess
thereof.
26
The
terms
and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and the Company, the Guarantors and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such
terms
and provisions and to be bound thereby. However, to the extent any provision
of
any Note conflicts with this Indenture, this Indenture shall govern and be
controlling.
Section
2.02 Execution
and Authentication.
One
Officer shall sign the Notes for the Company by manual or facsimile
signature.
If
an
Officer whose signature is on a Note no longer holds that office at the time
a
Note is authenticated, the Note shall nevertheless be valid.
A
Note
shall not be valid until authenticated by the manual signature of the Trustee.
The signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
The
aggregate principal amount of Notes which may be authenticated and delivered
under this Indenture is unlimited.
The
Trustee shall, upon a written order of the Company signed by one Officer (an
“Authentication
Order”),
authenticate Notes for original issue up to the aggregate principal amount
authorized pursuant to this Indenture.
The
Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Notes. An authenticating agent may authenticate Notes whenever
the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has
the
same rights as an Agent to deal with Holders or an Affiliate of the
Company.
Section
2.03 Registrar
and Paying Agent.
The
Company shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (“Registrar”)
and an
office or agency where Notes may be presented for payment (“Paying
Agent”).
The
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
promptly 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.
27
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 Custodian with respect to the Global Notes.
Section
2.04 Paying
Agent to Hold Money in Trust.
The
Company shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent shall hold in trust for the benefit of Holders
or
the Trustee all money held by the Paying Agent for the payment of principal,
premium, 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 thereof) shall have no further
liability for the money. If the Company or a Subsidiary thereof acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit
of
the Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee shall serve
as
Paying Agent for the Notes.
Section
2.05 Holder
Lists.
The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of all Holders
and
shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar,
the Company shall 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 § 312(a).
Section
2.06 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, 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 Certificated Notes if (i) the Company
delivers to the Trustee notice from the Depositary that it is unwilling or
unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 120 days after the date of
such notice from the Depositary or (ii) the Company in its sole discretion
determines that the Global Notes (in whole but not in part) should be exchanged
for Certificated Notes and delivers a written notice to such effect to the
Trustee or (iii)
there shall have occurred and be continuing a Default or Event of Default with
respect to the Notes. Upon the occurrence of any of the preceding events in
(i),
(ii) or (iii) above, Certificated 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 2.07, 2.10 and 2.11
hereof. Every Note authenticated and delivered in exchange for, or in lieu
of, a
Global Note or any portion thereof, pursuant to this Section 2.06 or Section
2.07, 2.10 or 2.11 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 2.06(a), however, beneficial interests
in
a Global Note may be transferred and exchanged as provided in Section 2.06(b),
(c) or (f) hereof.
28
(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 this Indenture and the
Applicable Procedures. 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 Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in a Global Note. No
written orders or instructions shall be required to be delivered to the
Registrar to effect the transfers described in this Section
2.06(b)(i).
(ii) All
Other Transfers and Exchanges of Beneficial Interests in Global
Notes.
In
connection with all transfers and exchanges of beneficial interests that are
not
subject to Section 2.06(b)(i) above, the transferor of such beneficial interest
shall deliver to the Registrar either (A) a written order from a Participant
or
an Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be credited
a beneficial interest in the Global Note in an amount equal to the beneficial
interest to be transferred or exchanged and instructions given in accordance
with the Applicable Procedures containing information regarding the Participant
account to be credited with such increase or (B) a written order from a
Participant or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to cause to be issued
a
Certificated Note in an amount equal to the beneficial interest to be
transferred or exchanged and instructions given by the Depositary to the
Registrar containing information regarding the Person in whose name such
Certificated Note shall be registered to effect the transfer or exchange
referred to in (A) above. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Notes contained in this
Indenture and the Notes or otherwise applicable under the Securities Act, the
Trustee shall adjust the principal amount of the relevant Global Note(s)
pursuant to Section 2.06(h) hereof.
(c) Transfer
or Exchange of Beneficial Interests for Certificated Notes.
If any
Holder of a beneficial interest in an Unrestricted Global Note proposes to
exchange such beneficial interest for a Certificated Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Certificated Note, then, upon satisfaction of the conditions set forth in
Section 2.06(b)(ii) hereof, the Trustee shall cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly pursuant to
Section 2.06(g) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Certificated Note in the appropriate principal amount. Any Certificated Note
issued in exchange for a beneficial interest pursuant to this Section
2.06(c)(iv) shall be registered in such name or names and in such authorized
denomination or denominations as the Holder of such beneficial interest shall
instruct the Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Trustee shall deliver such Certificated
Notes to the Persons in whose names such Notes are so registered.
29
(d) Transfer
and Exchange of Certificated Notes for Beneficial Interests.
A Holder
of an Unrestricted Certificated Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Certificated 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
Certificated 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 Certificated Note to a beneficial interest
is
effected pursuant to subparagraph (ii)(B), (ii)(D) or (iii) above at a time
when
an Unrestricted Global Note has not yet been issued, the Company shall issue
and, upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate one or more Unrestricted Global Notes
in
an aggregate principal amount equal to the principal amount of Certificated
Notes so transferred.
(e) Transfer
and Exchange of Certificated Notes for Certificated Notes.
Upon
request by a Holder of Certificated Notes and such Holder’s compliance with this
Section 2.06(e), the Registrar shall register the transfer or exchange of
Certificated Notes. Prior to such registration of transfer or exchange, the
requesting Holder shall present or surrender to the Registrar the Certificated
Notes duly endorsed or accompanied by a written instruction of transfer in
form
satisfactory to the Registrar duly executed by such Holder or by his 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 clauses of this Section 2.06(e).
(i) Unrestricted
Certificated Notes to Unrestricted Certificated Notes.
A
Holder of Unrestricted Certificated Notes may transfer such Notes to a Person
who takes delivery thereof in the form of an Unrestricted Certificated Note.
Upon receipt of a request to register such a transfer, the Registrar shall
register the Unrestricted Certificated Notes pursuant to the instructions from
the Holder thereof.
(f) Legends.
Each
Global Note shall bear a legend in substantially the following form:
30
“THIS
GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING
THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT
TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.12 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.”
(g) Cancellation
and/or Adjustment of Global Notes.
At such
time as all beneficial interests in a particular Global Note have been exchanged
for Certificated Notes or a particular Global Note has been redeemed,
repurchased or canceled in whole and not in part, each such Global Note shall
be
returned to or retained and canceled by the Trustee in accordance with Section
2.12 hereof. At any time prior to such cancellation, if any beneficial interest
in a Global Note is exchanged for or transferred to a Person who shall take
delivery thereof in the form of a beneficial interest in another Global Note
or
for Certificated Notes, the principal amount of Notes represented by such Global
Note shall be reduced accordingly and an endorsement shall be made on such
Global Note by the Trustee or by the Depositary at the direction of the Trustee
to reflect such reduction; and if the beneficial interest is being exchanged
for
or transferred to a Person who 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 shall be made on such Global Note
by
the Trustee or by the Depositary at the direction of the Trustee to reflect
such
increase.
(h) General
Provisions Relating to Transfers and Exchanges.
(b)
To
permit registrations of transfers and exchanges, the Company shall execute
and
the Trustee shall authenticate Global Notes and Certificated Notes upon the
Company’s order or at the Registrar’s request.
(ii) No
service charge shall be made to a holder of a beneficial interest in a Global
Note or to a Holder of a Certificated Note for any registration of transfer
or
exchange, but the Company may require payment of a sum sufficient to cover
any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or similar governmental charge payable
upon
exchange or transfer pursuant to Sections 2.11, 3.06, 3.09, 4.10, 4.14 and
9.05
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.
31
(iv) All
Global Notes and Certificated Notes issued upon any registration of transfer
or
exchange of Global Notes or Certificated Notes shall be the valid and legally
binding obligations of the Company, evidencing the same debt, and entitled
to
the same benefits under this Indenture, as the Global Notes or Certificated
Notes surrendered upon such registration of transfer or exchange.
(v) The
Company shall not be required (A) to issue, to register the transfer of or
to
exchange any Notes during a period beginning at the opening of business 15
days
before the day of any selection of Notes for redemption under Section 3.02
hereof and ending at the close of business on the day of selection, (B) to
register the transfer of or to exchange any Note so selected for redemption
in
whole or in part, except the unredeemed portion of any Note being redeemed
in
part or (C) to register the transfer of or to exchange a Note between a record
date and the next succeeding Interest Payment Date.
(vi) Prior
to
due presentment for the registration of a transfer of any Note, the Trustee,
any
Agent and the Company may deem and treat the Person in whose name any Note
is
registered as the absolute owner of such Note for the purpose of receiving
payment of principal of and 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 Certificated Notes in accordance
with Section 2.02 hereof.
(viii) All
certifications, certificates and Opinions of Counsel required to be submitted
to
the Registrar pursuant to this Section 2.06 to effect a registration of transfer
or exchange may be submitted by facsimile.
Section
2.07 Replacement
Notes.
If any
mutilated Note is surrendered to the Trustee or the Company and the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of
any
Note, the Company shall issue and the Trustee, upon receipt of an Authentication
Order, 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 issued pursuant to this Section 2.07 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
2.08 Outstanding
Notes.
The
Notes outstanding at any time are all the Notes authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation, those
reductions in the interest in a Global Note effected by the Trustee in
accordance with this Indenture, and those described in this Section as not
outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease
to be outstanding because the Company or an Affiliate of the Company holds
the
Note; however, Notes held by the Company or a Subsidiary of the Company shall
not be deemed to be outstanding for purposes of Section 3.07(b)
hereof.
32
If
a Note
is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held
by
a bona fide purchaser or protected purchaser.
If
the
principal amount of any Note is considered paid under Section 4.01 hereof,
it
ceases to be outstanding and interest on it ceases to accrue.
If
the
Paying Agent (other than the Company, a Subsidiary or an Affiliate of any of
the
foregoing) holds, on a redemption date or maturity date, money sufficient to
pay
Notes payable on that date in full, then on and after that date such Notes
shall
be deemed to be no longer outstanding and shall cease to accrue
interest.
Section
2.09 Treasury
Notes.
In
determining whether the Holders of the required principal amount of the Notes
have concurred in any direction, waiver or consent, Notes owned by the Company,
any direct or indirect Subsidiary of the Company or any Affiliate of the Company
shall be considered as though not outstanding, except that for the purposes
of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee knows are so owned
shall be so disregarded. Notes so owned which have been pledged in good faith
shall not be disregarded if the pledgee establishes to the satisfaction of
the
Trustee the pledgee’s right to deliver any such direction, waiver or consent
with respect to the Notes and that the pledgee is not the Company or any obligor
upon the Notes or any Affiliate of the Company or of such other
obligor.
Section
2.10 Certificated
Notes.
(a) A
Global Note deposited with the Depositary or other custodian for the Depositary
pursuant to Section 2.01 shall be transferred to the beneficial owners thereof
in the form of certificated Notes only if such transfer complies with Section
2.06 and (i) the Depositary notifies the Company that it is unwilling or unable
to continue as the Depositary for such Global Note, or if at any time the
Depositary ceases to be a “clearing agency” registered under the Exchange Act
and a successor depositary is not appointed by the Company within 90 days of
the
earlier of such notice or the Company becoming aware of such cessation, or
(ii)
the Company, at its option, executes and delivers to the Trustee a notice that
such Global Note be so transferable, registrable and exchangeable, or (iii)
a
Default or an Event of Default has occurred and is continuing with respect
to
the Notes and the Registrar has received a request for such transfer from either
the Depositary or a Person with a beneficial interest in such Notes or (iv)
the
issuance of such certificated Notes is necessary in order for a Holder or
beneficial owner to present its Note or Notes to a Paying Agent in order to
avoid any tax that is imposed on or with respect to a payment made to such
Holder or beneficial owner and the Holder or beneficial owner (through the
Depositary) so certifies to the Company and the Trustee. Notice of any such
transfer shall be given by the Company in accordance with the provisions of
Section 12.02.
33
(b) Any
Global Note that is transferable to the beneficial owners thereof in the form
of
certificated Notes pursuant to this Section 2.10 shall be surrendered by the
Depositary to the Transfer Agent, to be so transferred, in whole or from time
to
time in part, without charge, and the Trustee shall authenticate and deliver,
upon such transfer of each portion of such Global Note, an equal aggregate
principal amount of Notes of authorized denominations in the form of
certificated Notes.
(c) In
connection with the exchange of an entire Global Note for certificated Notes
pursuant to this Section 2.10, such Global Note shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute,
and
the Trustee shall authenticate and deliver, to each beneficial owner identified
by the Depositary in exchange for its beneficial interest in such Global Note,
an equal aggregate principal amount of certificated Notes. In the event that
such certificated Notes are not issued to each beneficial owner promptly after
the Registrar has received a request from the Depositary or (through the
Depositary) a beneficial owner to issue such certificated Notes, the Company
expressly acknowledges, with respect to the right of any Holder to pursue a
remedy pursuant to Article VI hereof, the right of any beneficial owner of
Notes
to pursue such remedy with respect to the portion of the Global Note that
represents such beneficial owner’s Notes as if such certificated Notes had been
issued.
(d) Any
portion of a Global Note transferred or exchanged pursuant to this Section
2.10
shall be executed, authenticated and delivered only in registered form in
denominations of $1,000 and any integral multiple thereof and registered in
such
names as the Depositary shall direct. Subject to the foregoing, a Global Note
is
not exchangeable except for a Global Note of like denomination to be registered
in the name of the Depositary or its nominee. In the event that a Global Note
becomes exchangeable for certificated Notes, payment of principal, premium,
if
any, and interest on the certificated Notes will be payable, and the transfer
of
the certificated Notes will be registrable, at the office or agency of the
Company maintained for such purposes in accordance with Section
2.03.
(e) In
the
event of the occurrence of any of the events specified in Section 2.10(a),
the
Company will promptly make available to the Trustee a reasonable supply of
certificated Notes in definitive, fully registered form without interest
coupons.
Section
2.11 Temporary
Notes.
Until
certificates representing Notes are ready for delivery, the Company may prepare
and the Trustee, upon receipt of an Authentication Order, shall authenticate
temporary Notes. Temporary Notes shall be substantially in the form of
certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate definitive Notes in exchange for temporary
Notes.
34
Holders
of temporary Notes shall be entitled to all of the benefits of this
Indenture:
Section
2.12 Cancellation.
The
Company at any time may deliver Notes to the Trustee for cancellation. The
Registrar and Paying Agent shall forward to the Trustee any Notes surrendered
to
them for registration of transfer, exchange or payment. The Trustee and no
one
else shall cancel all Notes surrendered for registration of transfer, exchange,
payment, replacement or cancellation and shall dispose of such canceled Notes
in
its customary manner (subject to record retention requirements of the Exchange
Act). Subject to Section 2.07, the Company may not issue new Notes to replace
Notes that it has paid or that have been delivered to the Trustee for
cancellation.
Section
2.13 Defaulted
Interest.
If the
Company defaults in a payment of interest on the Notes, it shall pay the
defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Company shall notify the Trustee in writing
of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company shall fix or cause to be fixed each such
special record date and payment date, provided
that no
such special record date shall be less than 10 days prior to the related payment
date for such defaulted interest. At least 15 days before the special record
date, the Company (or, upon the written request of the Company, the Trustee
in
the name and at the expense of the Company) shall mail or cause to be mailed
to
Holders a notice that states the special record date, the related payment date
and the amount of such interest to be paid.
Section
2.14 CUSIP
and ISIN Numbers.
The
Company in issuing the Notes may use “CUSIP” and “ISIN” numbers (if then
generally in use, and, if so, the Trustee shall use “CUSIP” and “ISIN” numbers
in notices of redemption as a convenience to Holders; provided
that any
such notice may state that no representation is made as to the correctness
of
such numbers either as printed on the Notes or as contained in any notice of
redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected
by
any defect in or omission of such numbers. The Company shall promptly notify
the
Trustee of any change in the “CUSIP” or “ISIN” numbers.
Section
2.15 Deposit
of Moneys.
By or
before 12:00 p.m. (noon) Eastern Time on each due date of the principal,
premium, if any, and interest on any Notes, the Company shall deposit with
the
Paying Agent money in immediately available funds sufficient to pay such
principal, premium, if any, and interest so becoming due on the due date for
payment under the Notes and (unless the Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to
act.
Section
2.16 Computation
of Interest.
Interest on the Notes shall be computed on the basis of a 360-day year of twelve
30-day months.
35
ARTICLE
III
REDEMPTION
AND PREPAYMENT
Section
3.01
Notices to Trustee.
If the
Company elects to redeem Notes pursuant to Section 3.07 hereof, it shall furnish
to the Trustee, at least 30 days but not more than 60 days before a redemption
date (unless a shorter notice period shall be satisfactory to the Trustee in
its
reasonable discretion), an Officers’ Certificate setting forth (a) the clause of
this Indenture pursuant to which the redemption shall occur, (b) the redemption
date, (c) the principal amount of Notes to be redeemed and (d) the redemption
price.
Section
3.02 Selection
of Notes to Be Redeemed.
If less
than all of the Notes are to be redeemed at any time, selection of Notes for
redemption shall be made by the Trustee 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 by such method as the Trustee shall deem 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 (unless a shorter time period
shall be satisfactory to the Trustee) from the outstanding Notes not previously
called for redemption.
The
Trustee shall promptly notify the Company in writing of the Notes selected
for
redemption and, in the case of any Note selected for partial redemption, the
principal amount thereof to be redeemed. Notes and portions of Notes selected
shall be in amounts of $1,000 or whole multiples of $1,000; except that if
all
of the Notes of a Holder are to be redeemed, the entire outstanding amount
of
Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed.
Except as provided in the preceding sentence, the provisions of this Indenture
that apply to Notes called for redemption also apply to portions of Notes called
for redemption.
Section
3.03 Notice
of Redemption.
Subject
to Section 3.09 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.
The
notice shall identify the Notes to be redeemed and shall state:
(a) the
redemption date;
(b) the
redemption price;
(c) if
any
Note is being redeemed in part, the portion of the principal amount of such
Note
to be redeemed and that, after the redemption date upon surrender of such Note,
a new Note or Notes in principal amount equal to the unredeemed portion of
the
original Note shall be issued in the name of the Holder thereof upon
cancellation of the original Note;
36
(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 and become due on the date fixed for
redemption;
(f) that,
unless the Company defaults in making such redemption payment, interest on
Notes
called for redemption ceases to accrue on and after the redemption
date;
(g) the
paragraph of the Notes and/or Section of this Indenture pursuant to which the
Notes called for redemption are being redeemed; and
(h) that
no
representation is made as to the, correctness or accuracy of the CUSIP number,
if any, listed in such notice or printed on the Notes.
At
the
Company’s request, the Trustee shall give the notice of redemption in the
Company’s name and at its expense; provided,
however,
that
the Company shall have delivered to the Trustee, at least 45 days prior to
the
redemption date, 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. The notice, if mailed in the manner provided herein
shall be presumed to have been given, whether or not the Holder receives such
notice.
Section
3.04 Effect
of Notice of Redemption.
Once
notice of redemption is mailed in accordance with Section 3.03 hereof, Notes
called for redemption become irrevocably due and payable on the redemption
date
at the redemption price. A notice of redemption may not be
conditional.
Section
3.05 Deposit
of Redemption Price.
Not
later than one Business Day prior to the redemption date, the Company shall
deposit with the Trustee or with the Paying Agent money sufficient to pay the
redemption price of and accrued and unpaid interest 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 on, all Notes to be redeemed.
If
the
Company complies with the preceding paragraph of this Section 3.05, on and
after
the redemption date, interest shall cease to accrue on the Notes or the portions
of Notes called for redemption. If a Note is redeemed on or after a record
date
but on or prior to the related Interest Payment Date, then any accrued and
unpaid interest shall be paid to the Person in whose name such Note was
registered at the close of business on such record date. If any Note called
for
redemption shall not be so paid upon surrender for redemption because of the
failure of the Company to comply with the preceding paragraph, interest shall
accrue on the unpaid principal, from the redemption date until such principal
is
paid, and to the extent permitted by applicable law on any interest accrued
through the date of redemption but not paid on such unpaid principal, in each
case at the rate provided in the Notes and in Section 4.01 hereof.
37
Section
3.06 Notes
Redeemed in Part.
Upon
surrender of a Note that is redeemed in part, the Company shall issue and,
upon
the Company’s written request, the Trustee shall authenticate for the Holder at
the expense of the Company a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
Section
3.07 Optional
Redemption.
(a) The
Company may redeem all or a part of the Notes, from time to time, upon not
less
than 30 nor more than 60 days’ notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest, if any, to the applicable redemption date, if redeemed during the
twelve-month period beginning on October 1 of the years indicated
below:
|
Year
|
Percentage
|
|
2007
|
109%
|
|
2008
|
102%
|
|
2009
|
101%
|
|
2010
and thereafter
|
100%
|
(b) At
any
time prior to September 31, 2007, the Company may redeem all or a part of the
Notes, from time to time, upon not less than 30 nor more than 60 days’ notice,
at the redemption price (expressed as a percentage of principal amount) of
110%
plus accrued and unpaid interest, if any, to the applicable redemption
date.
(c) Any
redemption pursuant to this Section 3.07 shall be made pursuant to Section
3.01
through 3.06 hereof.
Section
3.08 Mandatory
Redemption.
The
Company is not required to make mandatory redemption or sinking fund payments
with respect to the Notes.
Section
3.09 Offer
to Purchase.
In the
event that, pursuant to Sections 4.10 and 4.14 hereof, the Company shall be
required to commence an offer to all Holders to purchase Notes (a “Repurchase
Offer”),
it
shall follow the procedures specified below.
The
Repurchase Offer shall remain open for a period of 20 Business Days following
its commencement and no longer, except to the extent that a longer period is
required by applicable law (the “Offer
Period”).
No
later than five Business Days after the termination of the Offer Period (the
“Purchase
Date”),
the
Company shall purchase the principal amount of Notes required to be purchased
pursuant to Section 4.10 or 4.14 hereof (the “Offer
Amount”)
or, if
less than the Offer Amount has been tendered, all Notes tendered in response
to
the Repurchase Offer. Payment for any Notes so purchased shall be made in the
same manner as interest payments are made.
38
If
the
Purchase Date is on or after an, interest Record Date and on or before the
related Interest Payment Date, any accrued and unpaid interest shall be paid
to
the Person in whose name a Note is registered at the close of business on such
Record Date, and no, additional interest shall be payable to Holders who tender
Notes pursuant to the Repurchase Offer.
Upon
the
commencement of a Repurchase Offer, the Company shall send, by first class
mail,
a notice to the Trustee and each of the Holders, with a copy to the Trustee.
The
notice shall contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Repurchase Offer. The Repurchase Offer
shall be made to all Holders. The notice, which shall govern the terms of the
Repurchase Offer, shall state:
(a) that
the
Repurchase Offer is being made pursuant to this Section 3.09 and Section 4.10
or
4.14 hereof and the length of time the Repurchase Offer shall remain
open;
(b) the
Offer
Amount, the purchase price and the Purchase Date;
(c) that
any
Note not tendered or accepted for payment shall continue to accrue
interest;
(d) that,
unless the Company defaults in making such payment, any Note accepted for
payment pursuant to the Repurchase Offer shall cease to accrue interest after
the Purchase Date;
(e) that
Holders electing to have a Note purchased pursuant to a Repurchase Offer may
only elect to have all of such Note purchased or a portion of such Note in
denominations of $1,000 or integral multiples thereof;
(f) that
Holders electing to have a Note purchased pursuant to any Repurchase Offer
shall
be required to surrender the Note, with the form entitled “Option of Holder to
Elect Purchase” on the reverse of the Note completed, or transfer by book-entry
transfer, to the Company, the Depositary, if appointed by the Company, or a
Paying Agent at the address specified in the notice at least three days before
the Purchase Date;
(g) that
Holders shall be entitled to withdraw their election if the Company, the
Depositary or the Paying Agent, as the case may be, receives, not later than
the
expiration of the Offer Period, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the Note
the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased;
39
(h) that,
if
the aggregate principal amount of Notes surrendered by Holders exceeds the
Offer
Amount required pursuant to Section 4.10, the Company shall select the Notes
to
be purchased pursuant to the terms of Section 3.02 (with such adjustments as
may
be deemed appropriate by the Trustee so that only Notes in denominations of
$1,000, or integral multiples thereof, shall be purchased); and
(i) that
Holders whose Notes were purchased only in part shall be issued new Notes equal
in principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer).
On
or
before the Purchase Date, the Company shall, to the extent lawful, accept for
payment, on a pro
rata
basis to
the extent necessary, the Offer Amount of Notes or portions thereof tendered
pursuant to the Repurchase Offer; or if less than the Offer Amount has been
tendered, all Notes tendered, and shall deliver to the Trustee an Officers’
Certificate stating that such Notes or portions thereof were accepted for
payment by the Company in accordance with the terms of this Section 3.09. The
Company, the Depositary or the Paying Agent, as the case may be, shall promptly
(but in any case not later than five days after the Purchase Date) mail or
deliver to each tendering Holder an amount equal to the purchase price of the
Notes tendered by such Holder and accepted by the Company for purchase, and
the
Company shall promptly issue a new Note, and the Trustee, upon written request
from the Company shall authenticate and mail or deliver such new Note to such
Holder, in a principal amount equal to any unpurchased portion of the Note
surrendered. Any Note not so accepted shall be promptly mailed or delivered
by
the Company to the Holder thereof. The Company shall publicly announce the
results of the Repurchase Offer on the Purchase Date.
Other
than as specifically provided in this Section 3.09, any purchase pursuant to
this Section 3.09 shall be made pursuant to Sections 3.01 through 3.06
hereof.
ARTICLE
IV
COVENANTS
Section
4.01
Payment of Notes.
The
Company shall pay or cause to be paid the principal of, premium, if any, and
interest on the Notes on the dates and in the manner provided in the Notes
and
in this Indenture. Principal, premium, if any, and interest shall be considered
paid on the date due if the Paying Agent, if a Person other than the Company,
a
Subsidiary or affiliate thereof, holds as of 12:00 p.m. (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
accrued and unpaid interest then due.
Beginning
on any date that the Fixed Charge Coverage Ratio for the Company’s most recently
ended four full fiscal quarters for which internal financial statements are
available immediately preceding such date would have been at least 2 to 1
(the“Fixed
Charge Coverage Ratio Test”),
such
Scheduled Rate shall be 1% per annum in excess of the rate then in effect until
(and not including) such date as the Fixed Charge Coverage Ratio Test is
satisfied. In addition, the Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at
the
rate equal to 1% per annum in excess of the then applicable interest rate on
the
Notes to the extent lawful; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments
of
interest (without regard to any applicable grace period) at the same rate to
the
extent lawful.
40
Section
4.02 Maintenance
of Office or Agency.
The
Company shall maintain in the Borough of Manhattan, the City of New York, an
office or agency (which may be an office of the Trustee or an affiliate of
the
Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served.
The
Company shall give prompt written notice to the Trustee of the location, and
any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required, office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of
the
Trustee.
The
Company may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided,
however,
that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, the
City
of New York for such purposes. The Company shall give prompt written notice
to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
The
Company hereby designates the Corporate Trust Office of the Trustee as one
such
office or agency of the Company in accordance with Section 2.03.
Section
4.03 Reports.
(a)
Whether or not required by the SEC, so long as any Notes are outstanding, the
Company shall prepare and furnish to the Holders of Notes, within the time
periods specified in the SEC’s rules and regulations, (i) all quarterly and
annual financial information that would be required to be contained in a filing
with the SEC on Forms 10-Q and 10-K if the Company were required to file such
Forms, including a “Management’s Discussion and Analysis of Financial Condition
and Results of Operations” and, with respect to the annual information only, a
report on the annual financial statements by the Company’s certified independent
accountants; and (ii) all current reports that would be required to be filed
with the SEC on Form 8-K if the Company were required to file such reports.
In
addition, whether or not required by the SEC, the Company shall file a copy
of
all of the information and reports referred to in clauses (i) and (ii) above
with the SEC for public availability within the time periods specified in the
SEC’s rules and regulations (unless the SEC shall not accept such a filing) and
make such information available to securities analysts and prospective investors
upon request. In addition, the Company and the Guarantors have agreed that,
for
so long as any Notes remain outstanding, they shall furnish to the Holders
and
to prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
41
(b) If
the
Company has designated any of its Subsidiaries as Unrestricted Subsidiaries,
then the quarterly and annual financial information required by paragraph (a)
above shall include a reasonably detailed presentation, either on the face
of
the financial statements or in the footnotes thereto, and in “Management’s
Discussion and Analysis of Financial Condition and Results of Operations,” of
the financial condition and results of operations of the Company and its
Restricted Subsidiaries separate from the financial condition and results of
operations of the Unrestricted Subsidiaries of the Company.
Section
4.04 Compliance
Certificate.
i. The
Company and each Guarantor (to the extent that such Guarantor is so required
under the TIA) shall deliver to the Trustee, within 90 days after the end of
each fiscal year, an Officers’ Certificate stating that, to his or her knowledge
the Company has kept, observed, performed and fulfilled its obligations under
this Indenture and is not in default in the performance or observance of any
of
the, terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default shall have occurred, describing all such Defaults or Events
of
Default of which he or she may have knowledge and what action the Company is
taking or proposes to take with respect thereto) and that to his or her
knowledge no event has occurred and is continuing 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.
(a) So
long
as not contrary to the then current recommendations of the American Institute
of
Certified Public Accountants, the year-end financial statements delivered
pursuant to Section 4.03(a) above shall be accompanied by a written statement
of
the Company’s independent public accountants (who shall be a firm of established
national reputation) that in making the examination necessary for certification
of such financial statements, nothing has come to their attention that would
lead them to believe that the Company has violated Article IV or Article V
hereof or, if any such violation has occurred, specifying the nature and period
of existence thereof, it being understood that such accountants shall not be
liable directly or indirectly to any Person for any failure to obtain knowledge
of any such violation.
(b) The
Company shall, so long as any of the Notes are outstanding, deliver to the
Trustee, forthwith, but in no event later than five Business Days, upon 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
4.05 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 is not adverse in any material respect to the
Holders of the Notes.
Section
4.06 Stay,
Extension and Usury Laws.
Each of
the Company and the Guarantors covenants (to the extent that it is permitted
by
applicable law) 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 obligations of the Company and each of the Guarantors and the
performance of this Indenture by the Company and each of the Guarantors; and
each of the Company and the Guarantors (to the extent that it is permitted
by
applicable law) 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.
42
Section
4.07 Restricted
Payments.
(a) The
Company shall not, and shall not permit any of its Restricted Subsidiaries
to,
directly or indirectly:
(i) declare
or pay any dividend or make any other payment or distribution on account of
the
Company’s or any of its Restricted Subsidiaries’ Equity Interests (including,
without limitation, any payment in connection with any merger or consolidation
involving the Company or any of its Restricted Subsidiaries or to the direct
or
indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity
Interests in their capacity as such (other than dividends, payments or
distributions payable in Equity Interests (other than Disqualified Stock) of
the
Company or to the Company or a Restricted Subsidiary of the
Company);
(ii) purchase,
redeem or otherwise acquire or retire for value (including, without limitation,
in connection with any merger or consolidation involving the Company) any Equity
Interests of the Company or any Restricted Subsidiary of the Company held by
Persons other than the Company or any of its Restricted Subsidiaries, other
than
the purchase, redemption or acquisition or retirement for value of all of the
Equity Interests in VARTA not held by the Company or any of its Restricted
Subsidiaries pursuant to, and in accordance with the terms of, the VARTA Joint
Venture Agreement as in effect on the Issue Date to the extent the cash purchase
price does not exceed €1.0 million;
(iii) make
any
payment on or with respect to, or purchase, redeem, defease or otherwise acquire
or retire for value any Indebtedness that is subordinated to the Notes or the
Note Guarantees, except a payment of interest or principal on or after the
Stated Maturity thereof; or
(iv) make
any
Restricted Investment (all such payments and other actions set forth in clauses
(i) through (iv) above being collectively referred to as “Restricted
Payments”),
unless,
at the time of and after giving effect to such Restricted Payment:
(A) no
Default or Event of Default shall have occurred and be continuing or would
occur
as a consequence thereof; and
43
(B) the
Company would, at the time of such Restricted Payment and after giving pro
forma
effect thereto as if such Restricted Payment had been made at the beginning
of
the applicable four-quarter period, have been permitted to incur at least $1.00
of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test
set
forth in Section 4.09; and
(C) such
Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Company and its Restricted Subsidiaries after the Issue
Date (excluding Restricted Payments permitted by clauses (ii), (iii) (iv) (to
the extent such dividends are paid to the Company or any of its Restricted
Subsidiaries) and (v) of Section 4.07(b)), is less than the sum, without
duplication, of:
a. 50%
of
the Consolidated Net Income of the Company for the period (taken as one
accounting period) from the beginning of the first fiscal quarter commencing
after the Issue Date to the end of the Company’s most recently ended fiscal
quarter for which internal financial statements are available at the time of
such Restricted Payment (or, if such Consolidated Net Income for such period
is
a deficit, less 100% of such deficit); plus
(2) 100%
of
the aggregate net cash proceeds received by the Company since the Issue Date
as
a contribution to its common equity capital or from the issue or sale of Equity
Interests of the Company (other than Disqualified Stock) or from the issue
or
sale of convertible or exchangeable Disqualified Stock or convertible or
exchangeable debt securities of the Company that have been converted into or
exchanged for such Equity Interests (other than Equity Interests (or
Disqualified Stock or debt securities) sold to a Subsidiary of the Company);
plus
(3) with
respect to Restricted Investments made by the Company and its Restricted
Subsidiaries after the Issue Date, an amount equal to the net reduction in
Investments (other than reductions in Permitted Investments) in any Person
resulting from repayments of loans or advances, or other transfers of assets,
in
each case to the Company or any Restricted Subsidiary or from the net cash
proceeds from the sale of any such Investment (except, in each case, to the
extent any such payment or proceeds are included in the calculation of
Consolidated Net Income, from the release of any Guarantee (except to the extent
any amounts are paid under such Guarantee) or from redesignations of
Unrestricted Subsidiaries as Restricted Subsidiaries, not to exceed, in each
case, the amount of Investments previously made by the Company or any Restricted
Subsidiary in such Person or Unrestricted Subsidiary; plus
44
(4) $20.0
million.
(b) So
long
as no Default has occurred and is continuing or would be caused thereby, the
preceding clauses of this Section 4.07 shall not prohibit:
(i) the
payment of any dividend within 60 days after the date of declaration thereof,
if
at said date of declaration such payment would have complied with this
Indenture;
(ii) the
redemption, repurchase, retirement, defeasance or other acquisition of any
subordinated Indebtedness of the Company or any Guarantor or of any Equity
Interests of the Company or any Guarantor in exchange for, or out of the net
cash proceeds of a contribution to the common equity of the Company or a
substantially concurrent sale (other than to a Subsidiary of the Company) of,
Equity Interests of the Company (other than Disqualified Stock); provided
that the
amount of any such net cash proceeds that are utilized for any such redemption,
repurchase, retirement, defeasance or other acquisition shall be excluded from
clause (C)(2) of Section 4.07(a);
(iii) the
defeasance, redemption, repurchase or other acquisition of subordinated
Indebtedness of the Company or any Guarantor with the net cash proceeds from
an
incurrence of Permitted Refinancing Indebtedness;
(iv) the
payment of any dividend by a Restricted Subsidiary of the Company to the holders
of its common Equity Interests on a pro
rata
basis;
(v) Investments
acquired as a capital contribution to, or in exchange for, or out of the net
cash proceeds of a substantially concurrent offering of, Equity Interests (other
than Disqualified Stock) of the Company; provided
that the
amount of any such net cash proceeds that are utilized for any such acquisition
or exchange shall be excluded from clause (C)(2) of Section
4.07(a);
(vi) the
repurchase of Capital Stock deemed to occur upon the exercise of options or
warrants if such Capital Stock represents all or a portion of the exercise
price
thereof;
(vii) the
repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of the Company held by any employee, former employee, director
or former director of the Company (or any of its Restricted Subsidiaries) upon
the death, disability or termination of employment of any of the foregoing
pursuant to the terms of any employee equity subscription agreement, stock
option agreement or similar agreement; provided
that the
aggregate price paid for all such repurchased, redeemed, acquired or retired
Equity Interests in any fiscal year shall not exceed the sum of (x) $3.0 million
and (y) the amount of Restricted Payments permitted but not made pursuant to
this clause (vii) in the immediately preceding fiscal year; or
45
(viii) the
repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of any Restricted Subsidiary of the Company from the minority
stockholders (or other holders of minority interest, however designated) of
such
Restricted Subsidiary, for fair market value; provided
that the
aggregate price paid for all such repurchased, redeemed, acquired or retired
Equity Interests shall not exceed $15.0 million.
The
amount of all Restricted Payments (other than cash) shall be the fair market
value on the date of the Restricted Payment of the asset(s) or securities
proposed to be transferred or issued to or by the Company or such Subsidiary,
as
the case may be, pursuant to the Restricted Payment. The fair market value
of
any assets or securities that are required to be valued pursuant to this Section
4.07 shall be determined by the Board of Directors of the Company whose
resolution with respect thereto shall be delivered to the Trustee. Not later
than the date of making any Restricted Payment, the Company shall deliver to
the
Trustee an Officers’ Certificate stating that such Restricted Payment is
permitted and setting forth the basis upon which the calculations required
by
this Section 4.07 were computed, together with a copy of any fairness opinion
or
appraisal required by this Indenture.
Section
4.08 Dividend
and Other Payment Restrictions Affecting Restricted Subsidiaries.
The
Company shall not, and shall not permit any of its Restricted Subsidiaries
to,
directly or indirectly, create or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to:
(a) pay
dividends or make any other distributions on its Capital Stock (or with respect
to any other interest or participation in, or measured by, its profits) to
the
Company or any of its Restricted Subsidiaries or pay any liabilities owed to
the
Company or any of its Restricted Subsidiaries;
(b) make
loans or advances to the Company or any of its Restricted Subsidiaries;
or
(c) transfer
any of its properties or assets to the Company or any of its Restricted
Subsidiaries.
However,
the preceding restrictions shall not apply to encumbrances or restrictions
existing under, by reason of, or with respect to:
46
(i) the
Credit Agreement, Existing Indebtedness or any other agreements in effect on
the
Issue Date and any amendments, modifications, restatements, renewals,
extensions, supplements, refundings, replacements or refinancings thereof,
provided
that the
encumbrances and restrictions in any such amendments, modifications,
restatements, renewals, extensions, supplements, refundings, replacement or
refinancings are no more restrictive, taken as a whole, than those in effect
on
the Issue Date;
(ii) applicable
law, rule, regulation or order;
(iii) any
Person or the property or assets of a Person acquired by the Company or any
of
its Restricted Subsidiaries existing at the time of such acquisition and not
incurred in connection with or in contemplation of such acquisition, which
encumbrance or restriction is not applicable to any Person or the properties
or
assets of any Person, other than the Person, or the property or assets of such
Person, so acquired and any amendments, modifications, restatements, renewals,
extensions, supplements, refundings, replacements or refinancings thereof,
provided
that the
encumbrances and restrictions in any such amendments, modifications,
restatements, renewals, extensions, supplements, refundings, replacement or
refinancings are no more restrictive, taken as a whole, than those contained
in
the Credit Agreement, Existing Indebtedness or such other agreements as in
effect on the date of the acquisition;
(iv) in
the
case of clause (c) of the first paragraph of this Section 4.08:
(A) provisions
that restrict in a customary manner the subletting, assignment or transfer
of
any property or asset that is a lease, license, conveyance or contract or
similar property or asset,
(B) restrictions
existing by virtue of any transfer of, agreement to transfer, option or right
with respect to, or Lien on, any property or assets of the Company or any
Restricted Subsidiary not otherwise prohibited by this Indenture,
or
(C) restrictions
arising or agreed to in the ordinary course of business, not relating to any
Indebtedness, and that do not, individually or in the aggregate, detract from
the value of property or assets of the Company or any Restricted Subsidiary
in
any manner material to the Company or any Restricted Subsidiary;
(v) provisions
with respect to the disposition or distribution of assets or property in joint
venture agreements and other similar agreements entered into in the ordinary
course of business;
47
(vi) any
agreement for the sale or other disposition of all or substantially all of
the
capital stock of, or property and assets of, a Restricted Subsidiary that
restricted distributions by that Restricted Subsidiary periling such sale or
other disposition; and
(vii) Indebtedness
of a Foreign Subsidiary permitted to be incurred under this Indenture;
provided
that (A)
such encumbrances or restrictions are ordinary and customary with respect to
the
type of Indebtedness being incurred; and (B) such encumbrances or restrictions
will not affect the Company’s ability to make principal and interest payments on
the Notes, as determined in good faith by the Board of Directors of the
Company.
Section
4.09 Incurrence
of Indebtedness and Issuance of Preferred Stock. (a)
The Company shall not, and shall not permit any of its Restricted Subsidiaries
to, directly or indirectly, incur any Indebtedness (including Acquired Debt),
and the Company shall not permit any of its Restricted Subsidiaries to issue
any
preferred stock; provided,
however,
that
the Company or any Guarantor may incur Indebtedness, if the Fixed Charge
Coverage Ratio for the Company’s most recently ended four full fiscal quarters
for which internal financial statements are available immediately preceding
the
date on which such additional Indebtedness is incurred would have been at least
2 to 1, determined on a pro forma basis (including a pro forma application
of
the net proceeds therefrom), as if the additional Indebtedness had been incurred
at the beginning of such fourth quarter period.
(b) So
long
as no Default shall have occurred and be continuing or would be caused thereby,
Section 4.09(a) shall not prohibit the incurrence of any of the following items
of Indebtedness (collectively, “Permitted
Debt”):
(i) the
incurrence by (A) the Company or any Foreign Subsidiary of the Company of
Indebtedness under Credit Facilities (and the incurrence by the Guarantors
of
Guarantees thereof) in an aggregate principal amount at any one time outstanding
pursuant to this clause (i) (with letters of credit being deemed to have a
principal amount equal to the maximum potential liability of the Company and
its
Restricted Subsidiaries thereunder) not to exceed $1.6 billion, less the
aggregate amount of all Net Proceeds of Asset Sales applied by the Company
or
any Restricted Subsidiary to permanently repay any such Indebtedness (and,
in
the case of any revolving credit Indebtedness, to effect a corresponding
commitment reduction thereunder) pursuant to Section 4.10 and (B) Foreign
Subsidiaries of Guarantees of other Foreign Subsidiaries’ Indebtedness under
Credit Facilities;
(ii) the
incurrence of Existing Indebtedness;
(iii)
the
incurrence by the Company and the Guarantors of Indebtedness represented by
the
Notes and the related Note Guarantees to be issued on the Issue
Date;
48
(iv) the
incurrence by the Company or any Guarantor of Indebtedness represented by
Capital Lease Obligations, mortgage financings or purchase money obligations,
in
each case, incurred for the purpose of financing all or any part of the purchase
price or cost of construction or improvement of property, plant or equipment
used in the business of the Company or such Guarantor, in an aggregate principal
amount, including all Permitted Refinancing Indebtedness incurred to refund,
refinance or replace any Indebtedness incurred pursuant to this clause (iv),
not
to exceed $30.0 million at any time outstanding;
(v) the
incurrence by the Company or any Restricted Subsidiary of the Company of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds of
which
are used to refund, refinance or replace Indebtedness (other than intercompany
Indebtedness) that was permitted by this Indenture to be incurred under Section
4.09(a) or clauses (ii), (iii), (iv), (v), or (viii) of this Section
4.09(b);
(vi) the
incurrence by the Company or any of its Restricted Subsidiaries of intercompany
Indebtedness owing to and held by the Company or any of its Restricted
Subsidiaries; provided,
however,
that:
(x) if
the
Company or any Guarantor is the obligor on such Indebtedness, such Indebtedness
must be unsecured and expressly subordinated to the prior payment in full in
cash of all Obligations with respect to the Notes, in the case of the Company,
or the Note Guarantee, in the case of a Guarantor;
(y) Indebtedness
owed to the Company or any Guarantor must be evidenced by an unsubordinated
promissory note, unless the obligor under such Indebtedness is the Company
or a
Guarantor; and
(z) (A)
any
subsequent issuance or transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary thereof and (B) any sale or other transfer of any such Indebtedness
to a Person that is not either the Company or a Restricted Subsidiary thereof,
shall be deemed, in each case, to constitute an incurrence of such Indebtedness
by the Company or such Restricted Subsidiary, as the case may be, that was
not
permitted by this clause (vi);
(vii) the
Guarantee by the Company or any of the Guarantors of Indebtedness of the Company
or a Restricted Subsidiary of the Company that was permitted to be incurred
by
another provision of this Section 4.09;
49
(viii) the
incurrence by the Company or any Guarantor of additional Indebtedness in an
aggregate principal amount (or accreted value, as applicable) at any time
outstanding, including all Permitted Refinancing Indebtedness incurred to
refund, refinance or replace any Indebtedness incurred pursuant to this clause
(8), not to exceed $50.0 million;
(ix) the
incurrence of Indebtedness by the Company or, any Restricted Subsidiary of
the
Company arising from the honoring by a bank or other financial institution
of a
check, draft or similar instrument inadvertently (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary course of business;
provided
that
such Indebtedness is extinguished within, five business days of incurrence;
and
(x) the
incurrence of Indebtedness by a Foreign Subsidiary in an aggregate principal
amount for all Foreign Subsidiaries at any one time outstanding pursuant to
this
clause (x) not to exceed 10% of Consolidated Net Tangible Assets of the Company;
provided
that
after giving effect to the incurrence of any such Indebtedness, the Company
would be permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test set forth in Section
4.09(a).
(c) For
purposes of determining compliance with this Section 4.09, in the event that
any
proposed Indebtedness meets the criteria of more than one of the categories
of
Permitted Debt described in clauses (i) through (x) of Section 4.09(b) above,
or
is entitled to be incurred pursuant to Section 4.09(a), the Company shall be
permitted to classify at the time of its incurrence such item of Indebtedness
in
any manner that complies with this Section 4.09. Indebtedness under Credit
Facilities[,
which
Indebtedness is]
outstanding on the date on which Notes are first issued under this
Indenture[,]
shall be
deemed to have been incurred on such date in reliance on the exception provided
by clause (i) of Section 4.09(b). In addition, any Indebtedness originally
classified as incurred pursuant to clauses (i) through (x) of Section 4.09(b)
may later be reclassified by the Company such that it shall be deemed as having
been incurred pursuant to another of such clauses to the extent that such
reclassified Indebtedness could be incurred pursuant to such new clause at
the
time of such reclassification.
(d) Notwithstanding
any other provision of this Section 4.09, the maximum amount of Indebtedness
that may be incurred pursuant to this Section 4.09 shall not be deemed to be
exceeded, with respect to any outstanding Indebtedness due solely to the result
of fluctuations in the exchange rates of currencies.
Section
4.10 Asset
Sales. (a)
The Company shall not, and shall not permit any of its Restricted Subsidiaries
to, consummate an Asset Sale unless:
50
(i) the
Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market
value of the assets or Equity Interests issued or sold or otherwise disposed
of;
(ii) such
fair
market value is determined by the Company’s Board of Directors and evidenced by
a resolution of the Board of Directors set forth in an Officers’ Certificate
delivered to the Trustee; and
(iii) at
least
75% of the consideration therefor received by the Company or such Restricted
Subsidiary is in the form of :cash or Replacement Assets or a combination of
both. For purposes of this clause, each of the following shall be deemed to
be
cash:
(A) any
liabilities (as shown on the Company’s, or such Restricted Subsidiary’s most
recent balance sheet), of the Company or any Restricted Subsidiary (other than
contingent liabilities, Indebtedness that is by its terms subordinated to the
Notes or any Note Guarantee and liabilities to the extent owed to the Company
or
any Affiliate of the Company) that are assumed by the transferee of any such
assets pursuant to a written novation agreement that releases the Company or
such Restricted Subsidiary from further liability; and
(B) any
securities, notes or other obligations received by the Company or any such
Restricted Subsidiary from such transferee that are converted by the Company
or
such Restricted Subsidiary into cash (to the extent of the cash received in
that
conversion) within 90 days of the applicable Asset Sale.
(b) Within
360 days after the receipt of any Net Proceeds from an Asset Sale, the Company
may apply such Net Proceeds at its option:
(i) to
repay
Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness,
to
correspondingly reduce commitments with respect thereto; or
(ii) to
purchase Replacement Assets or make a capital expenditure in or that is used
or
useful in a Permitted Business.
Pending
the final application of any such Net Proceeds, the Company may temporarily
reduce revolving credit borrowings or otherwise invest such Net Proceeds in
any
manner that is not prohibited by this Indenture.
51
(c) Any
Net
Proceeds from Asset Sales that are not applied or invested as provided in the
preceding paragraph shall constitute “Excess
Proceeds.”
Within
10 days after the aggregate amount of Excess Proceeds exceeds $10.0 million,
the
Company shall make an offer (an “Asset
Sale Offer”)
to all
Holders of Notes and all holders of other Indebtedness that is pari
passu
with the
Notes or any Note Guarantee containing provisions similar to those set forth
in
this Indenture with respect to offers to purchase with the proceeds of sales
of
assets, to purchase the maximum principal amount of Notes and such other
pari
passu
Indebtedness that may be purchased out of the Excess Proceeds. The offer price
in any Asset Sale Offer shall be equal to 100% of the principal amount of the
Notes and such other pari
passu
Indebtedness plus accrued and unpaid interest to the date of purchase, and
shall
be payable in cash. If any Excess Proceeds remain after consummation of an
Asset
Sale Offer, the Company may use such Excess Proceeds for any purpose not
otherwise prohibited by this Indenture. If the aggregate principal amount of
Notes and such other pari
passu
Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Notes and such other pari
passu
Indebtedness shall be purchased on a pro
rata
basis
based on the principal amount of Notes and such other pari
passu
Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount
of
Excess Proceeds shall be reset at zero.
(d) Any
Asset
Sale Offer shall be made in accordance with Section 3.09. The Company shall
comply with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with each repurchase of Notes pursuant
to an Asset Sale Offer. To the extent that the provisions of any securities
laws
or regulations conflict with this Section 4.10 or Section 3.09, the Company
shall comply with the applicable securities laws and regulations and shall
not
be deemed to have breached its obligations under this Section 4.10 or Section
3.09 by virtue of such compliance.
Section
4.11 Transactions
with Affiliates. (a)
The Company shall not, and shall not permit any of its Restricted Subsidiaries
to, make any payment to, or sell, lease, transfer or otherwise dispose of any
of
its properties or assets to, or purchase any property or assets from, or enter
into, make, amend, renew or extend any transaction, contract, agreement,
understanding, loan, advance or Guarantee with, or for the benefit of, any
Affiliate (each, an “Affiliate Transaction”), unless:
(i) such
Affiliate Transaction is on terms that are no less favorable to the Company
or
the relevant Restricted Subsidiary than those that would have been obtained
in a
comparable arm’s-length transaction by the Company or such Restricted Subsidiary
with a Person that is not an Affiliate of the Company; and
(ii) the
Company delivers to the Trustee:
(A) with
respect to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $5.0 million, a resolution of
the
Board of Directors of the Company set forth in an Officers’ Certificate
certifying that such Affiliate Transaction or series of related Affiliate
Transactions complies with this Section 4.11 and that such Affiliate Transaction
or series of related Affiliate Transactions has been approved by a majority
of
the disinterested members of the Board of Directors of the Company;
and
52
(B) with
respect to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $15.0 million, an opinion as
to
the fairness to the Company or such Restricted Subsidiary of such Affiliate
Transaction or series of related Affiliate Transactions from a financial point
of view issued by an independent accounting, appraisal or investment banking
firm of national standing.
(b) The
following items shall not be deemed to be Affiliate Transactions and, therefore,
shall not be subject to Section 4.11(a):
(i) transactions
between or among the Company and/or its Restricted Subsidiaries;
(ii) payment
of reasonable and customary fees and compensation to, and reasonable and
customary indemnification arrangements and similar payments on behalf of,
directors of the Company;
(iii) Restricted
Payments that are permitted by this Indenture;
(iv) any
sale
of Capital Stock (other than Disqualified Stock) of the Company;
(v) loans
and
advances to officers and employees of the Company or any of its Restricted
Subsidiaries for bona fide business purposes in the ordinary course of business
consistent with past practice;
(vi) any
employment, consulting, service or termination agreement, or reasonable and
customary indemnification arrangements, entered into by the Company or any
of
its Restricted Subsidiaries, with officers and employees of the Company or
any
of its Restricted Subsidiaries and the payment of compensation to officers
and
employees of the Company or any of its Restricted Subsidiaries (including
amounts paid pursuant to employee benefit plans, employee stock option or
similar plans), in each case in the ordinary course of business and consistent
with past practice; and
53
(vii) any
agreements or arrangements in effect on the Issue Date, or any amendment,
modification, or supplement thereto or any replacement thereof, as long as
such
agreement or arrangement, as so amended, modified, supplemented or replaced,
taken as a whole, is not more disadvantageous to the Company and its Restricted
Subsidiaries than the original agreement as in effect on the Issue Date, as
determined in good faith by the Company’s Board of Directors, and any
transactions contemplated by any of the foregoing agreements or
arrangements.
Section
4.12 Liens.
The
Company shall not, and shall not permit any of its Restricted Subsidiaries
to,
create, incur, assume or otherwise cause or suffer to exist or become effective
any Lien of any kind securing Indebtedness (other than Permitted Liens) upon
any
of their property or assets, now owned or hereafter acquired, unless all
payments due under this Indenture and the Notes are secured on an equal and
ratable basis with the obligations so secured until such time as such
obligations are no longer secured by a Lien.
Section
4.13 Corporate
Existence.
Subject
to Article V hereof, the Company shall do or cause to be done all things
reasonably necessary to preserve and keep in full force and effect (a) 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 (b) the material 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 is not adverse
in
any material respect to the Holders of the Notes.
Section
4.14 Offer
to Repurchase upon Change of Control. (a)
If a Change of Control occurs, each Holder of Notes shall have the right to
require the Company to repurchase all or any part (equal to $1,000 or an
integral multiple thereof) of such Holder’s Notes pursuant to the offer
described below (the “Change
of Control Offer”)
at an
offer price in cash (express as percentages of principal amount) set forth
below
plus accrued and unpaid interest, if any, to the Change of Control Payment
Date,
if purchased during the twelve-month period beginning on October 1 of the years
indicated below:
|
Year
|
Percentage
|
|
2007
|
109%
|
|
2008
|
102%
|
|
2009
|
101%
|
|
2010
and thereafter
|
100%
|
(b) Within
30
days following any Change of Control, the Company shall mail a notice to each
Holder describing the transaction or transactions that constitute the Change
of
Control and which shall be no earlier than 30 days and no later than 60 days
from the date such notice is mailed (the “Change
of Control Payment Date”)
and
stating that the Change of Control Offer is being made pursuant to this Section
4.14 and that all Notes properly tendered pursuant to the Change of Control
Offer will be accepted for payment.
54
(c) Any
Change of Control Offer shall be made in accordance with Section 3.09. The
Company shall comply with the requirements of Rule 14e-1 under the Exchange
Act
and any other securities laws and regulations thereunder to the extent such
laws
and regulations are applicable in connection with the repurchase of the Notes
as
a result of a Change of Control. To the extent that the provisions of any
securities laws or regulations conflict with this Section 4.14, the Company
shall comply with the applicable securities laws and regulations and shall
not
be deemed to have breached its obligations under this Section 4.14 by virtue
of
such compliance.
(d) Prior
to
complying with this Section 4.14, but in any event within 30 days following
a
Change of Control, the Company shall either repay all outstanding Senior Debt
or
obtain the requisite consents, if any, under all agreements governing
outstanding Senior Debt to permit the repurchase of Notes required by this
Section 4.14.
(e) Clause
(b) of this Section 4.14 shall be applicable regardless of whether any other
Sections of this Indenture are applicable. Except as described above with
respect to a Change of Control, this Indenture does not contain provisions
that
permit the Holders of the Notes to require that the Company repurchase or redeem
the Notes in the event of a takeover, recapitalization or similar
transaction.
(f) The
Company shall not be required to make a Change of Control Offer upon a Change
of
Control if a third party makes the Change of Control Offer in the manner, at
the
times and otherwise in compliance with the requirements set forth in this
Indenture applicable to a Change of Control Offer made by the Company and
purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.
Section
4.15 Limitation
on Senior Subordinated Debt.
The
Company shall not incur any Indebtedness that is subordinate or junior in right
of payment to any Senior Debt of the Company unless it is pari
passu
or
subordinate in right of payment to the Notes to the same extent. No Guarantor
shall incur any Indebtedness that is subordinate or junior in right of payment
to the Senior Debt of such Guarantor unless it is pari
passu
or
subordinate in right of payment to such Guarantor’s Note Guarantee to the same
extent.
Section
4.16 Designation
of Restricted and Unrestricted Subsidiaries. (a)
The Board of Directors of the Company may designate any Restricted Subsidiary
of
the Company to be an Unrestricted Subsidiary; provided
that:
(i) any
Guarantee by the Company or any Restricted Subsidiary of any Indebtedness of
the
Subsidiary being so designated shall be deemed to be an incurrence of
Indebtedness by the Company or such Restricted Subsidiary (or both, if
applicable) at the time of such designation, and such incurrence of Indebtedness
would be permitted under Section 4.09;
55
(ii) the
aggregate fair market value of all outstanding Investments owned by the Company
and its Restricted Subsidiaries in the Subsidiary being so designated (including
any Guarantee by the Company or any Restricted Subsidiary of any Indebtedness
of
such Subsidiary) shall be deemed to be a Restricted Investment made as of the
time of such designation and that such Investment would be permitted under
Section 4.07;
(iii) such
Subsidiary does not own any Equity Interests of, or hold any Liens on any
Property of, the Company or any Restricted Subsidiary;
(iv) the
Subsidiary being so designated:
(A) is
not
party to any agreement, contract, arrangement or understanding with the Company
or any Restricted Subsidiary of the Company unless the terms of any such
agreement, contract, arrangement or understanding are no less favorable to
the
Company or such Restricted Subsidiary than those that might be obtained at
the
time from Persons who are not Affiliates of the Company;
(B) is
a
Person with respect to which neither the Company nor any of its Restricted
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;
(C) has
not
Guaranteed or otherwise directly or indirectly provided credit support for
any
Indebtedness of the Company or any of its Restricted Subsidiaries, except to
the
extent such Guarantee or credit support would be released upon such designation;
and
(D) has
at
least one director on its Board of Directors that is not a director or officer
of the Company or any of its Restricted Subsidiaries and has at least one
executive officer that is not a director or officer of the Company or any of
its
Restricted Subsidiaries; and
(v) no
Default or Event of Default would be in existence following such
designation.
56
(b) Any
designation of a Restricted Subsidiary of the Company as an Unrestricted
Subsidiary shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution giving effect to such designation and
an
Officers’ Certificate certifying that such designation complied with the
preceding conditions and was permitted by this Indenture. If, at any time,
any
Unrestricted Subsidiary would fail to meet any of the preceding requirements
described in clause (iv) above, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness, Investments,
or
Liens on the property, of such Subsidiary shall be deemed to be incurred by
a
Restricted Subsidiary of the Company as of such date and, if such Indebtedness,
Investments or Liens are not permitted to be incurred as of such date under
this
Indenture, the Company shall be in default under this Indenture.
(c) The
Board
of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided
that:
(i) such
designation shall be deemed to be an incurrence of Indebtedness by a Restricted
Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if such Indebtedness
is
permitted under Section 4.09, calculated on a pro forma basis as if such
designation had occurred at the beginning of the four-quarter reference
period;
(ii) all
outstanding Investments owned by such Unrestricted Subsidiary shall be deemed
to
be made as of the time of such designation and such Investments shall only
be
permitted if such Investments would be permitted under Section
4.07;
(iii) all
Liens
upon property or assets of such Unrestricted Subsidiary existing at the time
of
such designation would be permitted under Section 4.12; and
(iv) no
Default or Event of Default would be in existence following such
designation.
Section
4.17 Payments
for Consent.
The
Company shall not, and shall not permit any of its Restricted Subsidiaries
to,
directly or indirectly, pay or cause to be paid any consideration to or for
the
benefit of any Holder of Notes for or as an inducement to any consent, waiver
or
amendment of any of the terms or provisions of this Indenture or the Notes
unless such consideration is offered to be paid and is paid to all Holders
of
the Notes that consent, waive or agree to amend in the time frame set forth
in
the solicitation documents relating to such consent, waiver or
agreement.
Section
4.18 Business
Activities.
The
Company shall not, and shall not permit any of its Restricted Subsidiaries
to,
engage in any business other than Permitted Businesses, except to such extent
as
would not be material to the Company and its Restricted Subsidiaries taken
as a
whole.
57
Section
4.19 Limitation
on Issuances and Sales of Equity Interests in Restricted
Subsidiaries.
The
Company shall not transfer, convey, sell, lease or otherwise dispose of, and
shall not permit any of its Restricted Subsidiaries to, issue, transfer, convey,
sell, lease or otherwise dispose of any Equity Interests in any Restricted
Subsidiary of the Company to any Person (other than the Company or a Restricted
Subsidiary of the Company or, if necessary, shares of its Capital Stock
constituting directors’ qualifying shares or issuances of shares of Capital
Stock of foreign Restricted Subsidiaries to foreign nationals, to the extent
required by applicable law), except:
(1) if,
immediately after giving effect to such issuance, transfer, conveyance, sale,
lease or other disposition, such Restricted Subsidiary would no longer
constitute a Restricted Subsidiary and any Investment in such Person remaining
after giving effect to such issuance or sale would have been permitted to be
made under Section 4.07 if made on the date of such issuance or sale and the
cash Net Proceeds from such transfer, conveyance, sale, lease or other;
disposition are applied in accordance with Section 4.10; or
(2) other
sales of Capital Stock of a Restricted Subsidiary by the Company or a Restricted
Subsidiary, provided
that the
Company or such Restricted Subsidiary complies with Section 4.10.
Section
4.20 Additional
Note Guarantees. (a)
If the Company or any of its Restricted Subsidiaries acquires or creates another
Domestic Subsidiary on or after the Issue Date, then that newly acquired or
created Domestic Subsidiary must become a Guarantor and execute a supplemental
indenture and deliver an Opinion of Counsel to the Trustee.
(b) The
Company shall not permit any of its Restricted Subsidiaries, directly or
indirectly, to Guarantee or pledge any assets to secure the payment of any
other
Indebtedness of the Company or any Restricted Subsidiary thereof, other than
Foreign Subsidiaries, unless such Restricted Subsidiary is a Guarantor or
simultaneously executes and delivers a supplemental indenture providing for
the
Guarantee of the payment of the Notes by such Restricted Subsidiary, which
Guarantee shall be senior to or pari
passu
with
such Subsidiary’s Guarantee of such other Indebtedness unless such other
Indebtedness is Senior Debt, in which case the Guarantee of the Notes may be
subordinated to the Guarantee of such Senior Debt to the same extent as the
Notes are subordinated to such Senior Debt. The form of the Note Guarantee
is
attached as Exhibit
B
hereto.
(c) A
Guarantor may not sell or otherwise dispose of all or substantially all of
its
assets to, or consolidate with or merge with or into (whether or not such
Guarantor is the surviving Person), another Person, other than the Company
or
another Guarantor, unless:
58
(i) immediately
after giving effect to that transaction, no Default or Event of Default exists;
and
(ii) either:
(A) the
Person acquiring the property in any such sale or disposition or the Person
formed by or surviving any such consolidation or merger (if other than the
Guarantor) is a corporation organized or existing under the laws of the United
States, any state thereof or the District of Columbia and assumes all the
obligations of that Guarantor under this Indenture, its Note Guarantee and
the
Registration Rights Agreement pursuant to a supplemental indenture satisfactory
to the Trustee; or
(B) such
sale
or other disposition or consolidation or merger complies with Section
4.10.
(d) The
Note
Guarantee of a Guarantor will be released:
(i) in
connection with any sale or other disposition of all of the Capital Stock of
a
Guarantor to a Person that is not (either before or after giving effect to
such
transaction) an Affiliate of the Company, if the sale of all such Capital Stock
of that Guarantor complies with Section 4.10;
(ii) if
the
Company properly designates any Restricted Subsidiary that is a Guarantor as
an
Unrestricted Subsidiary under this Indenture; or
(iii) solely
in
the case of a Note Guarantee created pursuant to Section 4.20(a), upon the
release or discharge of the Guarantee which resulted in the creation of such
Note Guarantee pursuant to this Section 4.20, except a discharge or release
by
or as a result of payment under such Guarantee.
ARTICLE
V
SUCCESSORS
Section
5.01
Merger, Consolidation or Sale of Assets. (a)
The Company shall not, directly or indirectly consolidate or merge with or into
another Person (whether or not the Company is the surviving corporation) or
sell, assign, transfer, convey or otherwise dispose of all or substantially
all
of the properties and assets of the Company and its Restricted Subsidiaries,
taken as a whole, in one or more related transactions, to another Person or
Persons, unless:
59
(i) either:
(A) the Company is the surviving corporation; or (B) the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, conveyance or other disposition shall
have been made (x) is a corporation organized or existing under the laws of
the
United States, any state thereof or the District of Columbia and (y) assumes
all
the obligations of the Company under the Notes, this Indenture, and the
Registration Rights Agreement pursuant to agreements reasonably satisfactory
to
the Trustee;
(ii) immediately
after giving effect to such transaction no Default or Event of Default
exists;
(iii) immediately
after giving effect to such transaction on a pro forma basis, the Company or
the
Person formed by or surviving any such consolidation or merger (if other than
the Company), or to which such sale, assignment, transfer, conveyance or other
disposition shall have been made, shall, on the date of such transaction after
giving pro forma effect thereto and any related financing transactions as if
the
same had occurred at the beginning of the applicable four-quarter period, be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in Section 4.09(a);
(iv) each
Guarantor, unless such Guarantor is the Person with which the Company has
entered into a transaction under this Section 5.01, shall have by amendment
to
its Note Guarantee confirmed that its Note Guarantee shall apply to the
obligations of the Company or the surviving Person in accordance with the Notes
and this Indenture; and
(v) the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders will not recognize income, gain or loss for Federal income
tax
purposes as a result of such transaction and, will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would
have
been the case if such transaction had not occurred.
(b) Neither
the Company nor any Restricted Subsidiary may, directly or indirectly, lease
all
or substantially all of its properties or assets, in one or more related
transactions, to any other Person. Clause (iii) above of this Section 5.01
shall
not apply to any merger, consolidation or sale, assignment, transfer, lease,
conveyance or other disposition of assets between or among the Company and
any
of its Restricted Subsidiaries.
Section
5.02 Successor
Corporation Substituted.
Upon
any consolidation or merger, or any sale, assignment, transfer, conveyance
or
other disposition of all or substantially all of the assets of the Company
in
accordance with Section 5.01 hereof, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such
sale,
assignment, transfer, conveyance or other disposition is made shall succeed
to,
and be substituted for (so that from and after the date of such consolidation,
merger, sale, conveyance or other disposition, the provisions of this Indenture
referring to the “Company” shall refer instead to the successor corporation and
not to the Company), and may exercise every right and power of the Company
under
this Indenture with the same effect as if such successor Person had been named
as the Company herein; provided,
however,
that
the predecessor Company shall not be relieved from the obligation to pay the
principal of and interest on the Notes except in the case of a sale of all
of
the Company’s assets that meets the requirements of Section 5.01
hereof.
60
ARTICLE
VI
DEFAULTS
AND REMEDIES
Section
6.01 Events
of Default.
Each of
the following is an “Event
of Default”:
(i) default
for 30 days in the payment when due of interest on the Notes whether or not
prohibited by Article X of this Indenture;
(ii) default
in payment when due (whether at maturity, upon acceleration, redemption or
otherwise) of the principal of, or premium, if any, on the Notes, whether or
not
prohibited by Article X of this Indenture;
(iii) failure
by the Company or any of its Restricted Subsidiaries to comply with Section
4.10, Section 4.14, Section 4.20(c) or Section 5.01;
(iv) failure
by the Company or any of its Restricted Subsidiaries for 60 days after written
notice by the Trustee or Holders representing 25% or more of the aggregate
principal amount of Notes outstanding to comply with any of the other agreements
in this Indenture;
(v) default
under any, mortgage, indenture or instrument under which there may be issued
or
by which there may be secured or evidenced any Indebtedness for money borrowed
by the Company or any of its Restricted Subsidiaries (or the payment of which
is
Guaranteed by the Company or any of its Restricted Subsidiaries) whether such
Indebtedness or Guarantee now exists, or is created after the Issue Date, if
that default:
(A) is
caused
by a failure to make any payment when due at the final maturity of such
Indebtedness (a “Payment
Default”);
or
(B) results
in the acceleration of such Indebtedness prior to its express
maturity,
61
and,
in
each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been
a
Payment Default or the maturity of which has been so accelerated, aggregates
$10.0 million or more;
(vi) failure
by the Company or any of its Restricted Subsidiaries to pay final judgments
(to
the extent such judgments are not paid or covered by insurance provided by
a
carrier that has acknowledged coverage in writing and has the ability to
perform) aggregating in excess of $10.0 million, which judgments are not paid,
discharged or stayed for a period of 60 days;
(vii) except
as
permitted by this Indenture, any Note Guarantee shall be held in any judicial
proceeding to be unenforceable or invalid or shall cease for any reason to
be in
full force and effect or any Guarantor, or any Person acting on behalf of any
Guarantor, shall deny or disaffirm its obligations under its Note Guarantee;
and
(viii) the
Company or any of its Restricted Subsidiaries that is a Significant Subsidiary
(or any group of Restricted Subsidiaries that together would constitute a
Significant Subsidiary of the Company), pursuant to or within the meaning of
Bankruptcy Law:
(A) commences
a voluntary case,
(B) consents
to the entry of an order for relief against it in an involuntary
case,
(C) makes
a
general assignment for the benefit of its creditors, or
(D) generally
is not paying its debts as they become due; and
(ix) a
court
of competent jurisdiction enters an order or decree under any Bankruptcy Law
that:
(A) is
for
relief against the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary (or any group of Restricted Subsidiaries that together
would constitute a Significant Subsidiary of the Company), in an involuntary
case;
62
(B) appoints
a custodian of the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary (or any group of Restricted Subsidiaries that together
would constitute a Significant Subsidiary of the Company) or for all or
substantially all of the property of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary (or any group of Restricted
Subsidiaries that together would constitute a Significant Subsidiary of the
Company), or
(C) orders
the liquidation of the Company or any of its Restricted Subsidiaries that is
a
Significant Subsidiary (or any group of Restricted Subsidiaries that together
would constitute a Significant Subsidiary of the Company);
and
the
order or decree remains undismissed or unstayed and in effect for 60 consecutive
days.
Section
6.02 Acceleration.
In the
case of an Event of Default specified in clause (viii) or (ix) of Section 6.01
with respect to the Company, any Guarantor or any Significant Subsidiary (or
any
group of Restricted Subsidiaries that together would constitute a Significant
Subsidiary of the Company), all outstanding Notes will become due and payable
immediately without further action or notice. If any other Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare all the Notes to
be
due and payable immediately by notice in writing to the Company specifying
the
Event of Default.
In
the
event of a declaration of acceleration of the Notes because an Event of Default
has occurred and is continuing as a result of the acceleration of any
Indebtedness described in clause (v) of Section 6.01 hereof, the declaration
of
acceleration of the Notes shall be automatically annulled if the holders of
any
Indebtedness described in clause (v) of Section 6.01 hereof have rescinded
the
declaration of acceleration in respect of the Indebtedness if:
(i) the
annulment of the acceleration of Notes would not conflict with any judgment
or
decree of a court of competent jurisdiction; and
(ii) all
existing Events of Default, except nonpayment of principal or interest on the
Notes that became due solely because of the acceleration of the Notes, have
been
cured or waived.
In
the
case of any Event of Default occurring by reason of any willful action or
inaction taken or not taken by or on behalf of the Company with the intention
of
avoiding payment of the premium that the Company would have had to pay if the
Company then had elected to redeem the Notes pursuant to Section 3.07 hereof,
an
equivalent premium shall also become and be immediately due and payable to
the
extent permitted by law upon the acceleration of the Notes.
63
Section
6.03 Other
Remedies.
If an
Event of Default occurs and is continuing, the Trustee may pursue any available
remedy to collect the payment of principal, premium, if any, and interest,
if
any, on the Notes or to enforce the performance of any provision of the Notes
or
this Indenture.
The
Trustee may maintain a proceeding even if it does not possess any of the Notes
or does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holder of a Note in exercising any right or remedy accruing
upon
an Event of Default shall not impair the right or remedy or constitute a waiver
of or acquiescence in the Event of Default. All remedies are cumulative to
the
extent permitted by law.
Section
6.04 Waiver
of Past Defaults.
Holders
of a majority in aggregate principal amount of the then outstanding Notes by
notice to the Trustee may on behalf of the Holders of all of the Notes waive
any
existing Default or Event of Default and its consequences hereunder (including
rescinding any related acceleration of the payment of the Notes), except a
continuing Default or Event of Default (and any related acceleration of the
payment of the Notes) in the payment of the principal of, premium or interest
on, the Notes. The Company shall deliver to the Trustee an Officers’ Certificate
stating that the requisite percentage of Holders have consented to such waiver
and attaching copies of such consents. In case of any such waiver, the Company,
the Trustee and the Holders shall be restored to their former positions and
rights hereunder and under the Notes, respectively. This Section 6.04 shall
be
in lieu of Section 316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) of
the
TIA is hereby expressly excluded from this Indenture and the Notes, as permitted
by the TIA. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or
other Default or impair any right consequent thereon.
Section
6.05 Control
by Majority.
Subject
to Section 2.09, holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising
any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that may involve the
Trustee in personal liability or that the Trustee determines in good faith
may
be unduly prejudicial to the rights of Holders of Notes not joining in the
giving of such direction, and the Trustee shall have the right to decline to
follow any such direction, if the Trustee, being advised by counsel, determines
that such action so directed may not be lawfully taken or if the Trustee, in
good faith shall by a Responsible Officer, determine that the proceedings so
directed may involve the Trustee in personal liability; provided
that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction. In the event the Trustee takes any action
or
follows any direction pursuant to this Indenture, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against any loss
or
expense caused by taking such action or following such direction. This Section
6.05 shall be in lieu of Section 316(a)(1)(A) of the TIA, and such Section
316(a)(1)(A) of the TIA is hereby expressly excluded from this Indenture and
the
Notes, as permitted by the TIA.
64
Section
6.06 Limitation
on Suits.
A
Holder of a Note may not pursue a remedy with respect to this Indenture, the
Notes or, the Note Guarantees unless:
(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 requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability or
expense;
(d) the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer and, if requested, the provision of indemnity;
and
(e) during
such 60-day period the Holders of a majority in principal amount of the then
outstanding Notes do not give the Trustee a direction inconsistent with the
request.
A
Holder
of a Note may not use this Indenture to prejudice the rights of another Holder
of a Note or to obtain a preference or priority over another Holder of a
Note.
Section
6.07 Rights
of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
of a Note to receive payment of principal, premium, if any, and interest on
the
Note, on or after the respective due dates expressed in the Note (including
in
connection with an offer to purchase), or to bring suit for the enforcement
of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
Section
6.08 Collection
Suit by Trustee.
If an
Event of Default specified in Section 6.01 occurs and is continuing, the Trustee
is authorized to recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount of principal of, premium, if
any,
and interest remaining unpaid on the Notes and interest on overdue principal
and, to the extent lawful, interest and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
Section
6.09 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
Guarantor (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 securities or property payable or deliverable on any such claims and
any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay
to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other
amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall
be
paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee
to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of
reorganization, arrangement, adjustment or composition affecting the Notes
or
the rights of any Holder, or to authorize the Trustee to vote in respect of
the
claim of any Holder in any such proceeding.
65
Section
6.10 Priorities.
If the
Trustee collects any money pursuant to this Article, it shall pay out the money
in the following order:
First:
to the
Trustee, its agents and attorneys for amounts due under Section 7.07 hereof,
including payment of all compensation, expense and liabilities incurred, and
all
advances made, by the Trustee and the costs and expenses of
collection;
Second:
to
Holders of Notes for amounts due and unpaid on the Notes for principal, premium,
if any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal, premium,
if
any, and interest, respectively; and
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
parry litigant in the suit, having due regard to the merits and good faith
of
the claims or defenses made by the party litigant. This Section does not apply
to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section
6.07
hereof, or a suit by Holders of more than 10% in principal amount of the then
outstanding Notes.
66
Section
6.12 Restoration
of Rights and Remedies.
If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, any Subsidiary Guarantor, the Trustee and the Holders
shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
Section
6.13 Rights
and Remedies Cumulative.
Except
as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes in Section 2.07, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to
be
exclusive of any other right or remedy, and every right and remedy shall, to
the
extent permitted by law, be cumulative and in addition to every other right
and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section
6.14 Delay
or Omission Not Waiver.
No
delay or omission of the Trustee or of any Holder of any Note to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article VI or by law to the
Trustee or to the Holders may be exercised from time to time, and as often
as
may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section
6.15 Record
Date.
The
Company may set a record date for purposes of determining the identity of
Holders entitled to vote or to consent to any action by vote or consent
authorized or permitted by Sections 6.04, 6.05 and 9.02. Unless the Company
provides otherwise, such record date shall be the later of 30 days prior to
the
first solicitation of such consent or the date of the most recent list of
Holders furnished to the Trustee pursuant to Section 2.05 prior to such
solicitation.
ARTICLE
VII
TRUSTEE
Section
7.01 Duties
of Trustee. (a)
If an Event of Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and
use
the same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of its own
affairs.
(b) Except
during the continuance of an Event of Default:
67
(i) the
duties of the Trustee shall be determined solely by 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 (but need not confirm or investigate the accuracy
of mathematical calculations or other facts purported to be stated
therein).
(c) The
Trustee may not be relieved from, liabilities for its own negligent action,
its
own negligent failure to act, or its own willful misconduct, except
that:
(i) this
paragraph does not limit the effect of paragraph (b) of this
Section;
(ii) the
Trustee shall not be liable for any error of judgment made in good faith by
a
Responsible Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the
Trustee shall not be liable with respect to any action it takes or omits to
take
in good faith in accordance with a direction received by it pursuant to Section
6.05 hereof.
(d) Whether
or not therein expressly so provided, every provision of this Indenture that
in
any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of
this Section.
(e) No
provision of this Indenture shall require the Trustee to expend or risk its
own
funds or incur any liability. The Trustee shall be under no obligation to
exercise any of its rights and powers under this Indenture at the request of
any
Holders, unless such Holder shall have offered to the Trustee security and
indemnity satisfactory to it against any loss, liability or
expense.
(f) The
Trustee shall not be liable for interest on any money received by it except
as
the Trustee may agree in writing with the Company. Money or assets held in
trust
by the Trustee need not be segregated from other funds or assets except to
the
extent required by law.
68
Section
7.02 Rights
of Trustee. (a)
The Trustee may conclusively rely upon any document (whether in its original
or
facsimile form) believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before
the Trustee acts or refrains from acting, it may consult with counsel and 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 and the advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection from liability in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(c) The
Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any agent or attorney appointed with due
care.
(d) The
Trustee shall not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within the rights or powers conferred
upon it by this Indenture.
(e) Unless
otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Company shall be sufficient if signed by an Officer
of the Company.
(f) The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders
unless such Holders shall have offered to the Trustee reasonable 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) 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 Section 6.01 or (ii)
any
Event of Default of which the Trustee shall have received written notification
or otherwise obtained actual knowledge.
Section
7.03 Individual
Rights of Trustee.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Company or any Affiliate of the Company
with the same rights it would have if it were not Trustee. However, in the
event
that the Trustee acquires any conflicting interest it must eliminate such
conflict within 90 days, apply to the SEC for permission to continue as trustee
or resign. Any Agent may do the same with like rights and duties. The Trustee
is
also subject to Sections 7.10 and 7.11 hereof.
69
Section
7.04 Trustee’s
Disclaimer.
The
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes, it shall not be accountable
for the Company’s use of the proceeds from the Notes or any money paid to the
Company or upon the Company’s direction under any provision of this Indenture,
it shall not be responsible for the use or application of any money received
by
any Paying Agent other than the Trustee, and it shall not be responsible for
any
statement or recital herein or any statement in the Notes or any other document
in connection with the sale of the Notes or pursuant to this Indenture other
than its certificate of authentication.
Section
7.05 Notice
of Defaults.
If a
Default or Event of Default occurs and is continuing and if it is known to
the
Trustee, the Trustee shall mail to the Holders of the Notes a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment of principal of, premium, if any,
or
interest on any Note, the Trustee may withhold the notice if and so long as
the
board of directors, the executive committee or a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of the Holders of the Notes.
Section
7.06 Reports
by Trustee to the Holders of the Notes.
Within
60 days after each May 15 beginning with the May 15 following the Issue pate,
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 § 313(a) (but if no event described in TIA § 313(a) has
occurred within the twelve months preceding the reporting date, no report need
be transmitted). The Trustee also shall comply with TIA § 313(b)(2). The Trustee
shall also transmit by mail all reports as required by TIA §
313(c).
A
copy of
each report at the time of its mailing to the Holders of the Notes shall be
mailed to the Company and filed with the SEC and each stock exchange on which
the Notes are listed in accordance with TIA § 313(d). The Company shall promptly
notify the Trustee when the Notes are listed on any securities exchange or
of
any delisting thereof.
Section
7.07 Compensation
and Indemnity.
The
Company shall pay to the Trustee from time to time reasonable compensation
for
its acceptance of this Indenture and services hereunder. The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of
an
express trust. The Company shall reimburse the Trustee promptly upon 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 and any taxes or other expenses incurred by a trust created pursuant
to
Section 8.04 hereof.
The
Company shall indemnify the Trustee and its agents against any and all losses,
liabilities, claims, damages or expenses (including compensation, fees,
disbursements and expenses of Trustee’s agents and counsel) 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 7.07) 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 is judicially determined to have been caused by to its own negligence
or
bad faith. 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.
70
The
obligations of the Company under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.
To
secure
the Company’s payment obligations in this Section 7.07, 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.
The Trustee’s right to receive payment of any amounts due under this Section
7.07 shall not be subordinated to any other liability or Indebtedness of the
Company.
When
the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(viii) or (ix) 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 § 313(b)(2) to the extent
applicable.
Section
7.08 Replacement
of Trustee.
A
resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section 7.08.
The
Trustee may resign in writing at any time and be discharged from the trust
hereby created by so notifying the Company. The Holders of a majority in
principal amount of the then outstanding Notes may 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;
71
(c) a
custodian or public officer takes charge of the Trustee or its property;
or
(d) the
Trustee becomes incapable of acting.
If
the
Trustee resigns or is removed or if a vacancy exists in the office of Trustee
for any reason, the Company shall promptly appoint a successor Trustee. Within
one year after the successor Trustee takes office, the Holders of a majority
in
principal amount of the then outstanding Notes may appoint a successor Trustee
to replace the successor Trustee appointed by the Company.
If
a
successor Trustee does not take office within 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 at the expense of the Company any court of competent jurisdiction
for
the appointment of a successor Trustee.
If
the
Trustee, after written request by any Holder of a Note who has been a Holder
of
a Note for at least six months, fails to comply with Section 7.10, such Holder
of a Note may petition any court of competent jurisdiction for the removal
of
the Trustee and the appointment of a successor Trustee.
A
successor Trustee shall deliver a written acceptance of its appointment to
the
retiring Trustee and to the Company. Thereupon, the resignation or removal
of
the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture.
The
successor Trustee shall mail a notice of its succession to Holders of the Notes.
The retiring Trustee shall promptly transfer all property held by it as Trustee
to the successor Trustee, provided all sums owing to the Trustee hereunder
have
been paid and subject to the Lien provided for in Section 7.07 hereof.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the
Company’s obligations under Section 7.07 hereof shall continue for the benefit
of the retiring Trustee.
Section
7.09 Successor
Trustee by Merger, Etc.
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 organized and
doing business under the laws of the United States of America or of any state
thereof that is authorized under such laws to exercise corporate trustee power,
that is subject to supervision or examination by federal or state authorities
and that has a combined capital and surplus of at least $50 million as set
forth
in its most recent published annual report of condition.
72
This
Indenture shall always have a Trustee who satisfies the requirements of TIA
§§
310(a)(1), (2) and (5). The Trustee is subject to TIA § 310(b); provided,
however,
that
there shall be excluded from the operation of TIA § 310(b)(1) any indenture or
indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding, if the
requirements for such exclusion set forth in TIA § 310(b)(1) are
met.
Section
7.11 Preferential
Collection of Claims Against Company.
The
Trustee is subject to TIA § 311(a), excluding any creditor relationship listed
in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to
TIA § 311(a) to the extent indicated therein. The Trustee hereby waives any
right to set off any claim that it may have against the Company in any capacity
(other than as Trustee and Paying Agent) against any of the assets of the
Company held by the Trustee; provided,
however,
that if
the Trustee is or becomes a lender of any other Indebtedness permitted hereunder
to be pari
passu
with the
Notes, then such waiver shall not apply to the extent of such
Indebtedness.
ARTICLE
VIII
LEGAL
DEFEASANCE AND COVENANT DEFEASANCE; SATISFACTION AND
DISCHARGE
Section
8.01 Option
to Effect Legal Defeasance or Covenant Defeasance.
The
Company may, at the option of its Board of Directors evidenced by a resolution
set forth in an Officers’ Certificate, at any time, elect to have either Section
8.02 or Section 8.03 hereof be applied to all outstanding Notes upon compliance
with the conditions set forth below in this Article VIII.
Section
8.02 Legal
Defeasance and Discharge.
Upon
the Company’s exercise under Section 8.01 hereof of the option applicable to
this Section 8.01, the Company shall, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, be deemed to have been discharged
from its obligations with respect to all outstanding Notes and all obligations
of the Guarantors shall be deemed to have been discharged with respect to their
obligations under the Note Guarantees on the date the conditions set forth
below
are satisfied (hereinafter, “Legal
Defeasance”).
For
this purpose, Legal Defeasance means that the Company and the Guarantors shall
be deemed to have paid and discharged the entire Indebtedness represented by
the
outstanding Notes and Note Guarantees, respectively, which shall thereafter
be
deemed to be “outstanding” only for the purposes of Section 8.08 hereof and the
other Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all its other obligations under such Notes and this Indenture (and
the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following clauses, which
shall survive until otherwise terminated or discharged hereunder: (a) the rights
of Holders of outstanding Notes to receive solely from the trust fund described
in Section 8.04 hereof, and as more fully set forth in such Section, payments
in
respect of the principal of, premium, if any, and interest on such Notes when
such payments are due, (b) the Company’s obligations with respect to such Notes
under Article II and Section 4.02 hereof, (c) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and the Company’s obligations in
connection therewith and (d) this Article VIII. Subject to compliance with
this
Article VIII, the Company may exercise its option under this Section 8.02
notwithstanding the prior exercise of its option under Section 8.03
hereof.
73
Section
8.03 Covenant
Defeasance.
Upon
the Company’s exercise under Section 8.01 hereof of the option applicable to
this Section 8.03, the Company and each of the Guarantors shall, subject to
the
satisfaction of the conditions set forth in Section 8.04 hereof, be released
from their respective obligations under the covenants set forth in Sections
4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19
and
4.20, hereof with respect to the outstanding Notes on and after the date the
conditions set forth in Section 8.04 are satisfied (hereinafter, “Covenant
Defeasance”),
and
the Notes shall thereafter be deemed not “outstanding” for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “outstanding” for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to
the
outstanding Notes, 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
6.01
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 8.01 hereof of the option applicable to this Section 8.03, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, clauses
(i) through (iii) of Section 6.01 and clauses (v) through (vii) of Section
6.01
hereof shall cease to operate and not constitute Events of Default.
Section
8.04 Conditions
to Legal Defeasance or Covenant Defeasance.
The
following shall be the conditions to the application of either Section 8.02,
or
8.03 hereof to the outstanding Notes:
In
order
to exercise either Legal Defeasance or Covenant Defeasance:
(a) the
Company shall irrevocably deposit with the Trustee, in trust, for the benefit
of
the Holders of the Notes, cash in U.S. dollars, non callable Government
Securities, or a combination thereof, in such amounts as shall be sufficient,
in
the opinion of a nationally recognized firm of independent public accountants,
to pay the principal of, premium, if any, and interest on the outstanding Notes
on the Stated Maturity or on the applicable redemption date, as the case may
be,
and the Company shall specify whether the Notes are being defeased to maturity
or to a particular redemption date;
(b) in
the
case of an election under Section 8.02 hereof, the Company shall have delivered
to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that (i) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (ii) since the Issue Date, there
has been a change in the applicable federal income tax law, in either case
to
the effect that, and based thereon such Opinion of Counsel shall confirm 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;
74
(c) in
the
case of an election under Section 8.03 hereof, the Company shall have delivered
to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that the 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) no
Default or Event of Default shall have occurred and be continuing either (i)
on
the date of such deposit, or (ii) insofar as an Event of Default set forth
in
Section 6.01(viii) shall have occurred and be continuing, at any time in the
period ending on the 123rd
day
after the date of deposit;
(e) such
Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under any material agreement or instrument
(other than this Indenture) to which the Company or any of its Subsidiaries
is a
party or by which the Company or any of its Subsidiaries is bound;
(f) the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that, (i) assuming no intervening bankruptcy of the Company or any Guarantor
between the date of deposit and the 123rd
day
following the deposit and assuming that no Holder is an “insider” of the Company
under applicable bankruptcy law, after the 123rd
day
following the deposit, the trust funds shall not be subject to the effect of
Section 547 of the United States Bankruptcy Code or Section 15 of the New York
Debtor and Creditor Law and (ii) the creation of the defeasance trust does
not
violate the Investment Company Act of 1940;
(g) the
Company shall have delivered to the Trustee an Officers’ Certificate stating
that the deposit was not made by the Company with the intent of preferring
the
Holders of Notes over any other creditors of the Company with the intent of
defeating, hindering, delaying or defrauding any other creditors of the Company
or others;
(h) if
the
Notes are to be redeemed prior to their Stated Maturity, the Company shall
have
delivered to the Trustee irrevocable instructions to redeem all of the Notes
on
the specified redemption date; and
(i) the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent, including,
without limitation, the conditions set forth in this Section 8.04, provided
for
or relating to the Legal Defeasance or the Covenant Defeasance have been
complied with.
75
Section
8.05 Satisfaction
and Discharge of Indenture.
This
Indenture shall be discharged and shall cease to be of further effect as to
all
Notes issued hereunder when:
(i) either:
(A) all
Notes
that have been authenticated (except lost, stolen or destroyed Notes that have
been replaced or paid and Notes for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Company) have been delivered
to
the Trustee for cancellation; or
(B) all
Notes
that have not been delivered to the Trustee for cancellation have become due
and
payable by reason of the making of a notice of redemption or otherwise or will
become due and payable within one year and the Company or any Guarantor has
irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust solely for the benefit of the Holders, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such amounts
as
will be sufficient without consideration of any reinvestment of interest, to
pay
and discharge the entire indebtedness on the Notes not delivered to the Trustee
for cancellation for principal, premium, if any, and accrued interest to the
date of maturity or redemption;
(ii) no
Default or Event of Default shall have occurred and be continuing on the date
of
such deposit or shall occur as a result of such deposit and such deposit will
not result in a breach or violation of, or constitute a default under, any
other
instrument to which the Company or any Guarantor is a party or by which the
Company or any Guarantor is bound;
(iii) the
Company or any Guarantor has paid or caused to be paid all sums payable by
it
under this Indenture; and
(iv) the
Company has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Notes at
maturity or the redemption date, as the case may be.
In
addition, the Company must deliver an Officers’ Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction
and
discharge have been satisfied.
76
Section
8.06 Survival
of Certain Obligations.
Notwithstanding Sections 8.02, 8.03 and 8.05, any obligations of the Company
and
the Guarantors in Sections 2.03 through 2.16 (excluding Sections 2.08 and 2.14),
6.07, 7.07, 7.08, and 8.07 through 8.11 shall survive until the Notes have
been
paid in full. Thereafter, any obligations of the Company and the Guarantors
in
Sections 7.07, 8.07, 8.08 and 8.10 shall survive such satisfaction and
discharge. Nothing contained in this Article VIII shall abrogate any of the
obligations or duties of the Trustee under this Indenture.
Section
8.07 Acknowledgment
of Discharge by Trustee.
After
the conditions of Section 8.02, 8.03 or 8.05 have been satisfied, the Trustee
upon written request shall acknowledge in writing the discharge of all of the
Company’s obligations under this Indenture except for those surviving
obligations specified in this Article VIII.
Section
8.08 Deposited
Money and Cash Equivalents to Be Held in Trust; Other Miscellaneous
Provisions.
Subject
to Section 8.09 hereof, all money and non-callable Cash Equivalents (including
the proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 8.08, the “Trustee”)
pursuant to Section 8.04 hereof in respect of the outstanding Notes shall be
held in trust and applied by the Trustee, in accordance with the provisions
of
such Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company 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, but such money
need not be segregated from other funds except to the extent required by
law.
The
Company shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the cash or non-callable Cash Equivalents
deposited pursuant to Section 8.04(a) 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 non-callable Cash Equivalents held by it as provided in Section 8.04
hereof which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the
Trustee (which may be the opinion delivered under Section 8.04 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
8.09 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, and
interest on any Note and remaining unclaimed for two years after such principal,
and premium, if any, and interest has become due and payable shall be paid
to
the Company on its request or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Note shall thereafter, as a secured
creditor, look only to the Company for payment thereof, and all liability of
the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided,
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.
77
Section
8.10 Indemnity
for Government Securities.
The
Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations
or
the principal and interest, if any, received on such U.S. Government
Obligations.
Section
8.11 Reinstatement.
If the
Trustee or Paying Agent is unable to apply any United States dollars or
non-callable Government Securities in accordance with Section 8.02 or 8.03
hereof, as the case may be, by reason of any order or judgment of any court
or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company’s obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant
to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent
is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; provided,
however,
that,
if the Company makes any payment of principal of, premium, if any, or interest
on any Note following the reinstatement of its obligations, the Company shall
be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money held by the Trustee or Paying Agent.
ARTICLE
IX
AMENDMENT,
SUPPLEMENT AND WAIVER
Section
9.01 Without
Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, without the consent of any
Holder of Notes, the Company, the Guarantors and the Trustee may amend or
supplement this Indenture, or the Notes or the Note Guarantees:
(a) to
cure
any ambiguity, defect, error 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 or any Guarantor’s obligations to
Holders of Notes in the case of a merger or consolidation or sale of all or
substantially all of the assets of the Company or of such
Guarantor;
78
(d) to
make
any change that would provide any additional rights or benefits to the Holders
of Notes or that does not adversely affect the legal rights under this Indenture
of any such Holder;
(e) to
comply
with requirements of the SEC in order to effect or maintain the qualification
of
this Indenture under the Trust Indenture Act;
(f) to
comply
with the requirements of Section 4.20; or
(g) to
evidence and provide for the acceptance of appointment by a successor
Trustee.
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 7.02(b) hereof
stating that such amended or supplemental Indenture complies with this Section
9.01, 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 affects its own rights, duties or
immunities under this Indenture or otherwise.
Section
9.02 With
Consent of Holders of Notes.
Except
as provided below in this Section 9.02, this Indenture (including Sections
3.09,
4.10 and 4.14 hereof), the Notes or the Note Guarantees may be amended or
supplemented with the consent of the Holders of at least a majority in principal
amount of the Notes then outstanding (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default
or Event of Default or compliance with any provision of this Indenture or the
Notes may be waived with the consent of the Holders of a majority in principal
amount of the then outstanding Notes (including, without limitation, consents
obtained in connection with a tender offer or exchange offer for, Notes).
Without the consent of the Holders of at least 75% in principal amount of the
Notes then outstanding voting as a single class (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or exchange
offer for, the Notes), an amendment or waiver may not amend or modify any of
the
provisions of this Indenture or the related definitions affecting the
subordination or ranking of the Notes or any Note Guarantee in any manner
adverse to the holders of the Notes or any Note Guarantee. Section 2.08 hereof
shall determine which Notes are considered to be “outstanding” for purposes of
this Section 9.02.
Upon
the
request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of
the
consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee
of
the documents described in Section 7.02(b) hereof stating that any such amended
or supplemental Indenture complies with this Section 9.02, the Trustee shall
join with the Company in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture directly affects the Trustee’s own
rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be obligated to, enter into
such amended or supplemental Indenture.
79
It
shall
not be necessary for the consent of the Holders of Notes under this Section
9.02
to approve the particular form of any proposed amendment or waiver, but it
shall
be sufficient if such consent approves the substance thereof.
After
an
amendment, supplement or waiver under this Section 9.02 becomes effective,
the
Company shall 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.
Subject
to Sections 6.04 and 6.07 hereof, the Holders of a majority in aggregate
principal amount of the Notes then outstanding voting as a single class may
waive compliance in a particular instance by the Company with any provision
of
this Indenture or the Notes. However, without the consent of each Holder
affected, an amendment or waiver under this Section 9.02 may not (with respect
to any Notes held by a non-consenting Holder):
(a) reduce
the principal amount of Notes whose Holders must consent to an amendment,
supplement or waiver;
(b) reduce
the principal of or change the fixed maturity of any Note or alter the
provisions, or waive any payment, with respect to the redemption of the
Notes;
(c) reduce
the rate of or change the time for payment of interest on any Note;
(d) waive
a
Default or Event of Default in the payment of principal of or premium, if any,
or interest on the Notes (except a rescission of acceleration of the Notes
by
the Holders of at least a majority in aggregate principal amount of the Notes
and a waiver of the payment default that resulted from such
acceleration);
(e) make
any
Note payable in money other than U.S. dollars;
(f) make
any
change in the provisions of this Indenture relating to waivers of past Defaults
or the rights of Holders of Notes to receive payments of principal of, or
interest or premium, if any, on the Notes;
80
(g) release
any Guarantor from any of its obligations under its Note Guarantee of these
Notes or this Indenture, except in accordance with the terms of this
Indenture;
(h) impair
the right to institute suit for the enforcement of any payment on or with
respect to the Notes or the Note Guarantees;
(i) amend,
change or modify the obligation of the Company to make and consummate an Asset
Sale Offer with respect to any Asset Sale in accordance with Section 4.10 after
the obligation to make such an Asset Sale Offer has arisen, or the obligation
of
the Company to make and consummate a Change of Control Offer in the event of
a
Change of Control in accordance with Section 4.14 after such Change of Control
has occurred, including, in each case, amending, changing or modifying any
definition relating thereto;
(j) except
as
otherwise permitted under Section 5.01 and Article XI, consent to the assignment
or transfer by the Company or any Guarantor of any of their rights or
obligations under this Indenture; or
(k) make
any
change in Section 6.04 or 6.07 hereof or in the foregoing amendment and waiver
provisions.
Section
9.03 Compliance
with Trust Indenture Act.
Every
amendment or supplement to this Indenture or the Notes shall be set forth in
a
amended or supplemental Indenture that complies with the TIA as then in
effect.
Section
9.04 Revocation
and Effect of Consents.
Until
an amendment, supplement or waiver becomes effective, a consent to it by a
Holder of a Note is a continuing consent by such Holder of a Note and every
subsequent Holder of a Note or portion of a Note that evidences the same debt
as
the consenting Holder’s Note, even if notation of the consent is not made on any
Note. However, any such Holder of a Note or subsequent Holder of a Note may
revoke the consent as to its Note if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section
9.05 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, upon receipt of an Authentication Order,
authenticate new Notes that reflect the amendment, supplement or
waiver.
Failure
to make the appropriate notation or issue a new Note shall not affect the
validity and effect of such amendment, supplement or waiver.
81
Section
9.06 Trustee
to Sign Amendments, Etc.The
Trustee shall sign any amended or supplemental indenture or Note 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 amendment or supplemental indenture or Note until the Board
of
Directors approves it. In executing any amended or supplemental indenture or
Note, the Trustee shall be entitled to receive and (subject to Section 7.01
hereof) shall be fully protected in relying upon, in addition to the documents
required by Section 11.04 hereof, an Officer’s Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental indenture
is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, execute any such amendment, supplement or waiver which affects
the
Trustee’s rights, duties or immunities under this Indenture or otherwise. In
signing any amendment, supplement or waiver, the Trustee shall be entitled
to
receive an indemnity reasonably satisfactory to it.
ARTICLE
X
SUBORDINATION
Section
10.01 Agreement
to Subordinate.
The
Company agrees, and each Holder by accepting a Note agrees, that the
Indebtedness evidenced by the Notes is subordinated in right of payment, to
the
extent and in the manner provided in this Article X, to the prior payment in
full in cash or Cash Equivalents of all Senior Debt (whether outstanding on
the
Issue Date or hereafter created, incurred, assumed or guaranteed), and that
the
subordination is for the benefit of the holders of Senior Debt.
Section
10.02 Liquidation;
Dissolution; Bankruptcy.
The
holders of Senior Debt of the Company shall be entitled to receive payment
in
full in cash or Cash Equivalents of all Obligations due in respect of Senior
Debt of the Company (including interest after the commencement of any bankruptcy
proceeding at the rate specified in the applicable Senior Debt of the Company
whether or not an allowed claim) before the Holders of Notes shall be entitled
to receive any payment with respect to the Notes (except that Holders of Notes
may receive and retain Permitted Junior Securities and payments made from the
trust pursuant to Article VIII hereof), in the event of any distribution to
creditors of the Company in connection with (a) any liquidation or dissolution
of the Company; (b) any bankruptcy, reorganization, insolvency, receivership
or
similar proceeding relating to the Company or its property; (c) any assignment
by the Company for the benefit of its creditors; or (d) any marshaling of the
Company’s assets and liabilities.
Section
10.03 Default
on Designated Senior Debt.
The
Company shall not make any payment in respect of the Notes (except in Permitted
Junior Securities or from the trust pursuant to Article VIII hereof)
if:
(a) a
payment
default on Designated Senior Debt of the Company occurs and is continuing;
or
82
(b) any
other
default (a “nonpayment default”) occurs and is continuing on any series of
Designated Senior Debt of the Company that permits holders of that series of
Designated Senior Debt of the Company to accelerate its maturity and the Trustee
receives a notice of such default (a “Payment
Blockage Notice”)
from
the Company or (i) with respect to Designated Senior Debt incurred pursuant
to
the Credit Agreement, the agent for the lenders thereunder and (ii) with respect
to any other Designated Senior Debt, the holders of such Designated Senior
Debt.
(c) Payments
on the Notes may and shall be resumed:
(i) in
the
case of a payment default on Designated Senior Debt of the Company, upon the
date on which such default is cured or waived; and
(ii) in
case
of a nonpayment default, the earlier of the date on which such default is cured
or waived or 179 days after the date on which the applicable Payment Blockage
Notice is received, unless the maturity of such Designated Senior Debt of the
Company has been accelerated.
(d) No
new
Payment Blockage Notice may be delivered unless and until:
(i) 360
days
have elapsed since the delivery of the immediately prior Payment Blockage
Notice; and
(ii) all
scheduled payments of principal, interest and premium, if any, on the Notes
that
have come due have been paid in full in cash.
(e) No
nonpayment default that existed or was continuing on the date of delivery of
any
Payment Blockage Notice to the Trustee shall be, or be made, the basis for
a
subsequent Payment Blockage Notice.
Section
10.04 Acceleration
of Securities.
If
payment of the Notes is accelerated because of an Event of Default, the Company
and the Trustee shall promptly notify holders of Senior Debt of the
acceleration.
Section
10.05 When
Distribution Must Be Paid Over.
In the
event that the Trustee or any Holder receives any payment of any Obligations
with respect to the Notes (except in Permitted Junior Securities or from the
trust pursuant to Article VIII hereof) at a time when the payment is prohibited
by this Article and the Trustee or such Holder, as applicable, has actual
knowledge that such payment is prohibited by Article X hereof, such payment
shall be held by the Trustee or such Holder, as applicable, in trust for the
benefit of the holders of the Senior Debt of the Company, upon written request
of the holders of the Senior Debt of the Company shall be paid forthwith over
and delivered, to the holders of Senior Debt as their interests may appear
or
their proper Representative, for application to the payment of all Obligations
with respect to Senior Debt remaining unpaid to the extent necessary to pay
such
Obligations in full in accordance with their terms, after giving effect to
any
concurrent payment or distribution to or for the holders of Senior
Debt.
83
With
respect to the holders of Senior Debt, the Trustee undertakes to perform only
such obligations on the part of the Trustee as are specifically set forth in
this Article X, and no implied covenants or obligations with respect to the
holders of Senior Debt shall be read into this Indenture against the Trustee.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Debt, and shall not be liable to any such holders if the Trustee shall
pay over or distribute to or on behalf of Holders or the Company or any other
Person money or assets to which any holders of Senior Debt shall be entitled
by
virtue of this Article X, except if such payment is made as a result of the
willful misconduct or gross negligence of the Trustee.
Section
10.06 Notice
by the Company.
The
Company shall promptly notify the Trustee and the Paying Agent in writing of
any
facts known to the Company that would cause a payment of any Obligations with
respect to the Notes to violate this Article X, but failure to give such notice
shall not affect the subordination of the Notes to the Senior Debt as provided
in this Article X.
Section
10.07 Subrogation.
After
all Senior Debt is paid in full and until the Notes are paid in full, Holders
of
Notes shall be subrogated (equally and ratably with all other Indebtedness
pari
passu
with the
Notes) to the rights of holders of Senior Debt to receive distributions
applicable to Senior Debt to the extent that distributions otherwise payable
to
the Holders of Notes have been applied to the payment of Senior Debt. A
distribution made under this Article X to holders of Senior Debt that otherwise
would have been made to Holders of Notes is not, as between the Company and
Holders, a payment by the Company on the Notes.
Section
10.08 Relative
Rights.
This
Article X defines the relative rights of Holders of Notes and holders of Senior
Debt. Nothing in this Indenture shall:
(a) impair,
as between, the Company and Holders of Notes, the obligation of the Company,
which is absolute and unconditional, to pay principal of and interest on the
Notes in accordance with their terms;
(b) affect
the relative rights of Holders of Notes and creditors of the Company other
than
their rights in relation to holders of Senior Debt; or
(c) prevent
the Trustee or any Holder of Notes from exercising its available remedies upon
a
Default or Event of Default, subject to the rights of holders and owners of
Senior Debt to receive distributions and payments otherwise payable to Holders
of Notes.
84
If
the
Company fails because of this Article X to pay principal of or interest on
a
Note on the due date, the failure is still a Default or Event of
Default.
Section
10.09 Subordination
May Not Be Impaired by the Company.
No
right of any holder of Senior Debt to enforce the subordination of the
Indebtedness evidenced by the Notes shall be impaired by any act or failure
to
act by the Company or any Holder or by the failure of the Company or any Holder
to comply with this Indenture.
Section
10.10 Distribution
or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of Senior
Debt, the distribution may be made and the notice given to their
Representative.
Upon
any
payment or distribution of assets of the Company referred to in this Article
X,
the Trustee and the Holders of Notes shall be entitled to rely upon any order
or
decree made by any court of competent jurisdiction or upon any certificate
of
such Representative or of the liquidating trustee or agent or other Person
making any distribution to the Trustee or to the Holders of Notes for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid
or
distributed thereon and all other facts pertinent thereto or to this Article
X.
Section
10.11 Rights
of Trustee and Paying Agent.
Notwithstanding this Article X or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment or distribution by the Trustee, and
the
Trustee and the Paying Agent may continue to make payments on the Notes, unless
the Trustee shall have received at its Corporate Trust Office at least five
Business Days prior to the date of such payment written notice of facts that
would cause the payment of any Obligations with respect to the Notes to violate
this Article X. Only the Company or a Representative may give the notice.
Nothing in this Article X shall impair the claims of, or payments to, the
Trustee under or pursuant to Section 7.07 hereof.
The
Trustee in its individual or any other capacity may hold Senior Debt with the
same rights it would have if it were not Trustee. Any Agent may do the same
with
like rights.
Section
10.12 Authorization
to Effect Subordination.
Each
Holder of Notes, by the Holder’s acceptance thereof, authorizes and directs the
Trustee on such Holder’s behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article X,
and
appoints the Trustee to act as such Holder’s attorney-in-fact for any and all
such purposes. If the Trustee does not file a proper proof of claim or proof
of
debt in the form required in any proceeding referred to in Section 6.09 hereof
before the expiration of the time to file such claim, the lenders under the
Credit Agreement are hereby authorized to file an appropriate claim for and
on
behalf of the Holders of the Notes.
85
ARTICLE
XI
NOTE
GUARANTEES
Section
11.01 Guarantee.
Subject
to this Article XI each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of this Indenture, the Notes or the
obligations of the Company hereunder or thereunder, that:
(a) (i)
the
principal of and interest on the Notes will be promptly paid in full when due,
whether at maturity, by acceleration, redemption or otherwise, and interest
on
the overdue principal of and interest on the Notes, if any, if lawful (subject
in all cases to any applicable grace period provided herein), and all other
obligations of the Company to the Holders or the Trustee hereunder or thereunder
will be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and (ii) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that same will be
promptly paid in full when due or performed in accordance with the terms of
the
extension or renewal, whether at Stated Maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so
guaranteed for whatever reason, the Guarantors shall be jointly and severally
obligated to pay the same immediately. Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.
(b) The
Guarantors hereby agree that their obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or
this
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to this Indenture, the recovery of
any
judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge
or
defense of a Guarantor. Subject to Section 6.06 hereof and to the extent
permitted by applicable law, each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event
of
insolvency or bankruptcy of the Company, any right to require a proceeding
first
against the Company, protest, notice and all demands whatsoever and covenant
that this Note Guarantee shall not be discharged except by complete performance
of the obligations contained in the Notes and this Indenture.
(c) If
any
Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors or any custodian, trustee, liquidator or other similar
official acting in relation to either the Company or the Guarantors, any amount
paid by either to the Trustee or such Holder, this Note Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and
effect.
(d) Each
Guarantor agrees that it shall not be entitled to any right of subrogation
in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby. Each Guarantor further
agrees that, as between the Guarantors, on the one hand, and the Holders and
the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article VI hereof for the purposes
of
this Note Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (y) in the event of any declaration of acceleration of such obligations
as
provided in Article VI hereof, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Guarantors for the purpose of
this
Note Guarantee. The Guarantors shall have the right to seek contribution from
any non-paying Guarantor so long as the exercise of such right does not impair
the rights of the Holders under the Note Guarantee.
86
Section
11.02 Subordination
of Note Guarantee.
The
Obligations of each Guarantor under its Note Guarantee pursuant to this Article
XI shall be subordinated to the Guarantee of any Senior Debt of such Guarantor
on the same basis as the Notes are subordinated to Senior Debt of the Company.
For the purposes of the foregoing sentence, the Trustee and the Holders shall
have the right to receive and/or retain payments by any of the Guarantors only
at such times as they may receive and/or retain payments in respect of the
Notes
pursuant to this Indenture, including Article X hereof.
Section
11.03 Limitation
on Guarantor Liability.
Each
Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that
it
is the intention of all such parties that the Note Guarantee of such Guarantor
not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer
Act
or any similar federal or state law to the extent applicable to any Note
Guarantee. To effectuate the foregoing intention, the Trustee, the Holders
and
the Guarantors hereby irrevocably agree that the obligations of such Guarantor
shall, after giving effect to such maximum amount and all other contingent
and
fixed liabilities of such Guarantor that are relevant under such laws, and
after
giving effect to any collections from, rights to receive contribution from
or
payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article XI, result in the
obligations of such Guarantor under its Note Guarantee not constituting a
fraudulent transfer or conveyance.
Section
11.04 Execution
and Delivery of Note Guarantee.
To
evidence its Note Guarantee set forth in Section 11.01, each Guarantor hereby
agrees that a notation of such Note Guarantee substantially in the form included
in Exhibit
B
attached
hereto shall be endorsed by an Officer of such Guarantor on each Note
authenticated and delivered by the Trustee and that this Indenture shall be
executed on behalf of such Guarantor by its President or one of its Vice
Presidents.
Each
Guarantor hereby agrees that its Note Guarantee set forth in Section 11.01
shall
remain in full force and effect notwithstanding any failure to endorse on each
Note a notation of such Note Guarantee.
If
an
Officer whose signature is on this Indenture or on the Note Guarantee no longer
holds that office at the time the Trustee authenticates the Note on which a
Note
Guarantee is endorsed, the Note Guarantee shall be valid
nevertheless.
87
The
delivery of any Note by the Trustee, after the authentication thereof hereunder,
shall constitute due delivery of the Note Guarantee set forth in this Indenture
on behalf of the Guarantors.
Section
11.05 Releases
Following Sale of Assets.
Any
Guarantor shall be released and relieved of any obligations under its Note
Guarantee, (a) in connection with any sale of all of the Capital Stock of that
Guarantor (including by way of merger or consolidation) to a Person that is
not
(either before or after giving effect to such transaction) an Affiliate of
the
Company, if the sale of all of such Capital Stock of that Guarantor complies
with Section 4.10 hereof, including the application of the Net Proceeds
therefrom; (b) if the Company designated such Subsidiary Guarantor as an
Unrestricted Subsidiary in accordance with this Indenture; or (c) solely in
the
case of a Note Guarantee created pursuant to Section 4.20(a), upon the release
or discharge of the Guarantee which resulted in the creation of such Note
Guarantee pursuant to Section 4.20, except a discharge or release by or as
a
result of payment under such Guarantee.
Any
Guarantor not released from its obligations under its Note Guarantee shall
remain liable for the full amount of principal of and interest on the Notes
and
for the other obligations of any Guarantor under this Indenture as provided
in
this Article XI.
Section
11.06 Additional
Guarantors.
The
Company covenants and agrees that it shall cause any Person which becomes
obligated to become a Guarantor, pursuant to the terms of Section 4.20, to
execute a supplemental indenture substantially in the form of Exhibit
C
hereto
and any other documentation requested by the Trustee satisfactory in form to
the
Trustee in accordance with Section 4.20 pursuant to which such Restricted
Subsidiary shall guarantee the obligations of the Company under the Notes and
this Indenture in accordance with this Article XI with the same effect and
to
the same extent as if such Person had been named herein as a Subsidiary
Guarantor.
Section
11.07 Notation
Not Required.
Neither
the Company nor the Guarantors shall be required to make a notation on the
Notes
to reflect any Note Guarantee or any release, termination or discharge
thereof.
Section
11.08 Successors
and Assigns.
This
Article XI shall be binding upon the Guarantors and each of their successors
and
assigns 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 conferred upon
that parry in this Indenture and in the Notes shall automatically extend to
and
be vested in such transferee or assigns, all subject to the terms and conditions
of this Indenture.
Except
as
set forth in Article IV and V hereof, and notwithstanding the provisions of
this
Section, nothing contained in this Indenture shall prevent any consolidation
or
merger of a Guarantor with or into the Company or another Guarantor, or will
prevent the sale or conveyance of the property of a Guarantor as an entirety
or
substantially as an entirety to the Company or another Guarantor.
88
Section
11.09 No
Waiver.
Neither
a failure nor a delay on the part of either the Trustee or the Holders in
exercising any right, power or privilege under this Article XI shall operate
as
a waiver thereof, nor shall a single or partial exercise thereof preclude any
other or further exercise of any right, power or privilege. The rights, remedies
and benefits of the Trustee and the Holders herein expressly specified are
cumulative and are not exclusive of any other rights, remedies or benefits
which
either may have under this Article XI at law, in equity, by statute or
otherwise.
Section
11.10 Modification.
No
modification, amendment or waiver of any provision of this Article XI, nor
the
consent to any departure by the Guarantor therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Tnstee, and
then
such waiver or consent shall be effective only in the specific instance and
for
the purpose for which given. No notice to or demand on the Guarantor in any
case
shall entitle the Guarantor to any other or further notice or demand in the
same, similar or other circumstance.
ARTICLE
XII
MISCELLANEOUS
Section
12.01 Trust
Indenture Act Controls.
This
Indenture is subject to the provisions of the TIA that are required to be a
part
of this Indenture, and shall, to the extent applicable, be governed by such
provisions. If any provision of this Indenture modifies any TIA provision that
may be so modified, such TIA provision shall be deemed to apply to this
Indenture as so modified. If any provision of this Indenture excludes any TIA
provision that may be so excluded, such TIA provision shall be excluded from
this Indenture.
The
provisions of TIA §§ 310 through 317 that impose duties on any Person (including
the provisions automatically deemed included unless expressly excluded by this
Indenture) are a part of and govern this Indenture, whether or not physically
contained herein.
Section
12.02 Notices.
Any
notice or communication by the Company, any Guarantor or the Trustee to the
others is duly given if in writing and delivered in Person or mailed by first
class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
others’ address.
If
to the
Company and/or any Guarantor:
Spectrum
Brands, Inc.
Six
Concourse Parkway, Suite 3300
Atlanta,
Georgia 30328
Facsimile:
[_________]
Attention:
General Counsel
89
with
a
copy to:
Skadden,
Arps, Slate, Meagher & Flom LLP
One
Beacon Street
Boston,
Massachusetts 02108-3194
Facsimile:
617-305-4815
Attention:
Margaret A. Brown, Esq.
If
to the
Trustee:
[__________]
Facsimile:
[___________]
Attention:
[___________]
The
Company, any Guarantor or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or
communications.
All
notices and communications (other than those sent to Holders) shall be deemed
to
have been duly given: (i) at the time delivered by hand, if personally
delivered; (ii) five Business Days after being deposited in the mail, postage
prepaid, if mailed; (iii) when answered back, (iv) if telexed; when receipt
acknowledged, if telecopied; and (v) 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 § 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
12.03 Communication
by Holders of Notes with Other Holders of Notes.
Holders
may communicate pursuant to TIA § 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 §
312(c).
Section
12.04 Certificate
and Opinion as to Conditions Precedent.
Upon
any request or application by the Company to the Trustee to take any action
under this Indenture (other than under Section 2.02 hereof unless required
by
the TIA), the Company shall furnish to the Trustee:
90
(a) an
Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 12.05 hereof)
stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied;
(b) an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 12.05 hereof) stating
that, in the opinion of such counsel, all such conditions precedent and
covenants have been satisfied; and
(c) where
applicable, a certificate or opinion by an independent certified public
accountant satisfactory to the Trustee that complies with TIA §
314(c).
Section
12.05 Statements
Required in Certificate or Opinion.
Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant
to
TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall
include:
(a) a
statement that the Person making such certificate or opinion has read such
covenant or condition;
(b) a
brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based;
(c)
a
statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
satisfied; and
(d) a
statement as to whether or not, in the opinion of such Person, such condition
or
covenant has been satisfied.
Section
12.06 Rules
by Trustee and Agents.
The
Trustee may make reasonable rules for action by or at a meeting of Holders.
The
Registrar or Paying Agent may make reasonable rules and set reasonable
requirements for its functions.
Section
12.07 No
Personal Liability of Directors, Officers, Employees and
Stockholders.
No
director, officer, employee, agent, manager, member, incorporator, stockholder
or other equityholder of the Company or any Guarantor, as such, shall have
any
liability for any obligations of the Company or the Guarantors under the Notes,
the Note Guarantees, this Indenture or for any claim based on, in respect of,
or
by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes. Such waiver may not
be
effective to waive liabilities under the federal securities laws.
91
Section
12.08 Governing
Law.
THE
INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE
THIS
INDENTURE, THE NOTES AND THE NOTE GUARANTEES.
Section
12.09 No
Adverse Interpretation of Other Agreements.
This
Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Company or its Subsidiaries or of any other Person. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
All agreements of each Guarantor in this Indenture shall bind its
successors.
Section
12.10 Successors.
All
agreements of the Company in this Indenture and the Notes shall bind its
successors. All agreements of the Trustee in this Indenture shall bind its
successors. All agreements of each Guarantor in this Indenture shall bind its
successors.
Section
12.11 Severability.
In case
any provision in this Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section
12.12 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
12.13 Table
of Contents, Headings, Etc.The
Table
of Contents, Cross-Reference Table and Headings of the Articles and Sections
of
this Indenture have been inserted for convenience of reference only, are not
to
be considered a part of this Indenture and shall in no way modify or restrict
any of the terms or provisions hereof.
[Signatures
on following page]
92
IN
WITNESS WHEREOF, the parties have executed this Indenture as of the date first
written above.
SPECTRUM
BRANDS, INC.
By:__________________________________
Name:
Title:
[GUARANTORS]
By:__________________________________
Name:
Title:
[WELLS
FARGO BANK, N.A.], as trustee
By:__________________________________
Name:
Title:
93
EXHIBIT
A
[Face
of Note]
[THIS
GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING
THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF; AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT
TO SECTION 2.06 OF THE INDENTURE; (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.12 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.]
|
No.
____
|
**$___________**
|
SPECTRUM
BRANDS, INC.
[Variable
Rate Toggle Interest Pay-In-Kind Senior Subordinated Notes ue
2013]
Spectrum
Brands, Inc. (the “Company”),
for
value received, promises to pay to CEDE & Co., or its registered assigns,
the principal sum of [Amount
of Note]
$
_________ Dollars on October 1, 2013.
Interest
Payment Dates: April 1 and October 1 of each year, starting on October 1,
2007.
Record
Dates: March 15 and September 15.
Reference
is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect
as
if set forth at this place.
IN
WITNESS WHEREOF, the Company has caused this Note to be signed manually or
by
facsimile by its duly authorized officers.
SPECTRUM
BRANDS, INC.
By:__________________________________
Name:
Title:
(Trustee’s
Certificate of Authentication)
This
is
one of the [Variable
Rate Toggle Interest Pay-In-Kind Senior Subordinated Notes due 2013]
referred
to in the within-mentioned Indenture.
Dated:
[WELLS
FARGO BANK, N.A.]
as
Trustee
By:
_______________________
Authorized Signatory
Authorized Signatory
A-2
[Reverse
Side of Note]
SPECTRUM
BRANDS, INC.
[Variable
Rate Toggle Interest Pay-In-Kind Senior Subordinated Notes due 2013]
Capitalized
terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.
1. Interest.
The
Company promises to pay interest on the principal amount and premium, if any,
of
this Note at the Scheduled Rate per annum applicable to the then current Form
of
consideration in which interest is payable from the date hereof until Maturity.
The Company shall pay interest 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”).
Interest on the Notes shall accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from the date of issuance;
provided
that if
there is no existing Default in the payment of interest, and if this Note is
authenticated between a Record Date referred to on the face hereof and the
next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided further
that the
first Interest Payment Date shall be October 1, 2007. Beginning
on any date that the Fixed Charge Coverage Ratio for the Company’s most recently
ended four full fiscal quarters for which internal financial statements are
available immediately preceding such date would have been at least 2 to 1
(the“Fixed
Charge Coverage Ratio Test”),
such
Scheduled Rate shall be 1% per annum in excess of the rate then in effect until
(and not including) such date as the Fixed Charge Coverage Ratio Test is
satisfied. In addition, the Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, from time to time on demand at a rate that is 1% per annum
in
excess of the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace 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.
On
any
date not less than thirty (30) days prior to any Interest Payment Date (the
“Election Notification Date”), the Company may Elect the Form of consideration
in which interest is payable on such Interest Payment Date; provided that if
the
Company does not so Elect or Elects an Invalid Form, such interest will be
payable either in the then current Form or, if such Form does not constitute
a
Valid Form on the Election Notification Date or no current Form exists, in
Cash
Form.
A
Form
will constitute a valid Form (a “Valid
Form”)
if,
with respect to any Election Notification Date, the applicable conditions are
met:
(i)
The
Cash
Form shall constitute a Valid Form on any Election Notification
Date.
A-3
(ii) From
and
including October 2, 2009 until October 1, 2010, the PIK Form shall constitute
a
Valid Form if the Company’s common stock has closed at a per share sale price
greater than $5.00, as reported on the New York Stock Exchange, for each of
the
ten (10) consecutive Trading Days immediately prior to such Election
Notification Date. The PIK Form shall constitute a Valid Form on any Election
Notification Date on or prior to October 1, 2009 and shall not constitute a
Valid Form on any Election Notification date on or after October 2,
2010.
Any
Form
that does not constitute a Valid Form shall be an invalid Form (an “Invalid
Form”).
2. Method
of Payment.
The
Company shall pay interest on the Notes (except defaulted interest) to the
Persons who are registered Holders of Notes at the close of business on the
Record Date immediately preceding the Interest Payment Date, even if such Notes
are canceled after such Record Date and on or before such Interest Payment
Date,
except as provided in Section 2.13 of the Indenture with respect to defaulted
interest. The Notes shall be payable as to principal, premium, if any, and
interest at the office or agency of the Company maintained for such purpose
within or without the City and State of New York, or, at the option of the
Company, payment of interest may be made by check mailed to the Holders at
their
addresses set forth in the register of Holders, and provided
that
payment by wire transfer of immediately available funds shall be required with
respect to principal of and interest, premium on, all Global Notes and all
other
Notes the Holders of which shall have provided wire transfer instructions to
the
Company or the Paying Agent. Such payment shall be in such coin or currency
of
the United States of America as at the time of payment is legal tender for
payment of public and private debts.
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 [ ], 2007 (the
“Indenture”)
among
the Company, the Guarantors 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. The Notes are subject to all
such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. To the extent any provision of this Note conflicts
with
the express provisions of the Indenture, the provisions of the Indenture shall
govern and be controlling.
5. Optional
Redemption.
(a) The
Company may redeem all or a part of the Notes, from time to time, upon not
less
than 30 nor more than 60 days’ notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest , if any, to the applicable redemption date, if redeemed during the
twelve-month period beginning on October 1 of the years indicated
below:
A-4
|
Year
|
Percentage
|
|
2007
|
109%
|
|
2008
|
102%
|
|
2009
|
101%
|
|
2010
and thereafter
|
100%
|
(b) At
any
time prior to September 31, 2007, the Company may redeem all or a part of the
Notes, from time to time, upon not less than 30 nor more than 60 days’ notice,
at the redemption price (expressed as a percentage of principal amount) of
110%
plus accrued and unpaid interest , if any, to the applicable redemption
date.
6. Repurchase
at Option of Holder.
(a) If
a
Change of Control occurs, each Holder of Notes shall have the right to require
the Company to repurchase all or any part (equal to $1,000 or an integral
multiple thereof) of such Holder’s Notes pursuant to the offer described below
(the “Change
of Control Offer”)
at an
offer price in cash (express as percentages of principal amount) set forth
below
plus accrued and unpaid interest, if any, to the Change of Control Payment
Date,
if purchased during the twelve-month period beginning on October 1 of the years
indicated below:
|
Year
|
Percentage
|
|
2007
|
109%
|
|
2008
|
102%
|
|
2009
|
101%
|
|
2010
and thereafter
|
100%
|
(b) Within
30
days following any Change of Control, the Company shall mail a notice to each
Holder describing the transaction or transactions that constitute the Change
of
Control and which shall be no earlier than 30 days and no later than 60 days
from the date such notice is mailed (the “Change
of Control Payment Date”),
pursuant to the procedures required by the Indenture and described in such
notice.
7. Within
360 days after the receipt of any Net Proceeds from an Asset Sale, the Company
may apply such Net Proceeds at its option: (i) to repay Senior Debt and, if
the
Senior Debt being repaid is revolving credit Indebtedness, to correspondingly
reduce commitments with respect thereto; or (ii) to purchase Replacement Assets
or make a capital expenditure in or that is used or useful in a Permitted
Business. Pending the final applications of any such Net Proceeds, the Company
may temporarily reduce revolving credit borrowings or otherwise invest such
Net
Proceeds in any manner that is not prohibited by the Indenture. Any Net Proceeds
from Asset Sales that are not applied or invested as provided in the preceding
paragraph will constitute “Excess Proceeds.” Within 10 days after the aggregate
amount of Excess Proceeds exceeds $10.0 million, the Company will make an offer
(an “Asset
Sale Offer”)
to all
Holders of Notes and all holders of other Indebtedness that is pari
passu
with the
Notes or any Note Guarantee containing provisions similar to those set forth
in
the Indenture with respect to offers to purchase with the proceeds of sales
of
assets to purchase the maximum principal amount of Notes and such other
pari
passu
Indebtedness that may be purchased out of the Excess Proceeds at an offer price
in cash equal to 100% of the principal amount thereof of the Notes and such
other pari
passu
Indebtedness plus accrued and unpaid interest to the date of purchase, and
will
be payable in cash. If any Excess Proceeds remain after consummation of an
Asset
Sale Offer, the Company may use such Excess Proceeds for any purpose not
otherwise prohibited by the Indenture. If the aggregate principal amount of
Notes and such other pari
passu
Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Notes and such other pari
passu
Indebtedness to be purchased on a pro
rata
basis
based on the principal amount of Notes and such other pari
passu
Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount
of
Excess Proceeds shall be reset at zero.
A-5
8. Selection
and Notice of Redemption.
If less
than all of the Notes are to be redeemed or purchased in an offer to purchase
at
any time, the Trustee shall select the Notes to be redeemed or purchased among
the Holders in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed, or, if the Notes
are
not so listed, on a pro
rata
basis,
by lot or in accordance with any other method the Trustee shall deem fair and
appropriate. 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. The notice shall identify the Notes to be redeemed and
shall
state: (i) the redemption date; (ii) the redemption price; (iii) if any Note
is
being redeemed in part, the portion of the principal amount of such Note to
be
redeemed and that, after the redemption date upon surrender of such Note, a
new
Note or Notes in principal amount equal to the unredeemed portion of the
original Note shall be issued in the name of the Holder thereof upon
cancellation of the original Note; (iv) the name and address of the Paying
Agent; (v) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price and become due on the date fixed for
redemption; (vi) 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; (vii) the paragraph of the Notes and/or Section of the
Indenture pursuant to which the Notes called for redemption are being redeemed;
and (viii) 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.
9. Denominations,
Transfer, Exchange.
The
Notes are in registered form without coupons in denominations of $1,000 and
integral multiples of $1,000. The transfer of Notes may be registered and Notes
may be exchanged as provided in the Indenture. The Registrar and the Trustee
may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected
for
redemption, except for the unredeemed portion of any Note being redeemed in
part. Also, the Company need not exchange or register the transfer of any Notes
for a period of 15 days before a selection of Notes to be redeemed or during
the
period between.a record date and the corresponding Interest Payment
Date.
A-6
10. Persons
Deemed Owners.
The
registered Holder of a Note will be treated as its owner for all
purposes.
11. Amendment,
Supplement and Waiver.
Subject
to certain exceptions, the Indenture, the Note Guarantees, or the Notes may
be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the then outstanding Notes voting as a single class,
and
any existing default or compliance with any provision of the Indenture, the
Note
Guarantees, or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes, if any, voting
as a
single class. Without the consent of the Holders of at least 75% in principal
amount of the Notes then outstanding voting as a single class (including,
without limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for, the Notes), an amendment or waiver may
not
amend or modify any, of the provisions of the Indenture or the related
definitions affecting the subordination or ranking of the Notes or any Note
Guarantee in any manner adverse to the holders of the Notes or any Note
Guarantee. Without the consent of any Holder of a Note, the Indenture, the
Note
Guarantees, or the Notes 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 or
sale
of all or substantially all of the assets of the Company, 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 legal rights under the Indenture of any
such Holder, to comply with the requirements of the SEC in order to effect
or
maintain the qualification of the Indenture under the Trust Indenture Act or
to
allow any Subsidiary to guarantee the Notes or to allow any Guarantor to execute
a supplemental indenture to the Indenture with respect to the
Notes.
12. Defaults
and Remedies.
In the
case of an Event of Default arising from certain events of bankruptcy or
insolvency, with respect to the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary, all outstanding Notes will become due and
payable immediately without further action or notice. If any other Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25%
in
principal amount of the Notes may declare all the Notes to be due and payable
immediately by notice in writing to the Company specifying the Event of Default.
Holders of the Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a majority
in principal amount of the then outstanding Notes may direct the Trustee in
its
exercise of any trust or power. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except a Default
or
Event of Default relating to the payment of principal, premium, if any, or
interest) if it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of
the
Notes waive any existing Default or Event of Default and its consequences under
the Indenture except a continuing Default or Event of Default in the payment
of
interest or premium, if any, on, or the principal of, the Notes.
A-7
In
the
case of any Event of Default occurring by reason of any willful action or
inaction taken or not taken by or on behalf of the Company with the intention
of
avoiding payment of the premium that the Company would have had to pay if the
Company then had elected to redeem the Notes pursuant to Section 3.07 of the
Indenture concerning optional redemption, an equivalent premium shall also
become and be immediately due and payable to the extent permitted by law upon
the acceleration of the Notes.
13. 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.
14. No
Recourse Against Others.
No
past, present or future director, officer, employee, incorporator, stockholder
or agent of the Company or any Guarantor, as such, shall have any liability
for
any obligations of the Company or any Guarantor under the Notes, any Note
Guarantees, the Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder of the Notes by accepting
a
Note waives and releases all such liability. The waiver and release are part
of
the consideration for issuance of the Notes. Such waiver may not be effective
to
waive liabilities under the federal securities laws.
15. Authentication.
This
Note shall not be valid until authenticated by the manual signature of the
Trustee or an authenticating agent.
16. 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.
17. The
Company shall furnish to any Holder upon written request, and without charge
a
copy of the Indenture. Requests may be made to:
If
to the
Company and/or any Guarantor:
Spectrum
Brands, Inc.
Six
Concourse Parkway, Suite 3300
Atlanta,
Georgia 30328
Facsimile:
[_________]
Attention:
General Counsel
A-8
with
a
copy to:
Skadden,
Arps, Slate, Meagher & Flom LLP
One
Beacon Street
Boston,
Massachusetts 02108-3194
Facsimile:
617-305-4815
Attention:
Margaret A. Brown, Esq.
A-9
ASSIGNMENT
FORM
To
assign
this Note, fill in the form below: (I) or (we) assign and transfer this Note
to
|
(Insert
assignee’s legal name)
|
|
(Insert
assignee’s soc. sec. or tax I.D. no.)
|
|
(Print
or type assignee’s name, address and zip code)
|
|
and
irrevocably appoint
________________________________________________
to
transfer this Note on the books of the Company. The agent may substitute
another to act for him.
|
|
Date:__________
|
|
|
Your
Signature: ______________________
(Sign
exactly as your name appears on the face of this Note)
|
|
|
Signature
Guarantee.*
|
|
*
|
Participant
is recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the
Trustee).
|
A-10
OPTION
OF HOLDER TO ELECT PURCHASE
If
you
want to elect to have this Note purchased by the Company pursuant to Section
4.10 or 4.14 of the Indenture, check the box below:
|
G
Section
4.10
|
G
Section
4.14
|
If
you
want to elect to have only part of the Note purchased by the Company pursuant
to
Section 4.10 or Section 4.14 of the Indenture, state the amount you elect to
have purchased: $________
|
Date:
__________
|
|
|
Your
Signature:_______________________
(Sign
exactly as your name appears on the face of this Note)
|
|
|
Signature
Guarantee.*
|
Tax
Identification No:
__________________
|
|
*
|
Participant
is recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the
Trustee).
|
A-11
SCHEDULE
OF EXCHANGES OF GLOBAL NOTE
The
following exchanges of a part of this Global Note for an interest in another
Global Note or of another Global Note for an interest in this Global Note,
have
been made:
|
Date
of Exchange
|
Amount
of Decrease in Principal
of
this Global Note
|
Amount
of Increase in Principal
of
this Global Note
|
Principal
Amount of this Global Note Following such decrease (or
increase)
|
Signature
of Authorized Officer of Trustee or
Note
Custodian
|
A-12
EXHIBIT
B
FORM
OF NOTATION OF GUARANTEE
For
value
received, each Guarantor (which term includes any successor Person under the
Indenture) has, jointly and severally, unconditionally guaranteed, to the extent
set forth in the Indenture and subject to the provisions in the Indenture dated
as of [ ], 2007 (the “Indenture”)
among
Spectrum Brands, Inc. (the “Company”),
the
Guarantors named therein and Wells Fargo Bank National Association, as
trustee (the “Trustee”),
(a)
the due and punctual payment of the principal of, premium, if any, and interest
on the Notes (as defined in the Indenture), whether at maturity, by
acceleration, redemption or otherwise, the due and punctual payment of interest
on overdue principal and premium, and, to the extent permitted by law, interest,
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 of the Indenture
and
(b) in case of any extension of time of payment or renewal of any Notes or
any
of 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 or otherwise. The obligations of the
Guarantors to the Holders of Notes and to the Trustee pursuant to the Note
Guarantee and, the Indenture are expressly set forth in Article XI of the
Indenture and reference is hereby made to the Indenture for the precise terms
of
the Note Guarantee. Each Holder of a Note, by accepting the same, (a) agrees
to
and shall be bound by such provisions, (b) authorizes and directs the Trustee,
on behalf of such Holder, to take such action as may be necessary or appropriate
to effectuate the subordination as provided in the Indenture and (c) appoints
the Trustee attorney-in fact of such Holder for such purpose; provided,
however,
that
the Indebtedness evidenced by this Note Guarantee shall cease to be so
subordinated and subject in right of payment upon any defeasance of this Note
in
accordance with the provisions of the Indenture.
D-1
IN
WITNESS HEREOF, the Guarantors have caused this Notation of Guarantee to be
executed by a duly authorized officer.
[Name
of
Guarantor]
By:
________________________________
Name:
Title:
Name:
Title:
D-2
EXHIBIT
C
FORM
OF SUPPLEMENTAL INDENTURE
TO
BE DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental
Indenture (this “Supplemental
Indenture”),
dated
as of ____________, among _______________ (the “Guaranteeing
Subsidiary”),
Spectrum Brands, Inc., a Wisconsin Corporation (the “Company”),
the
Guarantors (as defined in the Indenture referred to herein) and [Wells Fargo
Bank, N.A.], as Trustee (the “Trustee”).
W
I T N E
S S E T H
WHEREAS,
the Company and the Guarantors have heretofore executed and delivered to the
Trustee an indenture (the “Indenture”),
dated
as of September 30, 2003 providing for the issuance of an unlimited aggregate
principal amount of 8½% Senior Subordinated Notes due 2013 (the “Notes”);
WHEREAS,
the Indenture provides that under certain circumstances the Guaranteeing
Subsidiary shall execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee
all of the Company’s obligations under the Notes and the Indenture on the terms
and conditions set forth herein (the “Note
Guarantee”);
and
WHEREAS,
pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute
and deliver this Supplemental Indenture.
NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing
Subsidiary and the Trustee mutually covenant and agree for the equal and ratable
benefit of the Holders of the Notes as follows:
1. Capitalized
Terms.
Capitalized terms used herein without definition shall have the meanings
assigned to them in the Indenture.
2. Agreement
to Guarantee.
The
Guaranteeing Subsidiary hereby agrees as follows:
E-1
(a) Along
with all other Guarantors, to jointly and severally Guarantee to each Holder
of
a Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of
the
Indenture, the Notes or the obligations of the Company hereunder or thereunder,
that:
(i) the
principal of and interest on the Notes shall be promptly paid in full when
due,
whether at maturity, by acceleration, redemption or otherwise, and interest
on
the overdue principal of and interest on the Notes, if any, if lawful (subject
in all cases to any applicable grace period provided in the Indenture), and
all
other obligations of the Company to the Holders or the Trustee hereunder or
thereunder shall be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and
(i) 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 or otherwise. Failing payment when due of any amount
so guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same
immediately.
(b) The
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or the Indenture, the absence of
any
action to enforce the same, any waiver or consent by any Holder of the Notes
with respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
that might otherwise constitute a legal or equitable discharge or defense of
a
guarantor.
(c) Subject
to Section 6.06 of the Indenture and to the extent permitted by applicable
law,
each Guarantor hereby waives: diligence presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest, notice
and
all demands whatsoever.
(d) Subject
to Section 6.06 of the Indenture and to the extent permitted by applicable
law,
this Note Guarantee shall not be discharged except by complete performance
of
the obligations contained in the Notes and the Indenture.
(e) If
any
Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors, or any custodian, trustee, liquidator or other similar
official acting in relation to either the Company or the Guarantors, any amount
paid by either to the Trustee or such Holder, this Note Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and
effect.
E-2
(f) The
Guaranteeing Subsidiary shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.
(g) As
between the Guarantors, on the one hand, and the Holders and the Trustee, on
the
other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article VI of the Indenture for the purposes of
this
Note Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (y) in the event of any declaration of acceleration of such obligations
as
provided in Article VI of the Indenture, such obligations (whether or not due
and payable) shall forthwith become due and payable by the Guarantors for the
purpose of this Note Guarantee.
(h) The
Guarantors shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights
of
the Holders under the Note Guarantee.
(j) Pursuant
to Section 11.03 of the Indenture, after giving effect to any maximum amount
and
any other contingent and fixed liabilities of the Guarantor that are relevant
under any applicable Bankruptcy Law, the Uniform Fraudulent Conveyance Act,
the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable, and after giving effect to any collections from, rights
to
receive contribution from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under Article
XI
of the Indenture, the Trustee, the Holders and the Guarantor irrevocably agree
that the obligation of such Guarantor shall result in the obligations of such
Guarantor under its Note Guarantee not constituting a fraudulent transfer or
conveyance.
3. Subordination.
The
Obligations of the Guaranteeing Subsidiary under its Note Guarantee pursuant
to
this Supplemental Indenture shall be junior and subordinated to the Senior
Debt
of the Guaranteeing Subsidiary on the same basis as the Notes are junior and
subordinated to the Senior Debt of the Company. For the purposes of the
foregoing sentence, the Trustee and the Holders shall have the right to receive
and/or retain payments by the Guaranteeing Subsidiary only at such time as
they
may receive and/or retain payments in respect of the Notes pursuant to the
Indenture, including Article X thereof.
4. Execution
and Delivery.
Each
Guaranteeing Subsidiary agrees that the Note Guarantees shall remain in full
force and effect notwithstanding any failure to endorse on each Note a notation
of such Note Guarantee.
5. Guaranteeing
Subsidiary May Consolidate, Etc., on Certain Terms.
Except
as otherwise provided in Section 11.05 of the Indenture; a Guarantor may not
sell or otherwise dispose of all or substantially all of its assets, or
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person unless:
E-3
(a) immediately
after giving effect to such transaction, no Default or Event of Default exists;
and
(b) either:
(i) the
Person acquiring the property in any such sale or disposition or the Person
formed by or surviving any such consolidation or merger is a corporation,
organized or existing under (i) the laws of the United States, any state thereof
or the District of Columbia or (ii) the laws of the same jurisdiction as that
Guarantor and, in each case, assumes all the obligations of that Guarantor
under
the Indenture, its Note Guarantee and the Registration Rights Agreement pursuant
to a supplemental indenture satisfactory to the Trustee; or
(ii) in
the
case of a Subsidiary Guarantor, such sale or other disposition (A) complies
with
Section 4.10 of the Indenture, including the application of the Net Proceeds
therefrom and (B) is to a Person that is not a Restricted Subsidiary of the
Company.
In
case
of any such consolidation, merger, sale or conveyance and upon the assumption
by
the successor Person, by supplemental indenture, executed and delivered to
the
Trustee and satisfactory in form to the Trustee, of the Note Guarantee endorsed
upon the Notes and the due and punctual performance of all of the obligations
and conditions of the Indenture to be performed by a Guarantor, such successor
Person shall succeed to and be substituted for a Guarantor with the same effect
as if it had been named herein as a Guarantor. Such successor Person thereupon
may cause to be signed any or all of the Note 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 Note Guarantees so issued
shall in all respects have the same legal rank and benefit under the Indenture
as the Note Guarantees theretofore and thereafter issued in accordance with
the
terms of the Indenture as though all of such Note Guarantees had been issued
at
the date of the execution hereof.
Except
as
set forth in Articles IV and V of the Indenture, and notwithstanding clauses
(a)
and (b) above, nothing contained in the Indenture or in any of the Notes shall
prevent any consolidation or merger of a Guarantor with or into the Company
or
another Guarantor, or shall prevent any sale or conveyance of the property
of a
Guarantor as an entirety or substantially as an entirety to the Company or
another Guarantor.
E-4
6. Releases.
(a) Any
Guarantor shall be released and relieved of any obligations under its Note
Guarantee, (i) in connection with any sale or other disposition of all or
substantially all of the assets of that Guarantor (including by way of merger
or
consolidation) to a Person that is not (either before or after giving effect
to
such transaction) a Restricted Subsidiary of the Company, if the sale or other
disposition of all or substantially all of the assets of that Guarantor complies
with Section 4.10 of the Indenture, including the application of the Net
Proceeds therefrom; (ii) in connection with any sale of all of the Capital
Stock
of a Guarantor to a Person that is not (either before or after giving effect
to
such transaction) a Restricted Subsidiary of the Company, if the sale of all
such Capital Stock of that Guarantor complies with Section 4.10 of the
Indenture, including the application of the Net Proceeds therefrom; (iii) if
the
Company designates any Restricted Subsidiary that is a Guarantor as an
Unrestricted Subsidiary in accordance with the terms hereof; or (iv) in
connection with any sale of Capital Stock of a Guarantor to a Person that
results in the Guarantor no longer being a Subsidiary of the Company, if the
sale of such Capital Stock of that Guarantor complies with Section 4.10,
including the application of the Net Proceeds therefrom. Upon delivery by the
Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel to
the effect that such sale or other disposition was made by the Company in
accordance with the provisions of the Indenture, including without limitation
Section 4.10 hereof, the Trustee shall execute any documents reasonably required
in order to evidence the release of any Guarantor from its obligations under
its
Note Guarantee.
(b) Any
Guarantor not released from its obligations under its Note Guarantee shall
remain liable for the full amount of principal of and interest on the Notes
and
for the other obligations of any Guarantor under the Indenture as provided
in
Article X of the Indenture.
7. No
Recourse Against Others.
No
past, present or future director, officer, employee, incorporator, stockholder
or agent of the Guaranteeing Subsidiary, as such, shall have any liability
for
any obligations of the Company or any Guaranteeing Subsidiary under the Notes,
any Note Guarantees, the Indenture or this Supplemental Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases
all
such liability. The waiver and release are part of the consideration for
issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws.
8. NEW
YORK LAW TO GOVERN.
THE
INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE
THIS
SUPPLEMENTAL INDENTURE.
9. Counterparts.
The
parties may sign any number of copies of this Supplemental Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
E-5
10. Effect
of Headings.
The
Section headings herein are for convenience only and shall not affect the
construction hereof.
11. Trustee.
The
Trustee shall not be responsible in any manner whatsoever for or in respect
of
the validity or sufficiency of this Supplemental Indenture or for or in respect
of the recitals contained herein, all of which recitals are made solely by
the
Guaranteeing Subsidiary and the Company.
E-6
IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to
be duly executed and attested, all as of the date first above
written.
Dated:
_____________________
[Guaranteeing
Subsidiary]
By:
_____________________________
Name:
Title:
Name:
Title:
[Name
of
Guarantor]
By:
_____________________________
Name:
Title:
Name:
Title:
SPECTRUM
BRANDS, INC.
By:
_____________________________
Name:
Title:
Name:
Title:
[WELLS
FARGO BANK, N.A.], AS TRUSTEE
By:
_____________________________
Name:
Title:
Name:
Title:
E-7
SCHEDULE
I
GUARANTORS
|
Tetra
Holding (US), Inc.
|
|
ROV
Holding, Inc.
|
|
ROVCAL,
Inc.
|
|
United Industries Corporation
|
|
Schultz
Company
|
|
Spectrum
Neptune US Holdco Corporation,
|
|
United
Pet Group, Inc.
|
|
DB
Online, LLC
|
|
Southern
California Foam, Inc.
|
|
Aquaria,
Inc.
|
|
Aquarium
Systems, Inc.
|
|
Perfecto
Manufacturing, Inc.
|
Sch-I
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_____________________________
FORM
T-1
STATEMENT
OF ELIGIBILITY
UNDER
THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION
DESIGNATED TO ACT AS TRUSTEE
_____________________________
o
CHECK
IF AN
APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)
(2)
WELLS
FARGO BANK, NATIONAL ASSOCIATION
(Exact
name of trustee as specified in its charter)
|
A
National Banking Association
|
94-1347393
|
|
|
(Jurisdiction
of incorporation or organization
if not a U.S. national bank)
|
(I.R.S.
Employer Identification
No.)
|
|
|
101
North Phillips Avenue
Sioux
Falls, South Dakota
|
57104
|
|
|
(Address
of principal executive offices)
|
(Zip
code)
|
Wells
Fargo & Company
Law
Department, Trust Section
MAC
N9305-175
Sixth
Street and Marquette Avenue, 17th
Floor
Minneapolis,
Minnesota 55479
(612)
667-4608
(Name,
address and telephone number of agent for service)
_____________________________
SPECTRUM
BRANDS, INC.1
(Exact
name of obligor as specified in its charter)
|
Wisconsin
|
22-2423556
|
|
|
(State
or other jurisdiction of incorporation or organization)
|
(I.R.S.
Employer Identification No.)
|
|
|
Six
Concourse Parkway
Suite
3300
Atlanta,
Georgia
|
30328
|
|
|
(Address
of principal executive offices)
|
(Zip
code)
|
_____________________________
Variable
Rate Toggle Interest Pay-In-Kind Senior Subordinated Notes due 2013
(Title
of
the indenture securities)
|
1
|
See
Table 1 - List of additional obligors
|
Table
1
|
Guarantor
|
Jurisdiction
of Incorporation
|
Federal
EIN
|
Address
|
|
Tetra
Holding (US), Inc.
|
Delaware
|
42-1560545
|
3001
Commerce Street
Blacksburg,
Virginia 24060
|
|
ROV
Holding, Inc.
|
Delaware
|
22-2423555
|
c/o
Delaware Corporate Management, Inc.
1105
North Market Street
Suite
1300
Wilmington,
Delaware 19899
|
|
ROVCAL,
Inc
|
California
|
52-2068284
|
3210
South East Avenue
Fresno,
California 93725
|
|
United
Industries Corporation
|
Delaware
|
43-1025604
|
13260
Corporate Exchange Drive
St
Louis, Missouri 63044
|
|
Schultz
Company.
|
Missouri
|
43-0625762
|
13260
Corporate Exchange Drive
St
Louis, Missouri 63044
|
|
Spectrum
Neptune US Holdco Corporation
|
Delaware
|
20-0971051
|
c/o
Corporation Trust Center
1209
Orange Street
Wilmington,
Delaware 19801
|
|
United
Pet Group, Inc.
|
Delaware
|
11-2392851
|
463
Ohio Pike
Suite
303
Cincinnati,
Ohio 45255
|
|
DB
Online, LLC
|
Hawaii
|
20-0895221
|
500
Ala Moana Boulevard
Suite
7-527
Honolulu,
Hawaii 96813
|
|
Southern
California Foam, Inc.
|
California
|
95-4236597
|
18-A
Journey
Suite
#130
Aliso
Viejo, California 92656
|
|
Aquaria,
Inc.
|
California
|
95-2556867
|
6100
Condor Drive
Moorpark,
California 93021
|
|
Aquarium
Systems, Inc.
|
Delaware
|
34-1820457
|
8141
Tyler Boulevard
Mentor,
Ohio 44060
|
|
Perfecto
Manufacturing, Inc.
|
Delaware
|
59-3380419
|
20975
Creek Road
Noblesville,
Indiana 46060
|
|
Item
1.
|
General
Information.
Furnish the following information as to the
trustee:
|
|
(a)
|
Name
and address of each examining or supervising authority to which it
is
subject.
|
|
Comptroller
of the Currency
|
|
Treasury
Department
|
|
Washington,
D.C.
|
|
Federal
Deposit Insurance Corporation
|
|
Washington,
D.C.
|
|
Federal
Reserve Bank of San Francisco
|
|
San
Francisco, California 94120
|
|
(b)
|
Whether
it is authorized to exercise corporate trust
powers.
|
|
The
trustee is authorized to exercise corporate trust
powers.
|
|
Item
2.
|
Affiliations
with Obligor.
If
the obligor is an affiliate of the trustee, describe each such
affiliation.
|
None
with
respect to the trustee.
No
responses are included for Items 3-14 of this Form T-1 because the obligor
is
not in default as provided under Item 13.
|
Item
15.
|
Foreign
Trustee.
|
Not
applicable.
|
|
Item
16.
|
List
of Exhibits.
|
List
below all exhibits filed as a part of this Statement of Eligibility.
|
Exhibit
1. A
copy of
the Articles of Association of the trustee now in effect.*
Exhibit
2. A
copy of
the Comptroller of the Currency Certificate of Corporate Existence and Fiduciary
Powers for Wells Fargo Bank, National Association, dated February 4,
2004.**
|
Exhibit
3.
|
See
Exhibit 2
|
|
Exhibit
4.
|
Copy
of By-laws of the trustee as now in
effect.***
|
|
Exhibit
5.
|
Not
applicable.
|
|
Exhibit
6.
|
The
consent of the trustee required by Section 321(b) of the
Act.
|
| Exhibit 7. |
A
copy of the latest report of condition of the trustee published pursuant
to law or the requirements of its supervising or examining
authority.
|
|
Exhibit
8.
|
Not
applicable.
|
|
Exhibit
9.
|
Not
applicable.
|
* Incorporated
by reference to the exhibit of the same number to the trustee’s Form T-1 filed
as exhibit 25 to the Form S-4 dated December 30, 2005 of Hornbeck Offshore
Services LLC file number 333-130784-06.
** Incorporated
by reference to the exhibit of the same number to the trustee’s Form T-1 filed
as exhibit 25 to the Form T-3 dated March 3, 2004 of Trans-Lux Corporation
file
number 022-28721.
***
Incorporated by reference to the exhibit of the same number to the trustee’s
Form T-1 filed as exhibit 25 to the Form S-4 dated May 26, 2005 of Penn National
Gaming Inc. file number 333-125274.
SIGNATURE
Pursuant
to the requirements of the Trust Indenture Act of 1939, as amended, the trustee,
Wells Fargo Bank, National Association, a national banking association organized
and existing under the laws of the United States of America, has duly caused
this statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Minneapolis and State of Minnesota
on the 9th
day of
March 2007.
| WELLS FARGO BANK, NATIONAL ASSOCIATION | ||
| |
|
|
| By: | /s/ Jane Y. Schweiger | |
|
Jane
Y. Schweiger
Vice
President
|
||
EXHIBIT
6
March
9,
2007
Securities
and Exchange Commission
Washington,
D.C. 20549
Gentlemen:
In
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
the undersigned hereby consents that reports of examination of the undersigned
made by Federal, State, Territorial, or District authorities authorized to
make
such examination may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
| Very truly yours, | ||
| WELLS FARGO BANK, NATIONAL ASSOCIATION | ||
| |
|
|
| By: | /s/ Jane Y. Schweiger | |
|
Jane
Y. Schweiger
Vice
President
|
||
Exhibit
7
Consolidated
Report of Condition of
Wells
Fargo Bank National Association
of
101
North Phillips Avenue, Sioux Falls, SD 57104
And
Foreign and Domestic Subsidiaries,
at
the
close of business December 31, 2006, filed in accordance with 12 U.S.C. §161 for
National Banks.
|
Dollar
Amounts
In Millions |
|||||||
|
ASSETS
|
|||||||
|
Cash
and balances due from depository institutions:
|
|||||||
|
Noninterest-bearing
balances and currency and coin
|
$
|
15,071
|
|||||
|
Interest-bearing
balances
|
1,332
|
||||||
|
Securities:
|
|||||||
|
Held-to-maturity
securities
|
0
|
||||||
|
Available-for-sale
securities
|
37,720
|
||||||
|
Federal
funds sold and securities purchased under agreements to
resell:
|
|||||||
|
Federal
funds sold in domestic offices
|
4,141
|
||||||
|
Securities
purchased under agreements to resell
|
1,130
|
||||||
|
Loans
and lease financing receivables:
|
|||||||
|
Loans
and leases held for sale
|
33,751
|
||||||
|
Loans
and leases, net of unearned income
|
252,936
|
||||||
|
LESS:
Allowance for loan and lease losses
|
2,088
|
||||||
|
Loans
and leases, net of unearned income and allowance
|
250,848
|
||||||
|
Trading
Assets
|
3,060
|
||||||
|
Premises
and fixed assets (including capitalized leases)
|
4,045
|
||||||
|
Other
real estate owned
|
557
|
||||||
|
Investments
in unconsolidated subsidiaries and associated companies
|
419
|
||||||
|
Intangible
assets
|
|||||||
|
Goodwill
|
8,995
|
||||||
|
Other
intangible assets
|
18,458
|
||||||
|
Other
assets
|
19,144
|
||||||
|
Total
assets
|
$
|
398,671
|
|||||
|
LIABILITIES
|
|||||||
|
Deposits:
|
|||||||
|
In
domestic offices
|
$
|
272,350
|
|||||
|
Noninterest-bearing
|
76,347
|
||||||
|
Interest-bearing
|
196,003
|
||||||
|
In
foreign offices, Edge and Agreement subsidiaries, and IBFs
|
39,196
|
||||||
|
Noninterest-bearing
|
12
|
||||||
|
Interest-bearing
|
39,184
|
||||||
|
Federal
funds purchased and securities sold under agreements to
repurchase:
|
|||||||
|
Federal
funds purchased in domestic offices
|
4,271
|
||||||
|
Securities
sold under agreements to repurchase
|
5,631
|
||||||
|
|
Dollar
Amounts In Millions
|
||||||
|
Trading
liabilities
|
2,145
|
||||||
|
Other
borrowed money
|
|||||||
|
(includes
mortgage indebtedness and obligations under capitalized
leases)
|
7,119
|
||||||
|
Subordinated
notes and debentures
|
10,164
|
||||||
|
Other
liabilities
|
17,464
|
||||||
|
Total
liabilities
|
$
|
358,340
|
|||||
|
Minority
interest in consolidated subsidiaries
|
61
|
||||||
|
EQUITY
CAPITAL
|
|||||||
|
Perpetual
preferred stock and related surplus 0
|
|||||||
|
Common
stock
|
520
|
||||||
|
Surplus
(exclude all surplus related to preferred stock)
|
24,751
|
||||||
|
Retained
earnings
|
14,549
|
||||||
|
Accumulated
other comprehensive income
|
450
|
||||||
|
Other
equity capital components
|
0
|
||||||
|
Total
equity capital
|
40,270
|
||||||
|
Total
liabilities, minority interest, and equity capital
|
$
|
398,671
|
I,
Karen
B. Nelson, Vice President of the above-named bank do hereby declare that this
Report of Condition has been prepared in
conformance with the instructions issued by the appropriate Federal regulatory
authority and is true to the best of my knowledge and
belief.
Karen
B.
Nelson
Vice
President
We,
the
undersigned directors, attest to the correctness of this Report of Condition
and
declare that it has been examined by us and
to
the best of our knowledge and belief has been prepared in conformance with
the
instructions issued by the appropriate Federal
regulatory authority and is true and correct.
Avid
Modijtabai
John
Stumpf Directors
Carrie
Tolstedt