Attached files
file | filename |
---|---|
8-K - FORM 8-K - Crestwood Midstream Partners LP | h81153e8vk.htm |
EX-4.4 - EX-4.4 - Crestwood Midstream Partners LP | h81153exv4w4.htm |
EX-4.3 - EX-4.3 - Crestwood Midstream Partners LP | h81153exv4w3.htm |
EX-3.1 - EX-3.1 - Crestwood Midstream Partners LP | h81153exv3w1.htm |
EX-99.1 - EX-99.1 - Crestwood Midstream Partners LP | h81153exv99w1.htm |
EX-10.1 - EX-10.1 - Crestwood Midstream Partners LP | h81153exv10w1.htm |
EX-99.2 - EX-99.2 - Crestwood Midstream Partners LP | h81153exv99w2.htm |
EX-23.1 - EX-23.1 - Crestwood Midstream Partners LP | h81153exv23w1.htm |
Exhibit 4.1
EXECUTION VERSION
CRESTWOOD MIDSTREAM PARTNERS LP
CRESTWOOD MIDSTREAM FINANCE CORPORATION
7.75% SENIOR NOTES DUE 2019
INDENTURE
Dated as of April 1, 2011
The Bank of New York Mellon Trust Company, N.A.
Trustee
TABLE OF CONTENTS
Page | ||||||
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE |
||||||
Section 1.01 | Definitions
|
1 | ||||
Section 1.02 | Other Definitions
|
28 | ||||
Section 1.03 | Incorporation by Reference of Trust Indenture Act
|
28 | ||||
Section 1.04 | Rules of Construction
|
29 | ||||
ARTICLE 2 THE NOTES |
||||||
Section 2.01 | Form and Dating
|
29 | ||||
Section 2.02 | Execution and Authentication
|
30 | ||||
Section 2.03 | Registrar and Paying Agent
|
31 | ||||
Section 2.04 | Paying Agent to Hold Money in Trust
|
31 | ||||
Section 2.05 | Holder Lists
|
31 | ||||
Section 2.06 | Transfer and Exchange
|
31 | ||||
Section 2.07 | Replacement Notes
|
43 | ||||
Section 2.08 | Outstanding Notes
|
44 | ||||
Section 2.09 | Treasury Notes
|
44 | ||||
Section 2.10 | Temporary Notes
|
44 | ||||
Section 2.11 | Cancellation
|
44 | ||||
Section 2.12 | Defaulted Interest
|
45 | ||||
Section 2.13 | CUSIP Numbers
|
45 | ||||
ARTICLE 3 REDEMPTION AND PREPAYMENT |
||||||
Section 3.01 | Notices to Trustee
|
45 | ||||
Section 3.02 | Selection of Notes to Be Redeemed
|
45 | ||||
Section 3.03 | Notice of Redemption
|
46 | ||||
Section 3.04 | Effect of Notice of Redemption
|
47 | ||||
Section 3.05 | Deposit of Redemption Price
|
47 | ||||
Section 3.06 | Notes Redeemed in Part
|
47 | ||||
Section 3.07 | Optional Redemption
|
48 | ||||
Section 3.08 | Mandatory Redemption
|
49 | ||||
ARTICLE 4 COVENANTS |
||||||
Section 4.01 | Payment of Notes
|
49 | ||||
Section 4.02 | Maintenance of Office or Agency
|
49 | ||||
Section 4.03 | Reports
|
50 | ||||
Section 4.04 | Compliance Certificate
|
51 | ||||
Section 4.05 | Intentionally Omitted
|
51 | ||||
Section 4.06 | Intentionally Omitted
|
51 | ||||
Section 4.07 | Restricted Payments
|
51 | ||||
Section 4.08 | Dividend and Other Payment Restrictions Affecting Subsidiaries
|
56 | ||||
Section 4.09 | Incurrence of Indebtedness and Issuance of Preferred Equity
|
58 | ||||
Section 4.10 | Asset Sales
|
62 |
Page | ||||||
Section 4.11 | Transactions with Affiliates
|
65 | ||||
Section 4.12 | Liens
|
67 | ||||
Section 4.13 | Business Activities
|
67 | ||||
Section 4.14 | Offer to Repurchase Upon Change of Control
|
67 | ||||
Section 4.15 | Additional Note Guarantees
|
69 | ||||
Section 4.16 | Designation of Restricted and Unrestricted Subsidiaries
|
70 | ||||
Section 4.17 | Changes in Covenants upon Notes being Rated Investment Grade
|
70 | ||||
Section 4.18 | Restrictions on Activities of the Co-Issuer
|
71 | ||||
ARTICLE 5 SUCCESSORS |
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Section 5.01 | Consolidation, Amalgamation, Merger, or Sale of Assets
|
71 | ||||
Section 5.02 | Successor Substituted
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72 | ||||
ARTICLE 6 DEFAULTS AND REMEDIES |
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Section 6.01 | Events of Default
|
72 | ||||
Section 6.02 | Acceleration
|
74 | ||||
Section 6.03 | Other Remedies
|
74 | ||||
Section 6.04 | Waiver of Past Defaults
|
75 | ||||
Section 6.05 | Control by Majority
|
75 | ||||
Section 6.06 | Limitation on Suits
|
75 | ||||
Section 6.07 | Rights of Holders to Receive Payment
|
75 | ||||
Section 6.08 | Collection Suit by Trustee
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76 | ||||
Section 6.09 | Trustee May File Proofs of Claim
|
76 | ||||
Section 6.10 | Priorities
|
76 | ||||
Section 6.11 | Undertaking for Costs
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77 | ||||
ARTICLE 7 TRUSTEE |
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Section 7.01 | Duties of Trustee
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77 | ||||
Section 7.02 | Rights of Trustee
|
78 | ||||
Section 7.03 | Individual Rights of Trustee
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79 | ||||
Section 7.04 | Trustees Disclaimer
|
79 | ||||
Section 7.05 | Notice of Defaults
|
79 | ||||
Section 7.06 | Reports by Trustee to Holders
|
79 | ||||
Section 7.07 | Compensation and Indemnity
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80 | ||||
Section 7.08 | Replacement of Trustee
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81 | ||||
Section 7.09 | Successor Trustee by Merger, etc.
|
81 | ||||
Section 7.10 | Eligibility; Disqualification
|
82 | ||||
Section 7.11 | Preferential Collection of Claims Against the Issuers
|
82 | ||||
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
||||||
Section 8.01 | Option to Effect Legal Defeasance or Covenant Defeasance
|
82 | ||||
Section 8.02 | Legal Defeasance and Discharge
|
82 | ||||
Section 8.03 | Covenant Defeasance
|
83 | ||||
Section 8.04 | Conditions to Legal or Covenant Defeasance
|
83 | ||||
Section 8.05 | Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions
|
84 | ||||
Section 8.06 | Repayment to Issuers
|
85 |
ii
Page | ||||||
Section 8.07 | Reinstatement
|
85 | ||||
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER |
||||||
Section 9.01 | Without Consent of Holders
|
85 | ||||
Section 9.02 | With Consent of Holders
|
86 | ||||
Section 9.03 | Compliance with Trust Indenture Act
|
88 | ||||
Section 9.04 | Revocation and Effect of Consents
|
88 | ||||
Section 9.05 | Notation on or Exchange of Notes
|
88 | ||||
Section 9.06 | Trustee to Sign Amendments, etc.
|
88 | ||||
ARTICLE 10 NOTE GUARANTEES |
||||||
Section 10.01 | Guarantee
|
88 | ||||
Section 10.02 | Limitation on Guarantor Liability
|
89 | ||||
Section 10.03 | Intentionally Omitted
|
90 | ||||
Section 10.04 | Guarantors May Consolidate, etc., on Certain Terms
|
90 | ||||
Section 10.05 | Releases
|
90 | ||||
ARTICLE 11 SATISFACTION AND DISCHARGE |
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Section 11.01 | Satisfaction and Discharge
|
91 | ||||
Section 11.02 | Application of Trust Money
|
92 | ||||
ARTICLE 12 MISCELLANEOUS |
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Section 12.01 | Trust Indenture Act Controls
|
92 | ||||
Section 12.02 | Notices
|
92 | ||||
Section 12.03 | Communication by Holders with Other Holders
|
93 | ||||
Section 12.04 | Certificate and Opinion as to Conditions Precedent
|
94 | ||||
Section 12.05 | Statements Required in Certificate or Opinion
|
94 | ||||
Section 12.06 | Rules by Trustee and Agents
|
94 | ||||
Section 12.07 | No Personal Liability of Directors, Officers, Employees, Stockholders and Members
|
94 | ||||
Section 12.08 | Governing Law
|
95 | ||||
Section 12.09 | Successors
|
95 | ||||
Section 12.10 | Severability
|
95 | ||||
Section 12.11 | Counterpart Originals
|
95 | ||||
Section 12.12 | Table of Contents, Headings, etc.
|
95 | ||||
EXHIBITS |
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Exhibit A | FORM OF NOTE |
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Exhibit B | FORM OF CERTIFICATE OF TRANSFER |
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Exhibit C | FORM OF CERTIFICATE OF EXCHANGE |
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Exhibit D | FORM OF SUPPLEMENTAL INDENTURE |
iii
INDENTURE dated as of April 1, 2011 among Crestwood Midstream Partners LP, a Delaware
limited partnership (the Company), Crestwood Midstream Finance Corporation, a Delaware
corporation (the Co-Issuer and, together, with the Company, the Issuers), the Guarantors (as
defined herein) and The Bank of New York Mellon Trust Company, N.A., a national banking
association, as trustee.
The Issuers, the Guarantors and the Trustee agree as follows for the benefit of each other and
for the equal and ratable benefit of the Holders (as defined herein) of (a) the $200,000,000
aggregate principal amount of the Issuers 7.75% Senior Notes due 2019 (the Initial Notes), (b)
any Additional Notes (as defined herein) that may be issued after the date hereof and (c) if and
when issued pursuant to the Registration Rights Agreement (as defined herein), the Companys
Exchange Notes (as defined herein) issued in the Exchange Offer (as defined herein) in exchange for
any outstanding Initial Notes or Additional Notes (all such securities in clauses (a), (b) and (c)
being referred to collectively as the Notes):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
144A Global Note means a Global Note substantially in the form of Exhibit A hereto bearing
the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and
registered in the name of, the Depositary or its nominee that will be issued in a denomination
equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.
Acquired Debt means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other Person is merged
with or into or became a Restricted 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 Restricted Subsidiary of, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified
Person.
Additional Assets means:
(1) any properties or assets to be used by the Company or a Restricted Subsidiary in a
Permitted Business; or
(2) Capital Stock constituting a minority interest in any Person that at such time is a
Restricted Subsidiary;
provided, however, that, in the case of clause (2), such Restricted Subsidiary is primarily engaged
in a Permitted Business.
Additional Interest means, at any time, all additional interest then owing pursuant to the
Registration Rights Agreement.
1
Additional Notes means additional Notes (other than the Initial Notes) issued under this
Indenture in accordance with Sections 2.02 and 4.09 hereof, as part of the same series as the
Initial Notes whether or not they bear the same CUSIP number.
Affiliate of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For
purposes of this definition, control, as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the management or policies
of such Person, whether through the ownership of voting securities, by agreement or otherwise. For
purposes of this definition, the terms controlling, controlled by and under common control
with have correlative meanings.
Agent means any Registrar, co-registrar, Paying Agent or additional paying agent.
Applicable Premium means, with respect to any Note on any redemption date, the greater of:
(1) 1.0% of the principal amount of the Note; and
(2) the excess of: (a) the present value at such redemption date of (i) the redemption
price of the Note at April 1, 2015 (such redemption price being set forth in the table
appearing in Section 3.07(b) hereof), plus (ii) all required interest payments due on the
Note through April 1, 2015 (excluding accrued but unpaid interest to the redemption date),
computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50
basis points; over (b) the principal amount of the Note.
Applicable Procedures means, with respect to any transfer or exchange of or for beneficial
interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream
that apply to such transfer or exchange.
Asset Acquisition means:
(1) an Investment by the Company or any Restricted Subsidiary of the Company in any
other Person pursuant to which such Person shall become a Restricted Subsidiary of the
Company or any Restricted Subsidiary of the Company, or shall be merged with or into or
consolidated with the Company or any Restricted Subsidiary of the Company; or
(2) the acquisition by the Company or any Restricted Subsidiary of the Company of the
assets of any Person (other than a Restricted Subsidiary of the Company) which constitute
all or substantially all of the assets of such Person or comprise any division or line of
business of such Person or any other properties or assets of such Person other than in the
ordinary course of business.
Asset Sale means:
(1) the sale, lease, conveyance or other disposition of any assets or rights of the
Company and its Restricted Subsidiaries; provided that the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company and its Restricted
Subsidiaries taken as a whole will be governed by Section 4.14 hereof and/or Section 5.01
hereof and not by Section 4.10 hereof; and
(2) the issuance or sale of Equity Interests in any of the Companys Restricted
Subsidiaries (other than preferred equity of Restricted Subsidiaries issued in compliance
with
2
Section 4.09 and directors qualifying shares or shares required by applicable law to
be held by a Person other than the Company or a Restricted Subsidiary).
Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale:
(1) any single transaction or series of related transactions that involves assets or
Equity Interests of any Restricted Subsidiary having a Fair Market Value of less than $10.0
million;
(2) a transfer of assets between or among the Company and any Restricted Subsidiary;
(3) an issuance or sale of Equity Interests by a Restricted Subsidiary of the Company
to the Company or to another Restricted Subsidiary of the Company;
(4) the sale or lease of inventory, products or services or the lease, assignment or
sub-lease of any real or personal property;
(5) the sale or discounting of accounts receivable in the ordinary course of business;
(6) any sale or other disposition of damaged, worn-out, obsolete or no longer useful
assets or properties;
(7) any sale of assets received by the Company or any of its Restricted Subsidiaries
upon the foreclosure on a Lien;
(8) the sale or other disposition of cash, Cash Equivalents or Marketable Securities;
(9) a Restricted Payment that does not violate Section 4.07 hereof or is a Permitted
Investment;
(10) any sale of Equity Interests in, or Indebtedness or other securities of, an
Unrestricted Subsidiary;
(11) the granting of Liens not otherwise prohibited by this Indenture;
(12) the surrender, or waiver of contract rights, leases, or settlement, release or
surrender of contract, tort or other claims; and
(13) any exchange of assets related to a Permitted Business of comparable market value,
as determined in good faith by the Company.
Available Cash has the meaning assigned to such term in the Partnership Agreement, as in
effect on the Issue Date.
Bank Product Obligations means all obligations and liabilities of any kind, nature or
character (whether direct or indirect, absolute or contingent, liquidated or unliquidated,
voluntary or involuntary, due or to become due in existence on the Issue Date or thereafter
incurred) of the Company or any Guarantor, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise, which may arise under, out of, or in
connection with any treasury, investment, depository, clearing house, wire transfer, commercial
credit card, purchasing card, merchant card, cash management or automated clearing house transfers
of funds services or any related services, including all
3
renewals, extensions and modifications thereof and all costs, attorneys fees and expenses
incurred by a holder of Bank Product Obligations in connection with the collection or enforcement
thereof.
Bankruptcy Law means Title 11, U.S. Code or any similar federal or state law for the relief
of debtors.
Beneficial Owner has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under
the Exchange Act, except that in calculating the beneficial ownership of any particular person
(as that term is used in Section 13(d)(3) of the Exchange Act), such person will 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 after the passage of time. The terms Beneficially Owns and Beneficially Owned
have a corresponding meaning.
Board of Directors means:
(1) with respect to a corporation, the board of directors of the corporation or any
committee thereof duly authorized to act on behalf of such board;
(2) with respect to a partnership, the Board of Directors or other governing body of
the general partner of the partnership;
(3) with respect to a limited liability company, the Board of Directors or other
governing body, and in the absence of same, the manager or board of managers or the managing
member or members or any controlling committee thereof; and
(4) with respect to any other Person, the board or committee of such Person serving a
similar function.
Business Day means a day other than a Saturday, Sunday or other day on which banking
institutions are authorized or required by law, regulation or executive order to close in New York
State.
Capital Lease Obligation means, at the time any determination is to be made, the amount of
the liability in respect of a lease that would at that time be required to be capitalized on a
balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP; provided that any
obligations of the Company or its Restricted Subsidiaries, or of a special purpose or other entity
not consolidated with the Company and its Restricted Subsidiaries, either existing on the Issue
Date or created prior to any recharacterization described below (or any refinancings thereof) (i)
that were not included on the consolidated balance sheet of the Company as capital lease
obligations and (ii) that are subsequently recharacterized as capital lease obligations or, in the
case of such a special purpose or other entity becoming consolidated with the Company and its
Restricted Subsidiaries, due to a change in accounting treatment or otherwise, shall for all
purposes not be treated as Capital Lease Obligations or Indebtedness.
Capital Stock means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity that is not a corporation, any and
all shares, interests, participations, rights or other equivalents (however designated) of
corporate stock;
4
(3) in the case of a partnership or limited liability company, partnership interests
(whether general or limited) or membership interests; and
(4) any other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing Person, but
excluding from all of the foregoing any debt securities convertible into Capital Stock,
whether or not such debt securities include any right of participation with Capital Stock.
Cash Contributions means the aggregate amount of cash contributions made to the capital of
the Company or any Guarantor described in the definition of Contribution Indebtedness.
Cash Equivalents means:
(1) United States dollars or other currencies held by the Company and any of its
Restricted Subsidiaries from time to time in the ordinary course of business;
(2) securities issued or directly and fully guaranteed or insured by the government of
the United States or any agency or instrumentality of such government (provided that the
full faith and credit of such government is pledged in support of those securities) having
maturities of not more than one year from the date of acquisition;
(3) certificates of deposit, time deposits and eurodollar time deposits with maturities
of one year or less from the date of acquisition, bankers acceptances with maturities not
exceeding one year and overnight bank deposits, in each case, with any lender party to the
Revolving Credit Facility or any financial institution that is a member of the Federal
Reserve System, in each case having combined capital and surplus and undivided profits of
not less than $500.0 million, whose debt has a rating, at the time as of which any
investment made therein is made of at least A-1 by S&P or at least P-1 by Moodys or having
capital and surplus in excess of $500.0 million and a Thomson Bank Watch Rating of B or
better;
(4) repurchase obligations for underlying securities of the types described in clauses
(2) and (3) above entered into with any financial institution meeting the qualifications
specified in clause (3) above;
(5) commercial paper having one of the two highest ratings obtainable from Moodys or
S&P and, in each case, maturing within one year after the date of acquisition;
(6) securities issued or fully guaranteed by any state or commonwealth of the United
States, or by any political subdivision or taxing authority thereof having one of the two
highest ratings obtainable from Moodys or S&P, and, in each case, maturing within one year
after the date of acquisition;
(7) money market funds at least 95% of the assets of which constitute Cash Equivalents
of the kinds described in clauses (1) through (5) of this definition; and
(8) Indebtedness or preferred equity issued by Persons with a rating of A or higher
from S&P or A-2 from Moodys with maturities of 24 months or less from the date of
acquisition.
Change of Control means the occurrence of any of the following:
5
(1) the direct or indirect sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of related transactions,
of all or substantially all of the properties or assets of the Company and its Subsidiaries
taken as a whole to any person (as that term is used in Section 13(d) of the Exchange
Act), other than the Permitted Holders or a Permitted Group; or
(2) the consummation of any transaction (including, without limitation, any merger or
consolidation), the result of which is that any person (as defined above), other than the
Permitted Holders or a Permitted Group, becomes the Beneficial Owner, directly or
indirectly, of more than 50% of the Voting Stock of the Company measured by voting power
rather than number of shares.
Notwithstanding the preceding, a conversion of the Company or any of its Restricted Subsidiaries
from a limited liability company, corporation, limited partnership or other form of entity to a
limited liability company, corporation, limited partnership or other form of entity or an exchange
of all of the outstanding Capital Stock in one form of entity for Capital Stock of another form of
entity will not constitute a Change of Control, so long as following such conversion or exchange
the persons (as that term is used in Section 13(d)(3) of the Exchange Act) who Beneficially Owned
the Capital Stock of the Company immediately prior to such transactions continue to Beneficially
Own in the aggregate more than 50% of the Voting Stock of such entity, or continue to Beneficially
Own sufficient Equity Interests in such entity to elect a majority of its directors, managers,
trustees or other persons serving in a similar capacity for such entity, and, in either case no
other person (other than a Permitted Group) Beneficially Owns more than 50% of the Voting Stock
of such entity.
Clearstream means Clearstream Banking, S.A.
Commodity Agreements means, in respect of any Person, any forward contract, commodity swap
agreement, commodity option agreement or other similar agreement or arrangement and designed to
protect such Person against fluctuation in commodity prices.
Company means the Person named as the Company in the first introductory paragraph to this
instrument until a successor Person shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter the Company shall mean such successor Person.
Consolidated Adjusted EBITDA means, with respect to any specified Person for any period, the
Consolidated Net Income of such Person for such period plus, without duplication, to the extent the
same was deducted in calculating Consolidated Net Income:
(1) the provision for taxes based on income, profits or capital, including without
limitation provincial, state, franchise, local, foreign and similar taxes, of such Person
and its Restricted Subsidiaries for such period; plus
(2) the Fixed Charges of such Person and its Restricted Subsidiaries for such period;
plus
(3) depreciation, accretion, depletion, amortization (including amortization of
goodwill and other intangibles, deferred financing fees, debt issuance costs, commissions
and expenses and any amortization included in pension, OPEB or other employee benefit
expenses, but excluding amortization of prepaid cash expenses (other than financing costs)
that were paid in a prior period) and other non-cash expenses (including without limitation
write-downs and impairment of property, plant, equipment and intangibles and other
long-lived assets (including
6
pursuant to the application of Statement of Financial Accounting Standard No. 142,
Goodwill and Other Intangibles and Statement of Financial Accounting Standard No. 144,
Accounting for the Impairment or Disposal of Long Lived Assets) and the impact of purchase
accounting, but excluding any such non-cash expense to the extent that it represents an
accrual of or reserve for cash expenses in any future period or amortization of a prepaid
cash expense that was paid in a prior period) of such Person and its Restricted Subsidiaries
for such period; plus
(4) the amount of any restructuring charges (which, for the avoidance of doubt, shall
include retention, severance, integration, business optimization, systems establishment cost
or excess pension, OPEB, curtailment or other excess charges); plus
(5) the minority interest expense consisting of subsidiary income attributable to
minority equity interests of third parties in any non-wholly owned Subsidiary in such period
or any prior period, except to the extent of dividends declared or paid on Equity Interests
held by third parties; plus
(6) the amount of management, consulting, monitoring and advisory fees and related
expenses paid or accrued during such period; plus
(7) accretion of asset retirement obligations in accordance with SFAS No. 143,
Accounting for Asset Retirement Obligations, and any similar accounting in prior periods;
plus
(8) to the extent not otherwise included, the proceeds of any business interruption
insurance received during such period; plus
(9) to the extent actually reimbursed (and not otherwise included in arriving at
Consolidated Net Income), expenses covered by indemnification provisions in any agreement in
connection with any transaction involving the Company or any of its Subsidiaries.
Consolidated Net Income means, with respect to any specified Person for any period, the
aggregate of the net income of such Person and its Restricted Subsidiaries for such period, on a
consolidated basis, determined in accordance with GAAP and before any deduction for preferred
equity dividends or distributions; provided that:
(1) any net after-tax extraordinary, unusual or nonrecurring gains or losses or income
or expense or charge (including, without limitation, income, expenses and charges from
litigation and arbitration settlements), severance, relocation, and other restructuring
costs, any pre-operating expenses that are expensed and not capitalized, and fees, expenses
or charges related to any offering of securities of such Person or other financing
transaction, any Investment, acquisition, disposition or incurrence or repayment or early
extinguishment of Indebtedness or other obligations permitted to be incurred hereunder (in
each case, whether or not successful), including all fees, expenses and charges, and any
financing charges, including penalty interest and bank charges, related to any Indebtedness
or other obligations, in each case, shall be excluded;
(2) any net after-tax income or loss from disposed, abandoned, transferred, closed or
discontinued operations and any net after-tax gain or loss on disposal of disposed,
abandoned, transferred, closed or discontinued operations shall be excluded;
7
(3) any net after-tax gains or losses (less all fees and expenses or charges relating
thereto) attributable to business dispositions or asset dispositions other than in the
ordinary course of business (as determined in good faith by the Company) shall be excluded;
(4) any net after-tax income or loss (less all fees and expenses or charges relating
thereto) attributable to the early extinguishment of indebtedness and Hedging Obligations or
other derivative instruments shall be excluded;
(5) (A) the net income for such period of any Person that is not a Subsidiary, or that
is an Unrestricted 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 or other
payments in respect of equity that are actually paid in cash (or to the extent converted
into cash) by the referent Person to the Company or a Restricted Subsidiary thereof in
respect of such period and (B) the net income for such period shall include any dividend,
distribution or other payments in respect of equity paid in cash by such Person to the
Company or a Restricted Subsidiary thereof in excess of the amount included in clause (A);
(6) any increase in depreciation, accretion, depletion or amortization or any one-time
non-cash charges (such as purchased in-process research and development or capitalized
manufacturing profit in inventory) resulting from purchase accounting in connection with any
acquisition that is consummated prior to or after the Issue Date shall be excluded;
(7) accruals and reserves that are established within 12 months after an acquisitions
closing date and that are so required to be established as a result of such transaction in
accordance with GAAP or as a result of a modification of accounting policies shall be
excluded;
(8) any impairment charges resulting from the application of Statements of Financial
Accounting Standards No. 142 and No. 144 and the amortization of intangibles pursuant to
Statement of Financial Accounting Standards No. 141 and all asset write-downs and asset
write-offs shall be excluded;
(9) any long-term incentive plan accruals and any compensation expense realized from
grants of stock or unit appreciation or similar rights, stock or unit options or other
rights to officers, directors and employees of such Person or any of its Restricted
Subsidiaries shall be excluded;
(10) (A) any unrealized non-cash gains or losses or charges in respect of Hedging
Obligations (including those resulting from the application of Statement of Financial
Accounting Standard No. 133), (B) any foreign exchange gains and losses and (C) any
adjustments for financial instruments, derivatives or Hedging Obligations required by GAAP
shall be excluded except for any realized exchange gains or losses on derivative instruments
which are included as offsets to operating items as part of a designated hedging
relationship;
(11) the cumulative effect of a change in accounting principles will be excluded; and
(12) the amount by which any income or charge attributable to a post-employment benefit
scheme differs from the current service costs attributable to the scheme will be excluded.
Consolidated Net Tangible Assets means, with respect to any Person at any date of
determination, the aggregate amount of total assets included in such Persons most recent quarterly
or annual consolidated balance sheet prepared in accordance with GAAP less applicable reserves
reflected in
8
such balance sheet, after deducting the following amounts: (a) all current liabilities
reflected in such balance sheet, and (b) all goodwill, trademarks, patents, unamortized debt
discounts and expenses and other like intangibles reflected in such balance sheet.
Contingent Obligations means, with respect to any Person, any obligation of such Person
guaranteeing any performance, leases, dividends, taxes or other obligations that do not constitute
Indebtedness (primary obligations) of any other Person in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person, whether or not
contingent:
(1) to purchase any such primary obligation or any property constituting direct or
indirect security thereof;
(2) to maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor; or
(3) to purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor to make
payment of such obligation against loss in respect thereof.
continuing means, with respect to any Default or Event of Default, that such Default or
Event of Default has not been cured or waived.
Contribution Indebtedness means Indebtedness of the Company or any Guarantor in an aggregate
principal amount not greater than twice the aggregate amount of cash contributions (other than
Excluded Contributions) made to the equity capital of the Company or such Guarantor after the Issue
Date; provided that:
(1) if the aggregate principal amount of such Contribution Indebtedness is greater than
one times such cash contributions to the equity capital of the Company or such Guarantor, as
applicable, the amount in excess shall be Indebtedness (other than secured Indebtedness)
with a Stated Maturity later than the Stated Maturity of the Notes; and
(2) such Contribution Indebtedness (x) is incurred within 180 days after the making of
such cash contributions and (y) is designated as Contribution Indebtedness pursuant to an
Officers Certificate on the incurrence date thereof.
Any cash contribution to the equity capital of the Company or any Guarantor that forms the basis
for an incurrence of Contribution Indebtedness will be disregarded for purposes of Section 4.07
hereof.
Corporate Trust Office of the Trustee means the office of the Trustee at which at any
particular time its corporate trust business in Houston, Texas shall be principally administered,
which office as of the date of this instrument is specified in Section 12.02 hereof, except that
with respect to presentation of Notes for payment or for registration of transfer or exchange, such
term shall mean the office or agency of the Trustee at which at any particular time its corporate
agency business shall be conducted, which office at the date of this instrument is located at 101
Barclay Street, New York, New York 10286; Attention: Corporate Trust Division Corporate Finance
Unit, or, in the case of any of such offices or agency, such other address as the Trustee may
designate from time to time by notice to the Holders and the Company.
Credit Facilities means one or more debt facilities (including, without limitation, the
Revolving Credit Facility), indentures or commercial paper facilities, in each case, with banks or
other institutional lenders or investors providing for revolving credit loans, term loans,
receivables financing
9
(including through the sale of receivables to such lenders or to special purpose entities
formed to borrow from such lenders against such receivables), letters of credit, debt securities or
other indebtedness, in each case, as amended, restated, modified, renewed, refunded, replaced
(whether upon or after termination or otherwise) or refinanced (including by means of sales of debt
securities to institutional investors) in whole or in part from time to time, including any
agreement or indenture extending the maturity thereof or otherwise restructuring all or any portion
of the indebtedness thereunder or increasing the amount loaned or issued thereunder or altering the
maturity thereof.
Currency Agreement means, in respect of a Person, any foreign exchange contract, currency
swap agreement, futures contract, option contract or other similar agreement as to which such
Person is a party or a beneficiary.
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.
Definitive Note means a certificated Note registered in the name of the Holder thereof and
issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A hereto except
that such Note shall not bear the Global Note Legend and shall not have the Schedule of Exchanges
of Interests in the Global Note attached thereto.
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 Non-cash Consideration means the Fair Market Value of non-cash consideration
received by the Company or one of its Restricted Subsidiaries in connection with an Asset Sale that
is so designated as Designated Non-cash Consideration pursuant to an Officers Certificate,
setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in
connection with a subsequent sale of such Designated Non-cash Consideration.
Designated Preferred Stock means Capital Stock of the Company or any direct or indirect
parent company of the Company (other than Disqualified Stock) that is issued for cash (other than
to any of the Companys Subsidiaries or an employee stock ownership plan or trust established by
the Company or any of its Subsidiaries) and is so designated as Designated Preferred Stock,
pursuant to an Officers Certificate, on the issuance date thereof, the cash proceeds of which are
excluded from the calculation set forth in clause (2)(B)(i)(b) of Section 4.07(a) hereof.
Disqualified Stock means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each case, at the option
of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the
holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the
date on which the Notes mature. Notwithstanding the preceding sentence, any Capital Stock will not
constitute Disqualified Stock solely because the holders of the Capital Stock have the right to
require the Company to repurchase such Capital Stock upon the occurrence of a change of control or
an asset sale. The amount of Disqualified Stock deemed to be outstanding at any time for purposes
of this Indenture will be the maximum amount that the Company and its Restricted Subsidiaries may
become obligated to pay upon the maturity of, or pursuant
10
to any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued
dividends. For the avoidance of doubt, preferred units of the Company authorized on the Issue Date
do not constitute Disqualified Stock.
Domestic Subsidiary of a Person means any Subsidiary of the referent Person that is not a
Foreign Subsidiary.
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 (i) an offer and sale of Capital Stock (other than Disqualified Stock
and other than to a Subsidiary of the Company) of the Company or (ii) an offer and sale of Capital
Stock (other than Disqualified Stock and other than to the Company or a Subsidiary of the Company)
of a direct or indirect parent entity of the Company (to the extent the net proceeds therefrom are
contributed to the equity capital of the Company) pursuant to (x) a registration statement that has
been declared effective by the SEC pursuant to the Securities Act (other than a registration
statement on Form S-8 or otherwise relating to equity securities issuable under any employee
benefit plan of the Company or such direct or indirect parent company), or (y) a private issuance
exempt from registration under the Securities Act.
Euroclear means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Exchange Notes means the Notes issued in the Exchange Offer pursuant to Section 2.06(f)
hereof.
Exchange Offer has the meaning set forth in the Registration Rights Agreement.
Exchange Offer Registration Statement has the meaning set forth in the Registration Rights
Agreement.
Excluded Contributions means the net cash proceeds received by the Company after the Issue
Date from:
(1) contributions to its common equity capital; and
(2) the sale (other than to a Subsidiary of the Company) of Capital Stock (other than
Disqualified Stock and Designated Preferred Stock) of the Company,
in each case designated as Excluded Contributions pursuant to an Officers Certificate, the net
cash proceeds of which are excluded from and have not been used towards the calculation set forth
in clause (2)(B)(i)(b) of Section 4.07(a) hereof or any portion of Incremental Funds calculated
therefrom.
Fair Market Value means the value that would be paid by a willing buyer to an unaffiliated
willing seller in a transaction not involving distress or necessity of either party, determined in
good faith by (i) the principal financial officer of the Company for transactions less than $25.0
million and (ii) the Board of Directors of the Company (unless otherwise provided in this
Indenture) for transactions valued at, or in excess of, $25.0 million.
Fixed Charge Coverage Ratio means with respect to any specified Person for any period, the
ratio of the Consolidated Adjusted EBITDA of such Person for such period to the Fixed Charges of
such
11
Person for such period. In the event that the specified Person or any of its Restricted
Subsidiaries incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise
discharges any Indebtedness (other than (i) ordinary working capital borrowings and (ii) in the
case of revolving credit borrowings, in which case interest expense will be computed based upon the
average daily balance of such Indebtedness during the applicable period) or issues, repurchases or
redeems preferred equity 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 will be calculated giving pro forma effect to such incurrence, assumption,
Guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, or
such issuance, repurchase or redemption of preferred equity, 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, Asset Acquisitions,
dispositions, mergers, consolidations and discontinued operations (as determined in accordance with
GAAP), and any related financing transactions, that the specified Person or any of its Restricted
Subsidiaries has both determined to make and made after the Issue Date and during the four-quarter
reference period or subsequent to such reference period and on or prior to or simultaneously with
the Calculation Date shall be calculated on a pro forma basis assuming that all such Asset
Acquisitions, dispositions, mergers, consolidations and discontinued operations (and the change of
any associated Fixed Charges and the change in Consolidated Adjusted EBITDA resulting therefrom)
had occurred on the first day of the four-quarter reference period, including any pro forma expense
and cost reductions and other operating improvements that have occurred or are reasonably expected
to occur, in the reasonable judgment of the chief financial officer of the Company (regardless of
whether these cost savings or operating improvements could then be reflected in pro forma financial
statements in accordance with Regulation S-X promulgated under the Securities Act or any other
regulation or policy of the SEC related thereto). Any Person that is a Restricted Subsidiary on
the Calculation Date will be deemed to have been a Restricted Subsidiary at all times during such
four-quarter period, and if, since the beginning of the four-quarter reference period, any Person
that subsequently became a Restricted Subsidiary or was merged with or into the Company or any of
its other Restricted Subsidiaries since the beginning of such period shall have made any
acquisition, Investment, disposition, merger, consolidation or discontinued operation, in each case
with respect to an operating unit of a business, that would have required adjustment pursuant to
this definition, then the Fixed Charge Coverage Ratio shall be adjusted giving pro forma effect
thereto for such period as if such Asset Acquisition, disposition, discontinued operation, merger
or consolidation had occurred at the beginning of the applicable four-quarter reference period.
Any Person that is not a Restricted Subsidiary on the Calculation Date will be deemed not to have
been a Restricted Subsidiary at any time during such four-quarter period.
For purposes of this definition, whenever pro forma effect is to be given to any transaction,
the pro forma calculations shall be made in good faith by a responsible financial or accounting
officer of the Company. If any Indebtedness bears a floating rate of interest and is being given
pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on
the Calculation Date had been the applicable rate for the entire period (taking into account any
Hedging Obligations applicable to such Indebtedness if such Hedging Obligation has a remaining term
in excess of 12 months). Interest on a Capital Lease Obligation shall be deemed to accrue at an
interest rate reasonably determined by a responsible financial or accounting officer of the Company
to be the rate of interest implicit in such Capital Lease Obligation. For purposes of making the
computation referred to above, interest on any Indebtedness under a revolving credit facility
computed on a pro forma basis shall be computed based upon the average daily balance of such
Indebtedness during the applicable period. Interest on Indebtedness that may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency
interbank offered rate, or other rate, shall be deemed to have been based upon
12
the rate actually chosen, or, if none, then based upon such optional rate chosen as the
Company may designate. Any such pro forma calculation may include adjustments appropriate, in the
reasonable determination of the Company as set forth in an Officers Certificate, to reflect
operating expense reductions reasonably expected to result from any acquisition or merger.
Fixed Charges means, with respect to any specified Person for any period, the sum, without
duplication, of:
(1) the consolidated interest expense of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued, excluding amortization of deferred financing fees,
debt issuance costs and commissions, fees and expenses and the expensing of any bridge,
commitment or other financing fees, commissions, discounts, yield and other fees and charges
(including any interest expense) related to any receivables facility but including original
issue discount, non-cash interest payments, the interest component of any deferred payment
obligations (classified as Indebtedness under this Indenture), the interest component of all
payments associated with Capital Lease Obligations and net of the effect of all payments
made or received pursuant to Hedging Obligations in respect of interest rates; plus
(2) the consolidated interest expense of such Person and its Restricted Subsidiaries
that was capitalized during such period; plus
(3) all cash dividend payments or other cash distributions on any series of preferred
equity of such Person (provided that in no event will any preferred units of the Company
issued in kind as a distribution pursuant to the Partnership Agreement on or after the Issue
Date be considered to be a Fixed Charge) and all other dividend payments or other
distributions on the Disqualified Stock of such Person; less
(4) interest income; less
(5) non-cash interest expense attributable to movement in mark to market valuation of
Hedging Obligations or other derivatives under GAAP; less
(6) accretion or accrual of discounted liabilities not constituting Indebtedness; less
(7) any expense resulting from the discounting of Indebtedness in connection with the
application of purchase accounting in connection with any acquisition; and less
(8) Additional Interest.
Foreign Subsidiary means, with respect to any Person, any Restricted Subsidiary of such
Person that is not organized or existing under the laws of the United States, any state thereof,
the District of Columbia, or any territory thereof and does not guarantee or otherwise provide
direct credit support for any Indebtedness of the Company, and any Restricted Subsidiary of such
Foreign Subsidiary.
GAAP means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a significant segment of the
accounting profession, as in effect on the date of this Indenture.
13
Global Note Legend means the legend set forth in Section 2.06(g)(2) hereof, which is
required to be placed on all Global Notes issued under this Indenture.
Global Notes means, individually and collectively, each of the Restricted Global Notes and
the Unrestricted Global Notes deposited with or on behalf of and registered in the name of the
Depositary or its nominee, substantially in the form of Exhibit A hereto and that bears the Global
Note Legend and that has the Schedule of Exchanges of Interests in the Global Note attached
thereto, issued in accordance with Section 2.01, 2.06(b)(3), 2.06(b)(4), 2.06(d)(2) or 2.06(f)
hereof.
Government Securities means direct obligations of, or obligations Guaranteed by, the United
States of America, and the payment for which the United States pledges its full faith and credit.
Guarantee means a guarantee, other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any manner, including,
without limitation, 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 (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or
services, to take or pay or to maintain financial statement conditions or otherwise).
Guarantors means any Subsidiary of the Company (other than the Co-Issuer) that executes a
Note Guarantee in accordance with the provisions of this Indenture, and their respective successors
and assigns, in each case, until the Note Guarantee of such Person has been released in accordance
with the provisions of this Indenture.
Hedging Obligations means, with respect to any specified Person, the obligations of such
Person under Interest Rate Agreements, Currency Agreements or Commodity Agreements.
Holder means a Person in whose name a Note is registered.
Indebtedness means, with respect to any specified Person, any indebtedness of such Person,
whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by (A) bonds, notes, debentures or similar instruments or (B) letters of
credit (or reimbursement agreements in respect thereof); provided that the underlying
obligation in respect of which the letter of credit was issued would, under one or more of
clause (1) above or (3) to (6) below, be treated as being Indebtedness;
(3) in respect of bankers acceptances;
(4) representing Capital Lease Obligations;
(5) representing the balance deferred and unpaid of the purchase price of any property
or services due more than six months after such property is acquired or such services are
completed; or
(6) to the extent not otherwise included in this definition, Hedging Obligations of
such Person (the amount of any such obligations to be equal at any time to the termination
value of such agreement or arrangement giving rise to such obligation that would be payable
by such Person at such time), if and to the extent any of the preceding items (other than
letters of credit
14
and Hedging Obligations) would appear as a liability upon a balance sheet of the
specified Person prepared in accordance with GAAP. In addition, the term Indebtedness
includes (i) 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,
however, that the amount of such Indebtedness shall be the lesser of (x) the Fair Market
Value of such asset as such date of determination and (y) the amount of such Indebtedness of
such other Person; and (ii) to the extent not otherwise included, the Guarantee by the
specified Person of any Indebtedness of any other Person.
Notwithstanding the foregoing, Indebtedness shall not include (a) accrued expenses, royalties and
trade payables; (b) Contingent Obligations incurred in the ordinary course of business; (c) asset
retirement obligations and obligations in respect of reclamation and workers compensation
(including pensions and retiree medical care) that are not overdue by more than 90 days; or (d) any
obligations under Currency Agreements, Commodity Agreements and Interest Rate Agreements; provided
that such agreements are entered into for bona fide hedging purposes of the Company or its
Restricted Subsidiaries (as determined in good faith by the Board of Directors or senior management
of the Company, whether or not accounted for as a hedge in accordance with GAAP) and, in the case
of Currency Agreements or Commodity Agreements, such Currency Agreements or Commodity Agreements
are related to business transactions of the Company or its Restricted Subsidiaries entered into in
the ordinary course of business and, in the case of Interest Rate Agreements, such Interest Rate
Agreements substantially correspond in terms of notional amount, duration and interest rates, as
applicable, to Indebtedness of the Company or its Restricted Subsidiaries incurred without
violation of this Indenture.
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.
Initial Notes has the meaning assigned to it in the preamble to this Indenture.
Initial Purchasers means UBS Securities LLC, BNP Paribas Securities Corp., RBC Capital
Markets, LLC, RBS Securities Inc.
Interest Rate Agreement means with respect to any Person any interest rate protection
agreement, interest rate future agreement, interest rate option agreement, interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge
agreement or other similar agreement or arrangement as to which such Person is party or a
beneficiary.
Investment Grade Rating means a Moodys rating of Baa3 (or the equivalent) or higher and an
S&P rating of BBB- (or the equivalent) or higher, or, if either such Rating Agency ceases to rate
the Notes for reasons outside of the Companys control, the equivalent investment grade credit
rating from any other Rating Agency.
Investment Grade Securities means:
(1) securities issued or directly and fully guaranteed or insured by the U.S.
government or any agency or instrumentality thereof (other than Cash Equivalents) and in
each case with maturities not exceeding two years from the date of acquisition;
15
(2) investments in any fund that invests exclusively in investments of the type
described in clause (1) which fund may also hold immaterial amounts of cash pending
investment and/or distribution; and
(3) corresponding instruments in countries other than the United States customarily
utilized for high quality investments and in each case with maturities not exceeding two
years from the date of acquisition.
Investments means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other
obligations), advances or capital contributions (excluding accounts receivable, trade credit and
advances to customers and commission, travel and similar advances to officers, employees and
consultants made in the ordinary course of business), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities, together with all items that
are or would be classified as investments on a balance sheet prepared in accordance with GAAP.
Issue Date means April 1, 2011.
Letter of Transmittal means the letter of transmittal to be prepared by the Company and sent
to all Holders of the Notes for use by such Holders in connection with the Exchange Offer.
Lien means, with respect to any asset, (a) any mortgage, deed of trust, lien (statutory or
other), hypothecation, assignment, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease
or title retention agreement (or any financing lease having substantially the same economic effect
as any of the foregoing) relating to such asset and (c) in the case of securities (other than
securities representing an interest in a joint venture that is not a Subsidiary or the Company),
any purchase option, call or similar right of a third party with respect to such securities.
Marketable Securities means, with respect to any Asset Sale, any readily marketable equity
securities that are (i) traded on The New York Stock Exchange, the American Stock Exchange or the
Nasdaq National Market; and (ii) issued by a corporation having a total equity market
capitalization of not less than $250.0 million; provided that the excess of (A) the aggregate
amount of securities of any one such corporation held by the Company and any Restricted Subsidiary
over (B) ten times the average daily trading volume of such securities during the 20 immediately
preceding trading days shall be deemed not to be Marketable Securities, as determined on the date
of the contract relating to such Asset Sale.
Material Restricted Subsidiary means any Restricted Subsidiary of the Company whose gross
assets or Consolidated Adjusted EBITDA (in each case excluding intra-group items (except for
power-by-the-hour maintenance, lease and similar or related transactions)) are equal to or exceed
5.0% of Consolidated Net Tangible Assets or Consolidated Adjusted EBITDA of the Company and its
Subsidiaries.
Moodys means Moodys Investors Service, Inc. and its successors and assigns.
Net Proceeds means the aggregate cash proceeds received by the Company or any of its
Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash
received upon the sale or other disposition of any Designated Non-cash Consideration received in
any Asset Sale and any cash payments received by way of deferred payment of principal pursuant to a
note or installment receivable or otherwise, but only as and when received, but excluding the
assumption by the acquiring Person of Indebtedness relating to the disposed assets or other
consideration received in any non-cash
16
form), net of the direct costs relating to such Asset Sale and the sale of such Designated
Non-cash Consideration, including, without limitation, legal, accounting and investment banking
fees, and sales commissions, and any relocation expenses incurred as a result of the Asset Sale,
taxes paid or payable as a result of the Asset Sale, in each case, after taking into account any
available tax credits or deductions and any tax sharing arrangements, and amounts required to be
applied to the repayment of Indebtedness secured by a Lien on the asset or assets that were the
subject of such Asset Sale, all distributions and other payments required to be made to minority
interest holders in Subsidiaries or joint ventures or to holders of royalty or similar interests as
a result of such Asset Sale and any reserve for adjustment in respect of the sale price of such
asset or assets established in accordance with GAAP, including without limitation, pension and
post-employment benefit liabilities and liabilities related to environmental matters or against any
indemnification obligations associated with such transaction.
Non-Recourse Debt means Indebtedness:
(1) as to which neither the Company nor any of its Restricted Subsidiaries (a) provides
credit support of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness) other than a pledge of the Equity Interests of any Unrestricted
Subsidiaries, (b) is directly or indirectly liable (as a guarantor or otherwise) other than
by virtue of a pledge of the Equity Interests of any Unrestricted Subsidiaries, or (c)
constitutes the lender; and
(2) no default with respect to which (including any rights that the holders of the
Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would
permit, upon notice, lapse of time or both, any holder of any other Indebtedness (other than
the Notes offered hereby) of the Company or any of its Restricted Subsidiaries to declare a
default on such other Indebtedness or cause the payment of the Indebtedness to be
accelerated or payable prior to its Stated Maturity.
Non-U.S. Person means a Person who is not a U.S. Person.
Note Guarantee means the Guarantee by each Guarantor of the Issuers obligations under this
Indenture and the Notes, executed pursuant to the provisions of this Indenture.
Notes has the meaning assigned to it in the preamble to this Indenture. The Initial Notes,
any Additional Notes and any Exchange Notes shall be treated as a single class for all purposes
under this Indenture, and unless the context otherwise requires, all references to the Notes shall
include the Initial Notes, any Additional Notes and any Exchange Notes.
Obligations means any principal (including reimbursement obligations with respect to letters
of credit whether or not drawn), interest, premium (if any), fees, indemnifications,
reimbursements, expenses and other liabilities payable under the documentation governing any
Indebtedness.
Offering Memorandum means that certain offering memorandum, dated March 25, 2011, relating
to the initial offering of the Notes.
Officer means, with respect to any Person, the chairman of the Board of Directors, the
principal executive officer, the president, the principal operating officer, the principal
financial officer, the treasurer, any assistant treasurer, the controller, the secretary or any
vice-president of such Person (or, if such Person is a limited partnership, the general partner of
such Person).
17
Officers Certificate means a certificate signed by any 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.
Operating Surplus has the meaning assigned to such term in the Partnership Agreement, as in
effect on the Issue Date.
Opinion of Counsel means an opinion from legal counsel, who is reasonably acceptable to the
Trustee, that meets the requirements of Section 12.05 hereof, who may be an employee of or counsel
to the Company or any Subsidiary of the Company.
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
DTC, shall include Euroclear and Clearstream).
Participating Broker-Dealer has the meaning set forth in the Registration Rights Agreement.
Partnership Agreement means the Second Amended and Restated Agreement of Limited Partnership
of the Company dated as of the Issue Date as in effect on the Issue Date and as such may be further
amended, modified or supplemented from time to time.
Permitted Business means the businesses of the Company and its Subsidiaries engaged in on
the Issue Date and any other activities that are similar, ancillary or reasonably related to, or a
reasonable extension, expansion or development of, such businesses or ancillary thereto.
Permitted Business Investments means Investments by the Company or any of its Restricted
Subsidiaries in any Unrestricted Subsidiary or in any joint venture; provided that:
(1) the Company would, at the time of such Investment and after giving pro forma effect
thereto as if such Investment 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(a) hereof or (b) such
Investment does not exceed the aggregate amount of Incremental Funds not previously expended
pursuant to Section 4.07 hereof at the time of such Investment; provided that the amount of
any such Investment will be excluded from clauses (2)(B)(i)(a) - (2)(B)(i)(d) of Section
4.07(a) hereof or any portion of Incremental Funds resulting from such clauses (2)(B)(i)(a)
- (2)(B)(i)(d) of Section 4.07(a) hereof;
(2) if such Unrestricted Subsidiary or joint venture has outstanding Indebtedness at
the time of such Investment, either (a) all such Indebtedness is Non-Recourse Debt or (b)
any such Indebtedness that is recourse to the Company or any of its Restricted Subsidiaries
(which shall include, without limitation, all Indebtedness for which the Company or any of
its Restricted Subsidiaries may be directly or indirectly, contingently or otherwise,
obligated to pay, whether pursuant to the terms of such Indebtedness, by law or pursuant to
any guarantee, including, without limitation, any claw-back, make-well or keep-well
arrangement) would, at the time of such Investment and after giving pro forma effect thereto
as if such Investment had been made at the beginning of the applicable four-quarter period,
have been permitted to be incurred by the Company and its Restricted Subsidiaries pursuant
to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof; and
18
(3) such Unrestricted Subsidiarys or joint ventures activities are not outside the
scope of the Permitted Business.
Permitted Group means any group of investors that is deemed to be a person (as that term
is used in Section 13(d)(3) of the Exchange Act) at any time prior to the Companys initial public
offering of limited partnership interests, by virtue of the Partnership Agreement, as the same may
be amended, modified or supplemented from time to time; provided that no single Person (other than
the Permitted Holders) Beneficially Owns (together with its Affiliates) more of the Voting Stock of
the Company that is Beneficially Owned by such group of investors than is then collectively
Beneficially Owned by the Permitted Holders in the aggregate.
Permitted Holders means First Reserve Management, LP and its Affiliates. Any person or group
whose acquisition of beneficial ownership constitutes a Change of Control in respect of which a
Change of Control Offer is made in accordance with the requirements of this Indenture will
thereafter, together with its Affiliates, constitute an additional Permitted Holder.
Permitted Investments means:
(1) any Investment in the Company or in a Restricted Subsidiary of the Company;
(2) any Investment in cash, Cash Equivalents or Investment Grade Securities;
(3) any Investment by the Company or any Restricted Subsidiary of the Company in a
Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of the Company; or
(b) such Person, in one transaction or a series of related transactions, 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;
and, in each case, any Investment held by any such Person;
(4) any Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 4.10 hereof;
(5) any acquisition of assets or Capital Stock solely in exchange for the issuance of
Equity Interests (other than Disqualified Stock) of the Company or a direct or indirect
parent company of the Company;
(6) any Investments received (i) in compromise or resolution of (A) obligations of
trade creditors or customers that were incurred in the ordinary course of business of the
Company or any of its Restricted Subsidiaries, including pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of any trade
creditor or customer; or (B) litigation, arbitration or other disputes; or (ii) as a result
of a foreclosure by the Company or any of its Restricted Subsidiaries with respect to any
secured Investment or other transfer of title with respect to any secured Investment in
default;
(7) Investments represented by Hedging Obligations;
19
(8) loans or advances to officers, directors and employees made in the ordinary course
of business or consistent with the past practice of the Company or any Restricted Subsidiary
of the Company;
(9) repurchases of the Notes;
(10) Permitted Business Investments;
(11) any Affiliate transaction to the extent it constitutes an Investment, that is
permitted by and made in accordance with the provisions of Section 4.11(b) hereof (except
for transactions described in clauses (3), (6), (7), (8), (9), (10), (12) and (13) of
Section 4.11(b));
(12) (A) Guarantees issued in accordance with Section 4.09 and Section 4.15 hereof and
(B) Guarantees of performance or other obligations (other than Indebtedness) arising in the
ordinary course of business or consistent with past practice;
(13) any Investment existing on the Issue Date and any Investment that replaces,
refinances or refunds an existing Investment; provided that the new Investment is in an
amount that does not exceed the amount replaced, refinanced or refunded, and is made in the
same Person as the Investment replaced, refinanced or refunded;
(14) Investments consisting of purchases and acquisitions of parts, buildings,
inventory, supplies, materials and equipment or purchases of contract rights or licenses or
leases of intellectual property, in each case in the ordinary course of business; and
(15) additional Investments by the Company or any 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), taken together with all other Investments
made pursuant to this clause (15) that are at the time outstanding not to exceed the greater
of (A) $35.0 million and (B) 4.5% of Consolidated Net Tangible Assets; provided, however,
that if any Investment pursuant to this clause (15) is made in a Person that is not a
Restricted Subsidiary of the Company at the date of the making of such Investment and such
Person becomes a Restricted Subsidiary of the Company after such date, such Investment shall
thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have
been made pursuant to this clause (15) for so long as such Person continues to be a
Restricted Subsidiary;
provided, however, that with respect to any Investment, the Company may, in its sole discretion,
allocate all or any portion of any Investment to one or more of the above clauses (1) through (15)
so that the entire Investment would be a Permitted Investment.
Permitted Liens means:
(1) Liens with respect to the Revolving Credit Facility or any other Credit Facilities;
(2) Liens in favor of the Company or any of its Restricted Subsidiaries;
(3) Liens on property of a Person existing at the time such Person is merged with or
into or consolidated with the Company or any Restricted Subsidiary of the Company; 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;
20
(4) Liens on property (including Capital Stock) existing at the time of acquisition of
the property by the Company or any Subsidiary of the Company; provided that such Liens were
in existence prior to, such acquisition, and not incurred in contemplation of, such
acquisition;
(5) Liens or deposits to secure the performance of statutory or regulatory obligations,
or surety, appeal, indemnity or performance bonds, warranty and contractual requirements or
other obligations of a like nature incurred in the ordinary course of business and Liens
over cash deposits in connection with an acquisition, lease, disposition or investment;
(6) Liens securing reimbursement obligations with respect to commercial letters of
credit which encumber documents and other assets relating to such letters of credit and
products and proceeds thereof and any cash cover relating to a letter of credit or bank
guarantee;
(7) Liens to secure Indebtedness (including Capital Lease Obligations) permitted to be
incurred pursuant to Section 4.09(b)(4) hereof covering only the assets acquired with or
financed by such Indebtedness;
(8) Liens securing Indebtedness permitted to be incurred pursuant to Section
4.09(b)(16) hereof;
(9) Liens existing on the Issue Date;
(10) Liens for taxes, assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded; provided that any reserve or other appropriate
provision as is required in conformity with GAAP has been made therefor;
(11) Liens incurred or deposits made in the ordinary course of business to secure
payment of workers compensation or to participate in any fund in connection with workmens
compensation, unemployment insurance, old-age pensions or other social security programs;
(12) Liens imposed by law, such as carriers, warehousemens, landlords, lessors,
suppliers, banks, repairmens and mechanics Liens, and Liens of landlords securing
obligations to pay lease payments that are not yet due and payable or in default, in each
case, incurred in the ordinary course of business;
(13) leases or subleases granted to others that do not materially interfere with the
ordinary conduct of business of the Company or any of its Restricted Subsidiaries;
(14) easements, rights of way, zoning and similar restrictions, reservations or
encumbrances in respect of real property or title defects that were not incurred in
connection with Indebtedness and that do not in the aggregate materially adversely affect
the value of said properties (as such properties are used by the Company or its
Subsidiaries) or materially impair their use in the operation of the business of the Company
and its Subsidiaries;
(15) Liens created for the benefit of (or to secure) the Notes, the Note Guarantees,
and any exchange notes or exchange guarantees;
(16) Liens to secure any Permitted Refinancing Indebtedness permitted to be incurred
under this Indenture; provided, however, that:
21
(a) the new Lien shall be limited to all or part of the same property and
assets that secured or, under the written agreements pursuant to which the original
Lien arose, could secure the original Lien (plus improvements and accessions to,
such property or proceeds or distributions thereof); and
(b) the Indebtedness secured by the new Lien is not increased to any amount
greater than the sum of (x) the outstanding principal amount, or, if greater,
committed amount, of the Permitted Refinancing Indebtedness and (y) an amount
necessary to pay any fees and expenses, including premiums, related to such renewal,
refunding, refinancing, replacement, defeasance or discharge;
(17) Liens arising from precautionary Uniform Commercial Code financing statement
filings regarding operating leases entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business;
(18) Liens arising out of judgments constituting an Event of Default so long as any
appropriate legal proceedings that may have been duly initiated for the review of such
judgment shall not have been finally terminated or the period within which such legal
proceedings may be initiated shall not have expired;
(19) Liens to secure Indebtedness permitted to be incurred pursuant to Section
4.09(b)(13) hereof;
(20) licenses of intellectual property in the ordinary course of business;
(21) Liens on Capital Stock of an Unrestricted Subsidiary that secure Indebtedness or
other obligations of such Unrestricted Subsidiary;
(22) leases and subleases of real property which do not materially interfere with the
ordinary conduct of the business of the Company and its Restricted Subsidiaries;
(23) Liens to secure a defeasance trust;
(24) Liens on equipment of the Company or any Restricted Subsidiary granted in the
ordinary course of business to clients of which such equipment is located;
(25) Liens securing insurance premium financing arrangements; provided that such Lien
is limited to the applicable insurance contracts;
(26) Liens securing the aggregate amount of Indebtedness (including Acquired Debt)
incurred in connection with (or at any time following the consummation of) an Asset
Acquisition made in accordance with this Indenture equal to, at the time of incurrence, the
net increase in inventory, accounts receivable and net property, reserves, plant and
equipment attributable to such Asset Acquisition from the amounts reflected on the Companys
historical consolidated balance sheet as of the end of the full fiscal quarter ending on or
prior to the date of such Asset Acquisition, calculated after giving effect on a pro forma
basis to such Asset Acquisition (which amount may, but need not, be incurred in whole or in
part under the Revolving Credit Facility) less the amount of Indebtedness incurred in
connection with such Asset Acquisition secured by Liens pursuant to clauses (4) or (7)
above;
22
(27) Liens arising under retention of title, hire purchase or conditional sale
arrangements arising under provisions in a suppliers standard conditions of supply in
respect of goods or services supplied to the Company or any Restricted Subsidiary in the
ordinary course of business and on arms length terms;
(28) Liens arising by way of set-off or pledge (in favor of the account holding bank)
arising by operation of law or pursuant to standard banking terms or conditions; provided
that the relevant bank account has not been set up nor has the relevant credit balance
arisen in order to implement a secured financing;
(29) Liens encumbering reasonable customary initial deposits and margin deposits and
similar Liens attaching to commodity trading accounts or other brokerage accounts incurred
in the ordinary course of business and not for speculative purposes;
(30) Liens securing Hedging Obligations;
(31) any (a) interest or title of a lessor or sublessor under any lease, (b)
restriction or encumbrance that the interest or title of such lessor or sublessor may be
subject to (including, without limitation, ground leases or other prior leases of the
demised premises, mortgages, mechanics liens, tax liens, and easements); (c) subordination
of the interest of the lessee or sublessee under such lease to any restrictions or
encumbrance referred to in the preceding clause (b) or (d) Liens over rental deposits with a
lessor pursuant to a property lease entered into in the ordinary course of business;
(32) Liens incurred under or in connection with lease and sale and leaseback
transactions and novations and any refinancings thereof (and Liens securing obligations
under lease transaction documents relating thereto), including, without limitation, Liens
over the assets which are the subject of such lease, sale and leaseback, novations,
refinancings, assets and contract rights related thereto (including, without limitation, the
right to receive rental rebates or deferred sale payments), sub-lease rights, insurances
relating thereto and rental deposits; and
(33) Liens securing Indebtedness or other obligations of the Company or any Subsidiary
of the Company with respect to obligations that do not exceed the greater of (A) $40.0
million and (B) 5.0% of Consolidated Net Tangible Assets at any one time outstanding.
Permitted Payments to Parent means, without duplication as to amounts:
(1) payments to any parent companies of the Company in amounts equal to the amounts
required for any direct payment of the Company to pay fees and expenses (including franchise
or similar taxes) required to maintain its corporate existence, customary salary, bonus and
other benefits payable to officers and employees of any direct parent of the Company and
general corporate overhead expenses of any direct parent of the Company to the extent such
fees and expenses are attributable to the ownership or operation of the Company and its
Subsidiaries; and
(2) dividends or distributions paid to such parent companies, if applicable, in amounts
equal to amounts required for such parent companies, if applicable, to pay interest and/or
principal on Indebtedness the proceeds of which have been contributed to the Company or any
of its Restricted Subsidiaries and that has been guaranteed by, or is otherwise considered
Indebtedness of, the Company incurred in accordance with Section 4.09 hereof.
23
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 renew,
refund, refinance, replace, defease or discharge other Indebtedness of the Company or any of the
Companys Restricted Subsidiaries (other than intercompany Indebtedness); provided that:
(1) the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness renewed, refunded, refinanced, replaced, defeased or
discharged (plus any premium required to be paid on the Indebtedness being so renewed,
refunded, replaced, defeased or discharged, plus the amount of all fees, expenses and
accrued interest incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity date equal to or later
than the final maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the remaining Weighted Average Life to Maturity of, the Indebtedness being
renewed, refunded, refinanced, replaced, defeased or discharged; provided that this clause
(2) shall not apply to debt under Credit Facilities;
(3) if the Indebtedness being renewed, refunded, refinanced, replaced, defeased or
discharged is subordinated in right of payment to the Notes, such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date of, and is
subordinated in right of payment to, the Notes on terms at least as favorable to the Holders
of Notes as those contained in the documentation governing the Indebtedness being renewed,
refunded, refinanced, replaced, defeased or discharged; and
(4) such Permitted Refinancing Indebtedness shall not include Indebtedness of the
Company or a Restricted Subsidiary that refinances Indebtedness of an Unrestricted
Subsidiary.
Person means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company or government or
other entity.
Private Placement Legend means the legend set forth in Section 2.06(g)(1) hereof to be
placed on all Notes issued under this Indenture except where otherwise permitted by the provisions
of this Indenture.
QIB means a qualified institutional buyer as defined in Rule 144A.
Rating Agency means each of S&P and Moodys, or if S&P or Moodys or both shall not make a
rating on the Notes publicly available, a nationally recognized statistical rating organization or
organizations, within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by
the Company as a replacement agency or agencies for S&P or Moodys, or both, as the case may be.
Registration Rights Agreement means the Registration Rights Agreement, dated as of April 1,
2011, among the Issuers, the Guarantors and the Initial Purchasers named therein, as such agreement
may be amended, modified or supplemented from time to time and, with respect to any Additional
Notes, one or more registration rights agreements among the Issuers, the Guarantors and the other
parties thereto, as such agreement(s) may be amended, modified or supplemented from time to time,
relating to rights given by the Issuers to the purchasers of Additional Notes to register such
Additional Notes under the Securities Act.
Regulation S means Regulation S promulgated under the Securities Act.
24
Regulation S Global Note means a Global Note substantially in the form of Exhibit A hereto
bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of
and registered in the name of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 903 of Regulation S.
Related Party means:
(1) any controlling stockholder, partner, member, 50% (or more) owned Subsidiary, or
immediate family member (in the case of an individual) of any Equity Investor;
(2) any trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 50% or more controlling
interest of which consist of any one or more Equity Investors and/or such other Persons
referred to in the immediately preceding clause; or
(3) any Person with whom an Equity Investor or a Related Party (under clause (1) or (2)
of this definition of Related Party) may be deemed as part of a group within the meaning
of Section 13(d)(3) of the Exchange Act.
Reporting Failure means the failure of the Company to comply with the provisions specified
in Section 4.03 hereof (after giving effect to any grace period specified under Rule 12b-25 under
the Exchange Act).
Responsible Officer when used with respect to the Trustee, means any officer assigned to the
Corporate Trust Division Corporate Finance Unit of the Trustee (or any successor division or
unit of the Trustee) located at the Corporate Trust Office of the Trustee who shall have direct
responsibility for the administration of this Indenture, and for the purposes of Section 7.01(c)(2)
and the second sentence of Section 7.05 shall also include any other officer of the Trustee to whom
any corporate trust matter is referred because of such officers knowledge of and familiarity with
the particular subject.
Restricted Definitive Note means a Definitive Note bearing the Private Placement Legend.
Restricted Global Note means a Global Note bearing the Private Placement Legend.
Restricted Investment means an Investment other than a Permitted Investment.
Restricted Period means the 40-day distribution compliance period as defined in Regulation S.
Restricted Subsidiary of a Person means any Subsidiary of the referent Person that is not an
Unrestricted Subsidiary.
Revolving Credit Facility means that certain amended and restated credit agreement, dated as
of October 1, 2010, by and among the Company, the Guarantors, the lenders party thereto in their
capacities as lenders thereunder, BNP Paribas, as Collateral Agent and as Administrative Agent, and
the other parties thereto, including any guarantees, collateral documents, instruments and
agreements executed in connection therewith, and any amendments, supplements, modifications,
extensions, renewals, restatements, replacements, refundings or refinancings thereof and any
indentures or credit facilities or commercial paper facilities with banks or other institutional
lenders or investors that replace, refund or refinance any part of the loans, notes, other credit
facilities or commitments thereunder, including any such replacement, refunding or refinancing
facility or indenture that increases the amount borrowable
25
thereunder or alters the maturity thereof (provided that such increase in borrowings is
permitted under Section 4.09 hereof).
Rule 144 means Rule 144 promulgated under the Securities Act.
Rule 144A means Rule 144A promulgated under the Securities Act.
Rule 903 means Rule 903 promulgated under the Securities Act.
Rule 904 means Rule 904 promulgated under the Securities Act.
S&P means Standard & Poors Ratings Services and its successors and assigns.
SEC means the Securities and Exchange Commission.
Securities Act means the Securities Act of 1933, as amended.
SFAS means Statement of Financial Accounting Standards.
Shelf Registration Statement means the Shelf Registration Statement as defined in the
Registration Rights Agreement.
Significant Subsidiary means any Subsidiary that would be a significant subsidiary as
defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as
such Regulation is in effect on the Issue Date.
Stated Maturity means, with respect to any installment of principal on any series of
Indebtedness, the date on which the payment of principal was scheduled to be paid in the
documentation governing such Indebtedness as of the Issue Date, and will not include any Contingent
Obligations to repay, redeem or repurchase any such principal prior to the date originally
scheduled for the payment thereof.
Subsidiary means, with respect to any specified Person:
(1) any corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency and after giving effect to any voting agreement or stockholders agreement
that effectively transfers voting power) to vote in the election of directors, managers or
trustees of the corporation, association or other business entity is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person (or a combination thereof); and
(2) any partnership or limited liability company of which (a) more than 50% of the
capital accounts, distribution rights, total equity and voting interests or general and
limited partnership interests, as applicable, are owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of such Person or a
combination thereof, whether in the form of membership, general, special or limited
partnership interest or otherwise, and (b) such Person or any Subsidiary of such Person is a
controlling general partner or otherwise controls such entity.
TIA
means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).
26
Treasury Rate means, as of any redemption date, the yield to maturity as of such redemption
date of United States Treasury securities with a constant maturity (as compiled and published in
the most recent Federal Reserve Statistical Release H.15(519) that has become publicly available at
least two Business Days prior to the redemption date (or, if such Statistical Release is no longer
published, any publicly available source of similar market data)) most nearly equal to the period
from the redemption date to April 1, 2015; provided, however, that if the period from the
redemption date to April 1, 2015, is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a constant maturity of one year will be used.
Trustee means The Bank of New York Mellon Trust Company, N.A. until a successor replaces it
in accordance with the applicable provisions of this Indenture and thereafter means the successor
serving hereunder.
Unrestricted Definitive Note means a Definitive Note that does not bear and is not required
to bear the Private Placement Legend.
Unrestricted Global Note means a Global Note that does not bear and is not required to bear
the Private Placement Legend.
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 resolution of the Board of
Directors of the Company, and any Subsidiary of an Unrestricted Subsidiary, but only to the extent
that, in each case, such Subsidiary:
(1) except to the extent permitted by subclause (2)(b) of the definition of Permitted
Business Investments, has no Indebtedness other than Non-Recourse Debt (other than
guarantees of performance of the Unrestricted Subsidiary made in the ordinary course of
business, excluding guarantees of Indebtedness for borrowed money);
(2) is a Person with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity
Interests or (b) to maintain or preserve such Persons financial condition or to cause such
Person to achieve any specified levels of operating results; and
(3) has not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Company or any of its Restricted Subsidiaries.
U.S. Person means a U.S. Person as defined in Rule 902(k) promulgated under the Securities
Act.
U.S. Dollar Equivalent means with respect to any monetary amount in a currency other than
U.S. dollars, at any time for determination thereof, the amount of U.S. dollars obtained by
converting such foreign currency involved in such computation into U.S. dollars at the spot rate
for the purchase of U.S. dollars with the applicable foreign currency as published in The Wall
Street Journal in the Exchange Rates column under the heading Currency Trading on the date two
Business Days prior to such determination.
Voting Stock of any specified 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.
27
Weighted Average Life to Maturity means, when applied to any Indebtedness at any date, the
number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect of the Indebtedness, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between such date
and the making of such payment; by
(2) 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) will at the time be owned by such Person or by one or more Wholly
Owned Restricted Subsidiaries of such Person.
Section 1.02 Other Definitions.
Defined | ||||
Term | in Section | |||
Affiliate Transaction |
4.11 | (a) | ||
Asset Sale Offer |
4.10 | (c) | ||
Authentication Order |
2.02 | |||
Calculation Date |
1.01 | |||
Change of Control Offer |
4.14 | (a) | ||
Change of Control Payment |
4.14 | (a) | ||
Change of Control Payment Date |
4.14 | (a) | ||
Co-Issuer |
Preamble | |||
Covenant Defeasance |
8.03 | |||
DTC |
2.03 | |||
Event of Default |
6.01 | |||
Excess Proceeds |
4.10 | (c) | ||
Fall-Away Period |
4.17 | |||
Incremental Funds |
4.07 | (a) | ||
incur |
4.09 | (a) | ||
Initial Lien |
4.12 | |||
Issuers |
Preamble | |||
Legal Defeasance |
8.02 | |||
Offer Period |
4.10 | (e) | ||
Paying Agent |
2.03 | |||
Payment Default |
6.01 | |||
Permitted Debt |
4.09 | (b) | ||
Registrar |
2.03 | |||
Restricted Payments |
4.07 | (a) | ||
Trailing Four Quarters |
4.07 | (a) |
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of
the TIA, the provision is incorporated by reference in and made a part of this Indenture.
28
The following TIA terms used in this Indenture have the following meanings:
indenture securities means the Notes;
indenture security Holder means a Holder;
indenture to be qualified means this Indenture;
indenture trustee or institutional trustee means the Trustee; and
obligor on the Notes and the Note Guarantees means the Issuers and the Guarantors,
respectively, and any successor obligor upon the Notes and the Note Guarantees, respectively.
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:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(iii) or is not exclusive;
(iv) words in the singular include the plural, and in the plural include the singular;
(v) will shall be interpreted to express a command;
(vi) provisions apply to successive events and transactions;
(vii) references to sections of or rules under the Securities Act will be deemed to
include substitute, replacement of successor sections or rules adopted by the SEC from time
to time;
(viii) references to Sections, Articles, Exhibits, Subsections or other subdivisions
are references to Sections, Articles, Exhibits, Subsections or other subdivisions of this
Indenture unless otherwise specified; and
(ix) the words hereof, herein, hereunder and words of similar import are
references to this Indenture as a whole and not to any particular provisions of this
Indenture.
ARTICLE 2
THE NOTES
THE NOTES
Section 2.01 Form and Dating.
(a) General. The Notes and the Trustees certificate of authentication will be substantially
in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by
law,
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stock exchange rule or usage. Each Note will be dated the date of its authentication. The
Notes shall be in denominations of $2,000 and integral multiples of $1,000 in excess of $2,000.
The terms and provisions contained in the Notes will constitute, and are hereby expressly
made, a part of this Indenture and the Issuers, the Guarantors and the Trustee, by their execution
and delivery of this Indenture, expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be controlling.
(b) Global Notes. Notes issued in global form will be substantially in the form of Exhibit A
(including the Global Note Legend thereon and the Schedule of Exchanges of Interests in the Global
Note attached thereto). Notes issued in definitive form will be substantially in the form of
Exhibit A hereto (but without the Global Note Legend thereon and without the Schedule of Exchanges
of Interests in the Global Note attached thereto). Each Global Note will represent such of the
outstanding Notes as will be specified therein and each shall provide that it represents the
aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a
Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby will be made by the Trustee or the Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.06 hereof.
(c) Euroclear and Clearstream Procedures Applicable. The provisions of the Operating
Procedures of the Euroclear System and Terms and Conditions Governing Use of Euroclear and the
General Terms and Conditions of Clearstream Banking and Customer Handbook of Clearstream will
be applicable to transfers of beneficial interests in the Regulation S Global Note that are held by
Participants through Euroclear or Clearstream.
Section 2.02 Execution and Authentication.
At least one Officer must sign the Notes for each Issuer 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 will nevertheless be valid.
A Note will not be valid until authenticated by the manual signature of the Trustee. The
signature will be conclusive evidence that the Note has been authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Issuers signed by two Officers of
each of the Issuers (an Authentication Order), authenticate Notes for original issue that may be
validly issued under this Indenture, including any Additional Notes and any Exchange Notes. The
aggregate principal amount of Notes outstanding at any time may not exceed the aggregate principal
amount of Notes authorized for issuance by the Issuers pursuant to one or more Authentication
Orders, except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the Issuers 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
Issuers.
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Section 2.03 Registrar and Paying Agent.
The Issuers will 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 will keep a register of the Notes and of their transfer
and exchange. The Issuers 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 Issuers may change any Paying Agent or Registrar without notice to
any Holder. The Issuers will notify the Trustee in writing of the name and address of any Agent
not a party to this Indenture. If the Issuers fail to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Issuers or any of the Companys
Subsidiaries may act as Paying Agent or Registrar.
The Issuers initially appoint The Depository Trust Company (DTC) to act as Depositary with
respect to the Global Notes.
The Issuers initially appoint 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 Issuers will require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the
Paying Agent for the payment of principal, premium or Additional Interest, if any, or interest on
the Notes, and will notify the Trustee of any default by the Issuers 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 Issuers 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 Issuers or a
Subsidiary of the Company) will have no further liability for the money. If the Issuers or a
Subsidiary of the Company acts as Paying Agent, it will 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 Issuers, the Trustee will serve as Paying Agent for the
Notes.
Section 2.05 Holder Lists.
The Trustee will 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 Issuers will 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 and the Issuers 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 except as a
whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged
by the Issuers for Definitive Notes if:
(1) the Issuers deliver 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
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the Exchange Act and, in either case, a successor Depositary is not
appointed by the Issuers within 120 days after the date of such notice from the Depositary;
(2) the Issuers, at their option and subject to the procedures of the Depositary,
determine that the Global Notes (in whole but not in part) should be exchanged for
Definitive Notes and deliver a written notice to such effect to the Trustee; or
(3) there has occurred and is continuing an Event of Default with respect to the Notes.
Upon the occurrence of either of the preceding events in (1) or (2) above, Definitive Notes
shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may
be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every
Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion
thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and
delivered in the form of, and shall be, a Global Note. 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.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and
exchange of beneficial interests in the Global Notes will be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Transfers of beneficial
interests in the Global Notes also will require compliance with either subparagraph (1) or (2)
below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in
any Restricted Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend; provided, however, that
prior to the expiration of the Restricted Period, transfers of beneficial interests in the
Regulation S Global Note may not be made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an Initial Purchaser). Beneficial interests in any Unrestricted
Global Note may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders or instructions shall
be required to be delivered to the Registrar to effect the transfers described in this
Section 2.06(b)(1).
(2) 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)(1) above, the transferor of such beneficial interest must deliver to the
Registrar either:
(A) both:
(i) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged; and
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(ii) instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited with
such increase; or
(B) both:
(i) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged; and
(ii) instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in (1) above.
Upon consummation of an Exchange Offer by the Issuers in accordance with Section 2.06(f)
hereof, the requirements of this Section 2.06(b)(2) shall be deemed to have been satisfied upon
receipt by the Registrar of the instructions contained in the Letter of Transmittal delivered by
the Holder of such beneficial interests in the Restricted Global Notes. Upon satisfaction of all
of the requirements for transfer or exchange of beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall
adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(h) hereof.
(3) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial
interest in any Restricted Global Note may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.06(b)(2) above and the Registrar
receives the following:
(A) if the transferee will take delivery in the form of a beneficial interest
in the 144A Global Note, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form of a beneficial interest
in the Regulation S Global Note, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in item (2) thereof.
(4) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in
an Unrestricted
Global Note or transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with
the requirements of Section 2.06(b)(2) above and:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the holder of the beneficial
interest to be transferred, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal that it is not
(i) a Participating Broker-Dealer, (ii) a Person participating in the distribution
of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144)
of the Issuers or the Guarantors;
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(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a beneficial interest
in an Unrestricted Global Note, a certificate from such holder in the form
of Exhibit C hereto, including the certifications in item (1)(a) thereof; or
(ii) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests or
if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance with the Securities
Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above at a time when an
Unrestricted Global Note has not yet been issued, the Issuers shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to subparagraph (B) or (D) above.
Notwithstanding the provisions of the first sentence of this subparagraph (4), at the option
of the Issuers, beneficial interests in a Restricted Global Note shall automatically be exchanged
for beneficial interests in an Unrestricted Global Note upon the Issuers compliance in full with
the Depositarys Procedures for the Mandatory Exchange of Rule 144A Securities for Unrestricted
Securities or Procedures for the Mandatory Exchange of Regulation S Securities for Unrestricted
Securities, as applicable (or such replacement procedures as the Depositary shall put in place).
Upon such exchange of beneficial interests pursuant to this Section 2.06(b)(4), the Registrar shall
reflect on its books and records the date of such transfer and a decrease and increase in the
principal amount of the applicable Restricted
Global Note and the Unrestricted Global Note, respectively, equal to the principal amount of
beneficial interests transferred. Following any such transfer pursuant to this Section 2.06(b)(4)
of all of the beneficial interests in a Restricted Global Note to an Unrestricted Global Note, such
Restricted Global Note shall be cancelled.
Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to
Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global
Note.
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(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(1) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If
any holder of a beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for a Restricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB in accordance
with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such beneficial interest is being transferred pursuant to an exemption
from the registration requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to the Issuers or any of
their Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(F) if such beneficial interest is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the Issuers shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest in
a Restricted Global Note pursuant to this Section 2.06(c) shall be 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 Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c)(1) shall bear the Private Placement Legend and shall be subject to all restrictions on
transfer contained therein.
(2) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes.
A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial
interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a
Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if:
35
(A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (i) a Participating
Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes
or (iii) a Person who is an affiliate (as defined in Rule 144) of the Issuers or the
Guarantors;
(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for an Unrestricted
Definitive Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(b) thereof; or
(ii) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of an Unrestricted Definitive Note, a
certificate from such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests or
if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance with the Securities
Act.
(3) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes.
If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange
such beneficial interest for a Definitive Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction
of the conditions set forth in Section 2.06(b)(2) hereof, the Trustee will cause the
aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant
to Section 2.06(h) hereof, and the Issuers will execute and the Trustee will authenticate
and deliver to the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(3) will be registered in such name or names and in
such authorized denomination or denominations
as the holder of such beneficial interest requests through instructions to the
Registrar from or through the Depositary and the Participant or Indirect Participant. The
Trustee will deliver such Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial interest pursuant to
this Section 2.06(c)(3) will not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
36
(1) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If
any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a
Person who takes delivery thereof in the form of a beneficial interest in a Restricted
Global Note, then, upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note proposes to exchange such
Note for a beneficial interest in a Restricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the certifications in item (2)(b)
thereof;
(B) if such Restricted Definitive Note is being transferred to a QIB in
accordance with Rule 144A, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred to a Non-U.S.
Person in an offshore transaction in accordance with Rule 903 or Rule 904, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in accordance
with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to the Issuers or
any of the Companys Subsidiaries, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(b) thereof; or
(F) if such Restricted Definitive Note is being transferred pursuant to an
effective registration statement under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item (3)(c)
thereof,
the Trustee will cancel the Restricted Definitive Note, increase or cause to be increased the
aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global
Note, in the case of clause (B) above, the 144A Global Note, and in the case of clause (C) above,
the Regulation S Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.
A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in
an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
only if:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a Participating Broker-Dealer,
(ii) a Person participating in the distribution of the Exchange Notes or (iii) a
Person who is an affiliate (as defined in Rule 144) of the Issuers or the
Guarantors;
(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
37
(C) such transfer is effected by a Participating Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Definitive Notes proposes to exchange such
Notes for a beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(ii) if the Holder of such Definitive Notes proposes to transfer such
Notes to a Person who shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit B hereto, including the certifications in item
(4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests or
if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance with the Securities
Act.
Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(2),
the Trustee will cancel the Definitive Notes and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.
A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
at any time. Upon receipt of a request for such an exchange or transfer, the Trustee will
cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial interest is effected
pursuant to subparagraphs (2)(B), (2)(D) or (3) above at a time when an Unrestricted Global Note
has not yet been issued, the Issuers will issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee will authenticate one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so
transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder
of Definitive Notes and such Holders compliance with the provisions of this Section 2.06(e), the
Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration
of transfer
or exchange, the requesting Holder must present or surrender to the Registrar the Definitive
Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In
addition, the requesting Holder must provide any additional certifications, documents and
information, as applicable, required pursuant to the following provisions of this Section 2.06(e).
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(1) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted
Definitive Note may be transferred to and registered in the name of Persons who take
delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer will be made pursuant to Rule 144A, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule 904, then the
transferor must deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any other exemption from the
registration requirements of the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if applicable.
(2) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted
Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note
or transferred to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:
(A) (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (i) a Participating Broker-Dealer, (ii) a
Person participating in the distribution of the Exchange Notes or (iii) a Person who
is an affiliate (as defined in Rule 144) of the Issuers or the Guarantors;
(B) any such transfer is effected pursuant to the Shelf Registration Statement
in accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a Participating Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted Definitive Notes proposes to
exchange such Notes for an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto, including the certifications in
item (1)(d) thereof; or
(ii) if the Holder of such Restricted Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in the form
of an
Unrestricted Definitive Note, a certificate from such Holder in the
form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests, an Opinion
of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in
39
compliance with the Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in order to maintain compliance
with the Securities Act.
(3) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of
Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof
in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such
a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the
instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Issuers will issue and, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee will authenticate:
(1) one or more Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global Notes accepted for
exchange in the Exchange Offer by Persons that certify in the applicable Letters of
Transmittal that (A) they are not Participating Broker-Dealers, (B) they are not
participating in a distribution of the Exchange Notes and (C) they are not affiliates (as
defined in Rule 144) of the Issuers; and
(2) Unrestricted Definitive Notes in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Notes accepted for exchange in the Exchange
Offer by Persons that certify in the applicable Letters of Transmittal that (A) they are not
Participating Broker-Dealers, (B) they are not participating in a distribution of the
Exchange Notes and (C) they are not affiliates (as defined in Rule 144) of the Issuers.
Concurrently with the issuance of such Notes, the Trustee will cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and the Issuers will
execute and the Trustee will authenticate and deliver to the Persons designated by the Holders of
Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate principal amount.
(g) Legends. The following legends will appear on the face of all Global Notes and Definitive
Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions
of this Indenture.
(1) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global Note and each
Definitive Note (and all Notes issued in exchange therefor or substitution thereof)
shall bear the legend in substantially the following form:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE SECURITIES ACT), AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL
INTEREST HEREIN, THE ACQUIRER: (1)
REPRESENTS THAT: (A) IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A
QUALIFIED INSTITUTIONAL BUYER (WITHIN THE MEANING OF RULE 144A
UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT
DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT OR (B) IT IS NOT A
40
U.S.
PERSON (WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES
ACT), AND (2) AGREES FOR THE BENEFIT OF THE ISSUERS THAT IT SHALL
NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE OR ANY
BENEFICIAL INTEREST HEREIN, EXCEPT IN ACCORDANCE WITH THE SECURITIES
ACT AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES AND ONLY: (A) TO THE ISSUERS OR ANY OF THEIR SUBSIDIARIES,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE
UNDER THE SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D) IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 901 OF REGULATION S
UNDER THE SECURITIES ACT, OR (E) PURSUANT TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY
OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. PRIOR TO THE REGISTRATION OF ANY TRANSFER IN
ACCORDANCE WITH (2)(C) ABOVE OR (2)(D) ABOVE, A DULY COMPLETED AND
SIGNED CERTIFICATE (THE FORM OF WHICH MAY BE OBTAINED FROM THE
TRUSTEE) MUST BE DELIVERED TO THE TRUSTEE. PRIOR TO THE REGISTRATION
OF ANY TRANSFER IN ACCORDANCE WITH (2)(E) ABOVE, THE ISSUERS RESERVE
THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS,
CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN
ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN
COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY RULE
144 EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE
FOREGOING RESTRICTIONS.
(B) Notwithstanding the foregoing, any Global Note or Definitive Note issued
pursuant to subparagraphs (b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or
(f) of this Section 2.06 (and all Notes issued in exchange therefor or substitution
thereof) will not bear the Private Placement Legend.
(2) Global Note Legend. Each Global Note will bear a legend in substantially the
following form:
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 (1) THE TRUSTEE MAY
MAKE SUCH NOTATIONS HEREON AS MAY BE
41
REQUIRED PURSUANT TO SECTION
2.01 AND SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF
THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4)
THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH
THE PRIOR WRITTEN CONSENT OF THE ISSUERS.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (DTC), TO THE ISSUERS OR THEIR AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
(h) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests
in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note
has been redeemed, repurchased or canceled in whole and not in part, each such Global Note will be
returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any
time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or
transferred to a Person who will take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the principal amount of Notes represented by such
Global Note will be reduced accordingly and an endorsement will 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 will take delivery
thereof in the form of a beneficial interest in another Global Note, such other Global Note will be
increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the Issuers will execute and
the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an
Authentication Order in accordance with Section 2.02 hereof or at the Registrars request.
42
(2) No service charge will be made to a Holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but
the Issuers may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10,
3.06, 4.10, 4.14 and 9.05 hereof).
(3) The Registrar will not be required to register the transfer of or exchange of any
Note selected for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part.
(4) All Global Notes and Definitive Notes issued upon any registration of transfer or
exchange of Global Notes or Definitive Notes will be the valid obligations of the Issuers,
evidencing the same debt, and entitled to the same benefits under this Indenture, as the
Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(5) Neither the Registrar nor the Issuers will 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 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.
(6) Prior to due presentment for the registration of a transfer of any Note, the
Trustee, any Agent and the Issuers 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 Issuers shall be affected by notice to the contrary.
(7) The Trustee will authenticate Global Notes and Definitive Notes in accordance with
the provisions of Section 2.02 hereof.
(8) 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 Issuers and the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any Note, the Issuers will issue
and the Trustee, upon receipt of an Authentication Order, will authenticate a replacement Note if
the Trustees requirements are met. If required by the Trustee or the Issuers, an indemnity bond
must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Issuers to
protect the Issuers, the
43
Trustee, any Agent and any authenticating agent from any loss that any of
them may suffer if a Note is replaced. The Issuers may charge for their expenses in replacing a
Note.
Every replacement Note is an additional obligation of the Issuers and will 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 the provisions hereof, and those described
in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does
not cease to be outstanding because the Issuers or an Affiliate of the Issuers holds the Note;
however, Notes held by the Issuers or a Subsidiary of the Company shall not be deemed to be
outstanding for purposes of Section 3.07(a) hereof.
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 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 Issuers, a Subsidiary of the Company or an Affiliate of
any thereof) holds, on a redemption date or maturity date, money sufficient to pay Notes payable on
that date, then on and after that date such Notes will be deemed to be no longer outstanding and
will cease to accrue interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Issuers or any Guarantor, or by any Person
directly or indirectly controlling or controlled by or under direct or indirect common control with
the Issuers or any Guarantor, will be considered as though not outstanding, except that for the
purposes of determining whether the Trustee will be protected in relying on any such direction,
waiver or consent, only Notes that a Responsible Officer of the Trustee knows are so owned will be
so disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the Issuers may prepare and the
Trustee, upon receipt of an Authentication Order, will authenticate temporary Notes. Temporary
Notes will be substantially in the form of certificated Notes but may have variations that the
Issuers consider
appropriate for temporary Notes and as may be reasonably acceptable to the Trustee. Without
unreasonable delay, the Issuers will prepare and the Trustee will authenticate definitive Notes in
exchange for temporary Notes. Holders of temporary Notes will be entitled to all of the benefits
of this Indenture.
Section 2.11 Cancellation.
The Issuers at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent will forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and will dispose of such
canceled Notes in its customary manner (subject to the record retention requirement of the Exchange
Act). Certification of the
44
destruction of all canceled Notes will be delivered to the Issuers.
The Issuers may not issue new Notes to replace Notes that it has paid or that have been delivered
to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Issuers default in a payment of interest on the Notes, they will 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 Issuers will 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 Issuers will fix or cause to be fixed each such special record date and
payment date; provided that no such special record date may 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 Issuers (or, upon the written request of the Issuers, the Trustee in the name and at the
expense of the Issuers) will 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 2.13 CUSIP Numbers.
The Issuers in issuing the Notes may use CUSIP, ISIN or other similar numbers (if then
generally in use), and, if so, the Trustee shall use CUSIP, ISIN or other similar numbers in
notices of redemption as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Notes or as
contained in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not be affected by any
defect in or omission of such numbers. The Issuers will promptly notify the Trustee in writing of
any change in the CUSIP, ISIN or other similar numbers.
ARTICLE 3
REDEMPTION AND PREPAYMENT
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Issuers elect to redeem Notes pursuant to the optional redemption provisions of Section
3.07 hereof, they must furnish to the Trustee, at least 30 days but not more than 60 days before a
redemption date, an Officers Certificate setting forth:
(1) | the clause of this Indenture pursuant to which the redemption shall occur; | |
(2) | the redemption date; | |
(3) | the principal amount of Notes to be redeemed; | |
(4) | the redemption price; and | |
(5) | applicable CUSIP Numbers. |
Section 3.02 Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed at any time, the Trustee will select Notes
for redemption or purchase as follows:
45
(1) if the Notes are listed on any national securities exchange, in compliance with the
requirements of the principal national securities exchange on which the Notes are listed; or
(2) if the Notes are not listed on any national securities exchange, on a pro rata
basis (or, in the case of Global Notes, based on DTCs method that most nearly approximates
a pro rata selection).
In the event of partial redemption or purchase by lot, the particular Notes to be redeemed or
purchased will be selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the redemption date by the Trustee from the outstanding Notes not previously called
for redemption.
The Trustee will promptly notify the Company in writing of the Notes selected for redemption
and, in the case of any Note selected for partial redemption or purchase, the principal amount
thereof to be redeemed. Notes and portions of Notes selected will be in amounts of $2,000 or whole
multiples of $1,000 in excess of $2,000; provided that no Notes of $2,000 or less shall be redeemed
in part. Except as provided in the preceding sentence, provisions of this Indenture that apply to
Notes called for redemption also apply to portions of Notes called for redemption.
Section 3.03 Notice of Redemption.
(a) Notices of redemption will be mailed by first class mail at least 30 but not more than 60
days before the redemption date to each Holder of Notes to be redeemed at its registered address,
except that redemption notices may be mailed more than 60 days prior to a redemption date if the
notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of
this Indenture pursuant to Articles 8 or 11 hereof.
The notice will identify the Notes (including CUSIP Numbers) to be redeemed and will state:
(1) the redemption date;
(2) the redemption price;
(3) 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 will be issued upon
cancellation of the original Note;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price;
(6) that, unless the Issuers default in making such redemption payment, interest on
Notes called for redemption ceases to accrue on and after the redemption date;
(7) the paragraph of the Notes and/or Section of this Indenture pursuant to which the
Notes called for redemption are being redeemed;
(8) 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; and
46
(9) if in connection with any conditional notice of redemption pursuant to Section
3.07(e) hereof, any condition to the related redemption.
At the Issuers request, the Trustee will give the notice of redemption in the Issuers name
and at their expense; provided, however, that the Company has 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.
Notice of any redemption of Notes may, at the Companys discretion, be subject to one or more
conditions precedent, including, but not limited to, the completion of a related Equity Offering
and, in the case of a redemption with the proceeds of an Equity Offering, may be given prior to the
completion thereof. Notes called for redemption become due on the date fixed for redemption unless
redemption is conditioned upon the closing of a specified transaction.
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,
except as provided for in Section 3.03 and 3.07(e) hereof. The notice, if mailed in accordance
with Section 3.03 hereof, shall be conclusively presumed to have been given, whether or not the
Holder receives such notice. In any case, failure to give such notice by mail or any defect in the
notice to the Holder designated for redemption in whole or in part shall not affect the validity of
the proceedings for the redemption of any other Note.
Section 3.05 Deposit of Redemption Price.
One Business Day prior to the redemption date, the Issuers will deposit with the Trustee or
with the Paying Agent money sufficient to pay the redemption price of and accrued interest and
Additional Interest, if any, on all Notes to be redeemed on that date. The Trustee or the Paying
Agent will promptly return to the Issuers any money deposited with the Trustee or the Paying Agent
by the Issuers in excess of the amounts necessary to pay the redemption price of, and accrued
interest and Additional Interest, if any, on, all Notes to be redeemed.
If the Issuers comply with the provisions of the preceding paragraph, on and after the
redemption date, interest will cease to accrue on the Notes or the portions of Notes called for
redemption. If a Note is redeemed on or after an interest record date but on or prior to the
related interest payment date, then any accrued and unpaid interest shall be paid to the Person in
whose name such Note was registered at the close of business on such record date. If any Note
called for redemption is not so paid upon surrender for redemption because of the failure of the
Issuers to comply with the preceding paragraph, interest shall be paid on the unpaid principal,
from the redemption date until such principal is paid, and to the extent lawful on any interest not
paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01
hereof.
Section 3.06 Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Issuers will issue and, upon receipt of
an Authentication Order, the Trustee will authenticate for the Holder at the expense of the Issuers
a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note
surrendered, provided that each new Note will be in a principal amount of $2,000 or an integral
multiple of $1,000 in excess of $2,000. It is understood that, notwithstanding anything in this
Indenture to the contrary, only an
47
Authentication Order and not an Opinion of Counsel or Officers
Certificate is required for the Trustee to authenticate such new Note.
Section 3.07 Optional Redemption.
(a) On any one or more occasions prior to April 1, 2014, the Issuers may redeem up to 35% of
the aggregate principal amount of Notes issued under this Indenture (including any Additional Notes
issued after the Issue Date) at a redemption price equal to 107.75% of the principal amount, plus
accrued and unpaid interest and Additional Interest, if any, on the Notes redeemed to, but not
including, the redemption date (subject to the right of Holders on the relevant record date to
receive interest due on the relevant interest payment date), with the net cash proceeds of one or
more Equity Offerings; provided that:
(1) at least 50% of the aggregate principal amount of Notes originally issued under
this Indenture (excluding Notes held by the Issuers and the Companys Subsidiaries) remains
outstanding immediately after the occurrence of such redemption; and
(2) the redemption occurs within 180 days of the date of the closing of such Equity
Offering.
(b) On any one or more occasions after April 1, 2015, the Issuers may redeem all or a part of
the Notes 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 and Additional
Interest, if any, on the Notes redeemed, to, but not including, the applicable redemption date, if
redeemed during the 12-month period beginning on April 1 of the years indicated below (subject to
the rights of Holders of Notes on the relevant record date to receive interest due on the relevant
interest payment date):
Year | Percentage | |||
2015 |
103.8750 | % | ||
2016 |
101.9375 | % | ||
2017 and thereafter |
100.0000 | % |
Unless the Issuers default in the payment of the redemption price, interest will cease to
accrue on the Notes or portions thereof called for redemption on the applicable redemption date.
(c) On any one or more occasions prior to April 1, 2015, the Issuers may also redeem all or a
part of the Notes, upon not less than 30 nor more than 60 days prior notice mailed by first-class
mail to each Holders registered address, at a redemption price equal to 100% of the aggregate
principal amount thereof plus the Applicable Premium as of, and accrued and unpaid interest and
Additional Interest, if any, on the Notes to be redeemed to, but not including, the redemption date
(subject to the rights of Holders on the relevant record date to receive interest due on the
relevant interest payment date).
(d) Except pursuant to this Section 3.07 above, the Notes will not be redeemable at the
Issuers option prior to April 1, 2015. The Issuers will not, however, be prohibited from
acquiring the Notes by means other than a redemption, whether pursuant to a tender offer, open
market purchase or otherwise.
(e) Any notice of any redemption pursuant to this Section 3.07 may be given prior to the
redemption thereof, and any such redemption or notice may, at the Issuers discretion, be subject
to one or
48
more conditions precedent, including, but not limited to, completion of an Equity
Offering or other corporate transaction.
(f) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
Section 3.08 Mandatory Redemption.
The Issuers will not be required to make mandatory redemption or sinking fund payments with
respect to the Notes.
ARTICLE 4
COVENANTS
COVENANTS
Section 4.01 Payment of Notes.
The Issuers will pay or cause to be paid the principal of, premium, if any, and interest and
Additional Interest, if any, on, the Notes on the dates and in the manner provided in the Notes.
Principal, premium, if any, and interest and Additional Interest, if any will be considered paid on
the date due if the Paying Agent, if other than the Company or a Subsidiary of the Company, holds
as of 10:00 a.m. Eastern Time on the due date money deposited by the Issuers in immediately available funds and
designated for and sufficient to pay all principal of, premium, if any, and interest and Additional
Interest, if any, then due. The Issuers will pay all Additional Interest, if any, in the same
manner on the dates and in the amounts set forth in the Registration Rights Agreement.
The Issuers will pay interest on overdue principal at the rate specified therefor in the
Notes, and it shall pay interest on overdue installments of interest at the same rate borne by the
Notes to the extent lawful.
Section 4.02 Maintenance of Office or Agency.
The Issuers will 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 Issuers in respect of the Notes and this Indenture may be
served. The Issuers will 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 Issuers fail to maintain any such
required office or agency or fails 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 Issuers may also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or rescission will in any
manner relieve the Issuers of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Issuers will 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 Issuers hereby designate the Corporate Trust Office of the Trustee as one such office or
agency of the Issuers in accordance with Section 2.03 hereof.
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Section 4.03 Reports.
(a) Notwithstanding that the Company may not be subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on
forms provided for such annual and quarterly reporting pursuant to rules and regulations
promulgated by the SEC, the Company will file with the SEC, and provide the Trustee and Holders
with copies thereof, without cost to each Holder:
(1) within 90 days after the end of each fiscal year (or such longer period as may be
permitted by the SEC if the Company were then subject to such SEC reporting requirements as
a non-accelerated filer), annual reports on Form 10-K (or any successor or comparable form)
containing the information required to be contained therein (or required in such successor
or comparable form) (but only to the extent similar information is included in the Offering
Memorandum) including, without limitation, a managements discussion and analysis of
financial information and a report by the Companys certified independent accountants;
(2) within 45 days after the end of each of the first three fiscal quarters of each
fiscal year (or such longer period as may be permitted by the SEC if the Company were then
subject to such SEC reporting requirements as a non-accelerated filer), quarterly reports on
Form 10-Q containing the information required to be contained therein (or any successor or
comparable form) (but only to the extent similar information is included in the Offering
Memorandum) including, without limitation, a managements discussion and analysis of
financial information; and
(3) within the time period specified for filing current reports on Form 8-K by the SEC,
such other current reports on Form 8-K (or any successor or comparable form) containing
substantially all the information required to be contained therein (or any successor or
comparable form).
Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustees receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Companys compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers Certificates).
(b) In the event that any direct or indirect parent company of the Company becomes a guarantor
of the Notes, the Company may satisfy its obligations under this Section 4.03 with respect to
financial information relating to the Company by furnishing financial information relating to such
parent company; provided that the same be accompanied by consolidated information that explains in
reasonable detail the differences between the information relating to such parent, on the one hand,
and the information relating to the Company and its Restricted Subsidiaries on a standalone basis,
on the other hand.
(c) For so long as any Notes are outstanding, the Company will furnish to Holders and to
securities analysts and prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Notwithstanding the foregoing, the Company will be deemed to have furnished each of the
reports referred to above to the Trustee and the Holders if the Company or any direct or indirect
parent of the Company has filed such reports with the SEC via the EDGAR (or any successor) filing
system and such reports are publicly available.
50
Section 4.04 Compliance Certificate.
(a) The Company shall deliver to the Trustee within 120 days after the end of each fiscal year
of the Company (beginning with the fiscal year ended December 31, 2011) an Officers Certificate
stating that in the course of the performance by the signers of their duties as Officers of the
Company they would normally have knowledge of any Default and whether or not the signers know of
any Default that occurred during such period. If they do, the certificate shall describe the
Default, its status and what action the Issuers are taking or propose to take with respect thereto.
The Issuers also shall comply with Section 314(a)(4) of the TIA.
(b) So long as any of the Notes are outstanding, the Company will deliver to the Trustee,
forthwith 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 Issuers are taking or
propose to take with respect thereto.
Section 4.05 Intentionally Omitted.
Section 4.06 Intentionally Omitted.
Section 4.07 Restricted Payments.
(a)
(1) The Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly:
(A) declare or pay any dividend or make any other payment or distribution on
account of the Companys 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 Companys or any of its Restricted Subsidiaries
Equity Interests in their capacity as such (other than dividends or distributions
payable in Equity Interests (other than Disqualified Stock) of the Company and other
than dividends or distributions payable to the Company or a Restricted Subsidiary of
the Company);
(B) 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 direct or indirect parent of the
Company;
(C) make any payment on or with respect to, or purchase, redeem, defease or
otherwise acquire or retire for value, any Indebtedness of the Issuers or any
Guarantor that is contractually subordinated to the Notes or to any Note Guarantee
(excluding (x) any intercompany Indebtedness between or among the Company and any of
its Restricted Subsidiaries or (y) the purchase, repurchase or other acquisition of
Indebtedness that is contractually subordinated to the Notes or to any Note
Guarantee, as the case may be, purchased in anticipation of satisfying a sinking
fund obligation, principal installment or final maturity, in each case due within
one year of the date of purchase, repurchase or acquisition), except a payment of
interest or principal at the Stated Maturity thereof; or
51
(D) make any Restricted Investment;
(all such payments and other actions set forth in these clauses (A) through (D) above being
collectively referred to as Restricted Payments), unless,
(2) at the time of and after giving effect to such Restricted Payment,
(A) no Default (except a Reporting Failure) or Event of Default has occurred
and is continuing or would occur as a consequence of such Restricted Payment and
(B) either:
(i) if the Fixed Charge Coverage Ratio for the Companys most recently
ended four full fiscal quarters for which internal financial statements are
available at the time of such Restricted Payment (the Trailing Four
Quarters) is not less than 1.75 to 1.0, such Restricted Payment, together
with the aggregate amount of all other Restricted Payments made by the
Company and its Restricted Subsidiaries with respect to the quarter for
which such Restricted Payment is made (excluding Restricted Payments
permitted by clauses (2) through (17) of Section 4.07(b) hereof), is less
than the sum, without duplication, of:
(a) Available Cash from Operating Surplus as of the end of the
immediately preceding quarter for which internal financial statements
are available at the time of such Restricted Payment; plus
(b) 100% of the aggregate net proceeds, including cash and the
Fair Market Value of property other than cash, received by the
Company since the Issue Date (x) as a contribution to its common
equity capital or (y) from the issue or sale of Equity Interests of
the Company or any direct or indirect parent company of the Company
(other than Disqualified Stock, Designated Preferred Stock, Excluded
Contributions or Cash Contributions) or from the issue or sale of
convertible or exchangeable Disqualified Stock or convertible or
exchangeable debt securities 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
(c) to the extent that any Restricted Investment that was made
after the Issue Date is sold for cash or otherwise liquidated or
repaid for cash, 100% of the aggregate amount received in cash and
the Fair Market Value of property other than cash received; plus
(d) the net reduction in Restricted Investments resulting from
dividends, repayments of loans or advances, or other transfers of
assets in each case to the Company or any of its Restricted
Subsidiaries from any Person (including, without limitation,
Unrestricted Subsidiaries) or from redesignations of Unrestricted
Subsidiaries as Restricted Subsidiaries, or from mergers or
consolidations with or into, or transfers of assets to, the Company
or a Restricted Subsidiary of the Company, 100% of the Fair Market
Value of the Companys Investment in such Subsidiary as of the date
of such redesignation, combination or
52
transfer, to the extent such
amounts have not been included in Available Cash from Operating
Surplus for any period commencing on or after the Issue Date (items
(b), (c) and (d) being referred to as Incremental Funds); minus
(e) the aggregate amount of Incremental Funds previously
expended pursuant to this clause (a)(2)(B)(i) and clause
(a)(2)(B)(ii) below; or
(ii) if the Fixed Charge Coverage Ratio for the Trailing Four Quarters
is less than 1.75 to 1.0, such Restricted Payment, together with the
aggregate amount of all other Restricted Payments made by the Company and
its Restricted Subsidiaries with respect to the quarter for which such
Restricted Payment is made (excluding Restricted Payments permitted by
clauses (2) through (17) of Section 4.07(b) hereof), is less than the sum,
without duplication, of:
(a) $95.0 million less the aggregate amount of all prior
Restricted Payments made by the Company and its Restricted
Subsidiaries pursuant to this clause (a)(2)(B)(ii)(a) since the Issue
Date; plus
(b) Incremental Funds to the extent not previously expended
pursuant to this clause (a)(2)(B)(ii) or clause (a)(2)(B)(i) above.
(b) The provisions of Section 4.07(a) hereof will not prohibit:
(1) the payment of any dividend or distribution or the consummation of any redemption
within 60 days after the date of declaration of the dividend or distribution or giving of
the redemption notice, as the case may be, if, at the date of declaration or notice, the
dividend, distribution or redemption payment would have complied with the provisions of this
Indenture;
(2) the making of any Restricted Payment in exchange for, or out of the net cash
proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company)
of, Equity Interests of the Company or any direct or indirect parent company of the Company
(other than Disqualified Stock) or from the substantially concurrent contribution of common
equity capital to the Company; provided that the amount of any such net cash proceeds that
are utilized for any such Restricted Payment will be excluded from clause (2)(B)(i)(b) of
Section 4.07(a) hereof or any portion of Incremental Funds resulting from clause
(2)(B)(i)(b) of Section 4.07(a) hereof;
(3) the repurchase, redemption, defeasance or other acquisition or retirement for value
of Indebtedness of the Company or any Restricted Subsidiary of the Company that is
contractually subordinated to the Notes or to any Note Guarantee with the net cash proceeds
from a substantially concurrent incurrence of Permitted Refinancing Indebtedness;
(4) the payment of any dividend (or, in the case of any partnership or limited
liability company, any similar distribution) by a Restricted Subsidiary of the Company to
the holders of its Equity Interests on a pro rata basis;
53
(5) the purchase, redemption or other acquisition or retirement (or dividends or
distributions to any direct or indirect parent company of the Company to finance any such
purchase, redemption or other acquisition or retirement) for value of any Equity Interests
of the Company or any Restricted Subsidiary of the Company or any direct or indirect parent
company of the Company held by any current or former officer, director, consultant or
employee of the Company or any of its Restricted Subsidiaries or any direct or indirect
parent company of the Company pursuant to any equity subscription agreement, shareholders
or members agreement or equity option agreement or other employee benefit plan or to
satisfy obligations under any Equity Interest appreciation rights or option plan or similar
arrangement; provided, however, that the aggregate price paid for all such purchased,
redeemed, acquired or retired Equity Interests
may not exceed $10.0 million in any calendar year (with unused amounts in any calendar
year being permitted to be carried over for the two succeeding calendar years); provided
further, that the amount in any calendar year may be increased by an amount not to exceed:
(A) the cash proceeds (other than Excluded Contributions and Cash
Contributions) received by the Company or any of its Restricted Subsidiaries from
the sale of Equity Interests (other than Disqualified Stock and Designated Preferred
Stock) of the Company or any direct or indirect parent company of the Company (to
the extent contributed to the Company) to members of management, directors or
consultants of the Company and its Restricted Subsidiaries or any direct or indirect
parent company of the Company that occurs after the Issue Date; provided that the
amount of such cash proceeds utilized for any such repurchase, retirement, other
acquisition, or dividend or distribution will not increase the amount available for
Restricted Payments under clause (2)(B)(i) of Section 4.07(a) hereof or any portion
of Incremental Funds resulting from clause (2)(B)(i) of Section 4.07(a) hereof or
clause (2) of Section 4.07(b) hereof; plus
(B) the cash proceeds of key man life insurance policies received by the
Company or any direct or indirect parent company of the Company (to the extent
contributed to the Company) and its Restricted Subsidiaries after the Issue Date;
provided that the Company may elect to apply all or any portion of the aggregate increase
contemplated by clauses (A) and (B) above in any single calendar year; or
(6) the purchase, repurchase, redemption or other acquisition or retirement for value
of Equity Interests deemed to occur upon the exercise of options, warrants, incentives,
rights to acquire Equity Interests or other convertible securities if such Equity Interests
represent a portion of the exercise or exchange price thereof, and any purchase, repurchase,
redemption or other acquisition or retirement for value of Equity Interests made in lieu of
withholding taxes in connection with any exercise or exchange of options, warrants,
incentives or rights to acquire Equity Interests;
(7) the declaration and payment of regularly scheduled or accrued dividends or
distributions (A) with respect to preferred units of the Company outstanding on the Issue
Date or issued as an in-kind distribution pursuant to the Partnership Agreement and (B) to
holders of any class or series of Disqualified Stock of the Company or any Restricted
Subsidiary of the Company issued on or after the Issue Date in accordance with the Fixed
Charge Coverage Ratio test described under Section 4.09(a) hereof;
(8) Permitted Payments to Parent;
54
(9) the declaration and payment of dividends or distributions to holders of any class
or series of Designated Preferred Stock (other than Disqualified Stock) issued after the
Issue Date and the declaration and payment of dividends to any direct or indirect parent
company of the Company, the proceeds of which will be used to fund the payment of dividends
or distributions to holders of any class or series of Designated Preferred Stock (other than
Disqualified Stock) of any direct or indirect parent company of the Company issued after the
Issue Date; provided, however, that (A) the Company would, at the time of such issuance of
Designated Preferred Stock and after giving pro forma effect to such issuance (and the
payment of dividends or distributions thereunder) 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(a) and (B) the aggregate amount of
dividends declared and paid pursuant to this clause (9) does not exceed the net cash
proceeds actually received by the Company (including any such proceeds contributed to the
Company by any direct or indirect parent company of the Company) from any such sale of
Designated Preferred Stock (other than Disqualified Stock) issued after the Issue Date;
(10) any payments made in connection with the consummation of the offering of the
Initial Notes;
(11) Restricted Payments in an aggregate amount equal to the amount of Excluded
Contributions previously received by the Company and its Restricted Subsidiaries;
(12) the satisfaction of change of control obligations and asset sale obligations once
the Company has fulfilled its obligations under this Indenture with respect to a Change of
Control or an Asset Sale;
(13) the repayment of intercompany debt that was permitted to be incurred under this
Indenture;
(14) cash dividends or other distributions on the Companys Capital Stock used to, or
the making of loans to any direct or indirect parent of the Company to, fund the payment of
fees and expenses owed by the Company or its Restricted Subsidiaries to Affiliates, to the
extent permitted by Section 4.11 hereof (other than Section 4.11(b)(6) hereof);
(15) the payment of dividends or distributions on the Companys common equity (or the
payment of dividends or distributions to a direct or indirect parent company of the Company
to fund the payment by such parent company of dividends or distributions on its common
equity) of up to 6.0% per calendar year of the net proceeds received by the Company from any
public Equity Offering or contributed to the Company by a direct or indirect parent company
of the Company from any public Equity Offering; provided that the amount of any such net
cash proceeds that are utilized for any such Restricted Payment will be excluded from clause
(2)(B)(i)(b) of Section 4.07(a) hereof or any portion of Incremental Funds resulting from
clause (2)(B)(i)(b) of Section 4.07(a); and
(16) the distribution, as a dividend or otherwise, of shares of Capital Stock of, or
Indebtedness owed to the Company or a Restricted Subsidiary of the Company by, Unrestricted
Subsidiaries; and
(17) other Restricted Payments in an aggregate amount not to exceed $10.0 million since
the Issue Date;
55
provided, however, that at the time of, and after giving effect to, any Restricted Payment
permitted under clauses (9) or (15) of this Section 4.07(b), no Default or Event of Default shall
have occurred and be continuing or would occur as a consequence thereof.
(c) The amount of all Restricted Payments (other than cash) will be the Fair Market Value on
the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or
issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment. For purposes of determining compliance with this Section 4.07, in the event that a
Restricted Payment meets the criteria of more than one of the categories of Restricted Payments
described in clauses (1) through (17) of Section 4.07(b) hereof, or is permitted pursuant to
Section 4.07(a) hereof, the Company will be entitled to classify such Restricted Payment (or
portion thereof) on the date made or later reclassify such
Restricted Payment (or portion thereof) in any manner that complies with this Section 4.07.
For the avoidance of doubt, in no event will limited partner interests of the Company issued in
kind as a distribution pursuant to the Partnership Agreement be considered to be a Restricted
Payment.
Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries.
(a) The Company will not, and will not permit any of its Restricted Subsidiaries that is not a
Guarantor to, directly or indirectly, create or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any Restricted Subsidiary that is not a Guarantor to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company
or any of its Restricted Subsidiaries, or with respect to any other interest or
participation in, or measured by, its profits, or pay any Indebtedness owed to the Company
or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Company or any of
its Restricted Subsidiaries.
(b) However, the restrictions in Section 4.08(a) hereof will not apply to encumbrances or
restrictions existing under or by reason of:
(1) agreements governing Indebtedness outstanding on the Issue Date, the Revolving
Credit Facility and other Credit Facilities in effect on the Issue Date and any amendments,
restatements, modifications, renewals, supplements, refundings, replacements or refinancings
of those agreements; provided that the amendments, restatements, modifications, renewals,
supplements, refundings, replacements or refinancings are not materially more restrictive,
taken as a whole, with respect to such dividend and other payment restrictions than those
contained in those agreements on the Issue Date;
(2) this Indenture, the Notes and the Note Guarantees (and any Additional Notes and
related guarantees under this Indenture);
(3) applicable law, rule, regulation, order, approval, license, permit or similar
restriction;
(4) any instrument governing Indebtedness or Capital Stock of a Person acquired by the
Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition
(except to the extent such Indebtedness or Capital Stock was incurred in connection with or
in
56
contemplation of such acquisition), which encumbrance or restriction is not applicable to
any Person, or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired; provided that, in the case of Indebtedness,
such Indebtedness was permitted by the terms of this Indenture to be incurred;
(5) customary non-assignment provisions or subletting restrictions in contracts, leases
and licenses entered into in the ordinary course of business;
(6) purchase money obligations for property (including Capital Stock) acquired in the
ordinary course of business and Capital Lease Obligations that impose restrictions on the
property purchased or leased of the nature described in Section 4.08(a)(3) hereof;
(7) any agreement for the sale or other disposition of the Capital Stock or assets of a
Restricted Subsidiary of the Company that restricts distributions by that Restricted
Subsidiary pending closing of the sale or other disposition;
(8) Permitted Refinancing Indebtedness; provided that the restrictions contained in the
agreements governing such Permitted Refinancing Indebtedness are not materially more
restrictive, taken as a whole, than those contained in the agreements governing the
Indebtedness being refinanced;
(9) Liens permitted to be incurred under Section 4.12 hereof that limit the right of
the debtor to dispose of the assets subject to such Liens;
(10) provisions limiting the disposition or distribution of assets or property or
transfer of Capital Stock in joint venture agreements, asset sale agreements, sale-leaseback
agreements, stock sale agreements, limited liability company organizational documents, and
other similar agreements entered into in the ordinary course of business, consistent with
past practice or with the approval of the Companys Board of Directors, which limitation is
applicable only to the assets, property or Capital Stock that are the subject of such
agreements;
(11) restrictions on cash, Cash Equivalents, Marketable Securities or other deposits or
net worth imposed by customers or lessors under contracts or leases entered into in the
ordinary course of business;
(12) other Indebtedness of Restricted Subsidiaries that are non-Guarantors that is
incurred subsequent to the Issue Date pursuant to Section 4.09 hereof;
(13) encumbrances on property that exist at the time the property was acquired by the
Company or a Restricted Subsidiary of the Company;
(14) contractual encumbrances or restrictions in effect on the Issue Date and any
amendments, restatements, modifications, renewals, supplements, refundings, replacements or
refinancings of those agreements; provided that the amendments, restatements, modifications,
renewals, supplements, refundings, replacements or refinancings are not materially more
restrictive, taken as a whole, with respect to such dividend and other payment restrictions
than those contained in those agreements on the Issue Date;
(15) any encumbrance or restriction with respect to an Unrestricted Subsidiary pursuant
to or by reason of an agreement that the Unrestricted Subsidiary is a party to or entered
into before the date on which such Unrestricted Subsidiary became a Restricted Subsidiary;
57
provided that such agreement was not entered into in anticipation of the Unrestricted
Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not
extend to any assets or property of the Company or any other Restricted Subsidiary other
than the assets and property of such Unrestricted Subsidiary;
(16) any encumbrance or restriction contained in the terms of any Indebtedness or any
agreement pursuant to which such Indebtedness was incurred if either (x) the encumbrance or
restriction applies only in the event of a payment default or a default with respect to a
financial
covenant in such Indebtedness or agreement or (y) the Company determines that any such
encumbrance or restriction will not materially affect the Companys ability to make
principal or interest payments on the Notes, as determined in good faith by the Board of
Directors of the Company, whose determination shall be conclusive;
(17) any encumbrances or restrictions imposed by any amendments or refinancings of the
contracts, instruments or obligations referred to above in clauses (1) through (16);
provided that such amendments or refinancings are not materially more restrictive, taken as
a whole, than such encumbrances and restrictions prior to such amendment or refinancing; and
(18) provisions with respect to the receipt of a rebate on an operating lease until all
obligations due to a lessor on other operating leases are satisfied or other customary
restrictions in respect of assets or contract rights acquired by a Restricted Subsidiary of
the Company in connection with a sale and leaseback transaction.
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Equity.
(a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to (collectively, incur) any Indebtedness
(including Acquired Debt), and the Company will not issue any Disqualified Stock and will not
permit any of its Restricted Subsidiaries to issue any shares of preferred equity; provided,
however, that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified
Stock, and the Company or any other Restricted Subsidiary may incur Indebtedness (including
Acquired Debt) or issue preferred equity, if on the date thereof the Fixed Charge Coverage Ratio
for the Companys most recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on which such additional Indebtedness is
incurred or such Disqualified Stock or such preferred equity is issued, as the case may be, would
have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application
of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the
Disqualified Stock or the preferred equity had been issued, as the case may be, at the beginning of
such four-quarter period.
(b) The provisions of Section 4.09(a) hereof will not prohibit the incurrence of any of the
following items of Indebtedness (collectively, Permitted Debt):
(1) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
and letters of credit and bankers acceptances under Credit Facilities in an aggregate
principal amount at any one time outstanding under this clause (1) (with letters of credit
being deemed to have a principal amount equal to the maximum potential liability of the
Company and its Restricted Subsidiaries thereunder) not to exceed the greater of (A) $500.0
million and (B) the sum of (i) $350.0 million and (ii) 30.0% of Consolidated Net Tangible
Assets;
58
(2) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
to the extent outstanding on the Issue Date;
(3) the incurrence by the Company or any of its Restricted Subsidiaries (including any
future Guarantor) of Indebtedness represented by the Notes and the related Note Guarantees
to be issued on the Issue Date and the Exchange Notes and the related exchange guarantees to
be issued pursuant to the Registration Rights Agreement;
(4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
represented by Capital Lease Obligations, mortgage financings, industrial revenue bonds,
purchase money obligations or other Indebtedness or preferred equity, or synthetic lease
obligations, in each case, incurred for the purpose of financing all or any part of the
purchase price or cost of design, development, construction, installation or improvement of
property (real or personal and including Capital Stock), plant or equipment used in the
business of the Company or any of its Restricted Subsidiaries (in each case, whether through
the direct purchase of such assets or the Equity Interests of any Person owning such
assets), in an aggregate principal amount, including all Permitted Refinancing Indebtedness
incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness
incurred pursuant to this clause (4), not to exceed the greater of (A) $40.0 million and (B)
5.0% of Consolidated Net Tangible Assets as of the date of such incurrence;
(5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew,
refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany
Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a)
hereof or clauses (2), (3), (4), (5), (12), (13), (15) or (16) of this Section 4.09(b);
(6) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany
Indebtedness and cash management pooling obligations and arrangements between or among the
Company and any of its Restricted Subsidiaries; provided, however, that:
(A) if the Company or any Guarantor is the obligor on such Indebtedness and the
payee is not the Company or a Guarantor, such Indebtedness must be unsecured and
expressly subordinated to the prior payment in full in cash of all Obligations then
due with respect to the Notes, in the case of the Issuers, or the Note Guarantee, in
the case of a Guarantor; and
(B) (i) any subsequent issuance or transfer of Equity Interests that results in
any such Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary of the Company and (ii) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a Restricted Subsidiary
of the Company, will be deemed, in each case, to constitute an incurrence of such
Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that
was not permitted by this clause (6);
(7) the issuance by any of the Companys Restricted Subsidiaries to the Company or to
any of its Restricted Subsidiaries of shares of preferred equity; provided, however, that:
(A) any subsequent issuance or transfer of Equity Interests that results in any
such preferred equity being held by a Person other than the Company or a Restricted
Subsidiary of the Company, and
59
(B) any sale or other transfer of any such preferred equity to a Person that is
not either the Company or a Restricted Subsidiary of the
Company,
will be deemed, in each case, to constitute an issuance of such preferred equity by such
Restricted Subsidiary that was not permitted by this clause (7);
(8) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging
Obligations and Bank Product Obligations other than for speculative purposes;
(9) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness
and cash management pooling obligations and arrangements of the Company or a Restricted
Subsidiary of the Company; provided that if the Indebtedness being guaranteed is
subordinated to or pari passu with the Notes, then the Guarantee shall be subordinated or
pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(10) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness in respect of workers compensation claims, payment obligations in connection
with health or other types of social security benefits, unemployment or other insurance or
self-insurance obligations, reclamation, statutory obligations, bankers acceptances, bid,
performance, surety or similar bonds and letters of credit or completion or performance
guarantees (including without limitation, performance guarantees pursuant to supply
agreements or equipment leases), or other similar obligations in the ordinary course of
business or consistent with past practice;
(11) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently drawn against insufficient funds;
(12) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness, Disqualified Stock or preferred equity of the Company or any Restricted
Subsidiary of the Company incurred or issued to finance an acquisition or of Persons that
are acquired by the Company or any of its Restricted Subsidiaries or merged into a
Restricted Subsidiary of the Company in accordance with the terms of this Indenture;
provided, however, that for any such Indebtedness outstanding under this clause (12) in
excess of $40.0 million, including all Permitted Refinancing Indebtedness incurred to renew,
refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this
clause (12), after giving effect to such acquisition and the incurrence of such
Indebtedness, Disqualified Stock and preferred equity either:
(A) 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); or
(B) the Fixed Charge Coverage Ratio would not be less than immediately prior to
such acquisition;
(13) the incurrence by Foreign Subsidiaries of the Company of Indebtedness in an
aggregate principal amount at any time outstanding pursuant to this clause (13), including
all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace,
defease or discharge any Indebtedness incurred pursuant to this clause (13), not to exceed
10.0% of the total assets of the Foreign Subsidiaries of the Company as shown on the most
recent balance sheet of the Company;
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(14) the incurrence of Indebtedness arising from agreements of the Company or a
Restricted Subsidiary of the Company providing for indemnification, adjustment of purchase
price, earn outs, or similar obligations, in each case, incurred or assumed in connection
with the disposition or acquisition of any business, assets or a Subsidiary in accordance
with the terms of this Indenture, other than guarantees of Indebtedness incurred or assumed
by any Person
acquiring all or any portion of such business, assets or Subsidiary for the purpose of
financing such acquisition;
(15) Contribution Indebtedness; and
(16) the incurrence by the Company or any of its Restricted Subsidiaries of additional
Indebtedness or the issuance of Disqualified Stock or preferred equity in an aggregate
principal amount (or accreted value, as applicable) or having an aggregate liquidation
preference, including all Permitted Refinancing Indebtedness incurred to renew, refund,
refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause
(16), not to exceed the greater of (A) $40.0 million and (B) 5.0% of Consolidated Net
Tangible Assets as of the date of such incurrence (it being understood that any
Indebtedness, Disqualified Stock or preferred equity incurred pursuant to this clause (16)
shall cease to be deemed incurred or outstanding for purposes of this Section 4.09 from and
after the date on which the Company could have incurred such Indebtedness or Disqualified
Stock or preferred equity under Section 4.09(a) without reliance upon this clause (16)).
The Issuers will not incur, and the Company will not permit any Guarantor to incur, any
Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to
any other Indebtedness of the Issuers or such Guarantor unless such Indebtedness is also
contractually subordinated in right of payment to the Notes and the applicable Note Guarantee on
substantially identical terms; provided, however, that no Indebtedness will be deemed to be
contractually subordinated in right of payment to any other Indebtedness solely by virtue of being
unsecured or by virtue of being secured on a first or junior priority basis.
For purposes of determining compliance with this Section 4.09, in the event that an item of
proposed Indebtedness, Disqualified Stock or preferred equity meets the criteria of more than one
of the categories of Permitted Debt described in clauses (1) through (16) above or is entitled to
be incurred pursuant to Section 4.09(a) hereof, the Company will be permitted to classify such item
of Indebtedness, Disqualified Stock or preferred equity on the date of its incurrence and will only
be required to include the amount and type of such Indebtedness, Disqualified Stock or preferred
equity in one of the above clauses, although the Company may divide and classify an item of
Indebtedness, Disqualified Stock or preferred equity in one or more of the types of Indebtedness,
Disqualified Stock or preferred equity and may later reclassify all or a portion of such item of
Indebtedness, Disqualified Stock or preferred equity, in any manner that complies with this Section
4.09. Indebtedness under Credit Facilities outstanding on the Issue Date will initially be deemed
to have been incurred on such date in reliance on the exception provided by clause (1) of the
definition of Permitted Debt. The accrual of interest or dividends, the accretion or amortization
of original issue discount, the payment of interest on any Indebtedness in the form of additional
Indebtedness with the same terms, the reclassification of preferred equity as Indebtedness due to a
change in accounting principles, the payment of dividends on Disqualified Stock or preferred equity
in the form of additional shares of the same class of Disqualified Stock or preferred equity and
unrealized losses or charges in respect of Hedging Obligations (including those resulting from the
application of SFAS No. 133) will not be deemed to be an incurrence of Indebtedness or an issuance
of Disqualified Stock or preferred equity for purposes of this Section 4.09. Notwithstanding any
other provision of this Section 4.09, the maximum amount of Indebtedness that the Company or any
Restricted
61
Subsidiary of the Company may incur pursuant to this Section 4.09 will not be deemed to
be exceeded solely as a result of fluctuations in exchange rates or currency values.
For purposes of determining compliance with any U.S. dollar denominated restriction on the
incurrence of Indebtedness where the Indebtedness incurred is denominated in a different currency,
the amount of such Indebtedness will be the U.S. Dollar Equivalent determined on the date of the
establishment of the facility or instrument under which such Indebtedness was incurred;
provided, however, that if such Indebtedness denominated in a different currency is subject to a
Currency Agreement with respect to U.S. dollars, covering all principal, premium, if any, and
interest payable on such Indebtedness, the amount of such Indebtedness expressed in U.S. dollars
will be as provided in such Currency Agreement. The principal amount of any refinancing
Indebtedness incurred in the same currency as the Indebtedness being refinanced will be the U.S.
Dollar Equivalent of the Indebtedness refinanced, except to the extent that (i) such U.S. Dollar
Equivalent was determined based on a Currency Agreement, in which case the refinancing Indebtedness
will be determined in accordance with the preceding sentence, and (ii) the principal amount of the
refinancing Indebtedness exceeds the principal amount of the Indebtedness being refinanced, in
which case the U.S. Dollar Equivalent of such excess, as appropriate, will be determined on the
date such refinancing Indebtedness is incurred.
The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with
original issue discount;
(2) the principal amount of the Indebtedness, in the case of any other Indebtedness;
and
(3) in respect of Indebtedness of another Person secured by a Lien on the assets of the
specified Person, the lesser of:
(A) the Fair Market Value of such assets at the date of determination; and
(B) the amount of the Indebtedness of the other Person.
Section 4.10 Asset Sales.
(a) The Company will not, and will not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of the Asset Sale at least equal to the Fair Market Value (such
Fair Market Value to be determined on the date of contractually agreeing to such Asset Sale)
of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the aggregate consideration received from such Asset Sale and all
other Asset Sales since the Issue Date, on a cumulative basis, by the Company or such
Restricted Subsidiary is in the form of cash, Cash Equivalents or Additional Assets, or any
combination thereof. For purposes of this provision, each of the following will be deemed
to be cash:
(A) any liabilities of the Company or any Restricted Subsidiary of the Company
(other than contingent liabilities and liabilities that are by their terms
subordinated to the Notes or any Note Guarantee) that are assumed by the transferee
of
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any such assets and as a result of which the Company or such Restricted
Subsidiary is released from further liability;
(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 or Cash Equivalents within 180 days of the
receipt thereof, to the extent of the cash or Cash Equivalents received in that
conversion;
(C) any Designated Non-cash Consideration received by the Company or any of its
Restricted Subsidiaries in such Asset Sale; provided that the aggregate Fair Market
Value of such Designated Non-cash Consideration, taken together with the Fair Market
Value at the time of receipt of all other Designated Non-cash Consideration received
pursuant to this clause (C) less the amount of Net Proceeds previously realized in
cash from prior Designated Non-cash Consideration is less than the greater of (x)
2.0% of Consolidated Net Tangible Assets at the time of the receipt of such
Designated Non-cash Consideration (with the Fair Market Value of each item of
Designated Non-cash Consideration being measured at the time received and without
giving effect to subsequent changes in value) and (y) $15.0 million; and
(D) any Capital Stock or assets of the kind referred to in clause (B), (D) or
(E) of Section 4.10(b)(1) hereof.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or
the applicable Restricted Subsidiary, as the case may be) may:
(1) apply such Net Proceeds, at its option:
(A) to repay (w) Indebtedness and other Obligations under a Credit Facility
secured by a Permitted Lien, (x) any Indebtedness that was secured by the assets
sold in such Asset Sale, (y) other Indebtedness that is pari passu with the Notes
(provided, that in the case of this clause (y), the Issuers shall also equally and
ratably reduce Indebtedness under the Notes by making an Asset Sale Offer to all
Holders of Notes at a price payable in cash equal to 100% of the principal amount
thereof plus accrued and unpaid interest and Additional Interest, if any, to, but
excluding, the date of purchase, prepayment or redemption, subject to rights of
Holders of Notes on the relevant record date to receive interest due on the relevant
payment date), or (z) Indebtedness of a Restricted Subsidiary of the Company that is
not a Guarantor, in each case other than Indebtedness owed to the Company or an
Affiliate of the Company; or
(B) to acquire all or substantially all of the assets of, or any Capital Stock
of, another Permitted Business; provided, that in the case of any such acquisition
of Capital Stock, such Person is or becomes a Restricted Subsidiary of the Company;
or
(C) to make capital expenditures; or
(D) to acquire other long-term assets that are used or useful in a Permitted
Business; or
(E) to invest in Additional Assets or make a Permitted Investment; or
63
(2) enter into a binding commitment to apply the Net Proceeds pursuant to clauses (B),
(C), (D) or (E) of Section 4.10(b)(1) hereof; provided that such binding commitment shall be
treated as a permitted application of the Net Proceeds from the date of such commitment
until the
earlier of (x) the date on which such acquisition or expenditure is consummated, and
(y) the 180th day following the expiration of the aforementioned 365-day period.
Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving
credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this
Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section
4.10(b) hereof will constitute Excess Proceeds. If at any time the aggregate amount of Excess
Proceeds exceeds $20.0 million, or on any earlier date if the Company so elects, the Company will
make an offer to all Holders of Notes (an Asset Sale Offer) and all holders of other Indebtedness
that is pari passu with the Notes containing provisions similar to those set forth in this
Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets
to purchase, prepay or redeem the maximum principal amount of Notes and such other pari passu
Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and
expenses, including premiums, incurred in connection therewith) that may be purchased out of the
Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal
amount thereof plus accrued and unpaid interest and Additional Interest, if any, to, but excluding,
the date of purchase, prepayment or redemption, subject to the rights of Holders of Notes on the
relevant record date to receive interest due on the relevant interest payment date, and will be
payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the
Company or any Restricted Subsidiary of the Company may use those Excess Proceeds for any purpose
not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other
pari passu Indebtedness tendered into (or required to be purchased, prepaid or redeemed in
connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will
select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis, based
on the amounts tendered or required to be purchased, prepaid or redeemed. Upon completion of each
Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(d) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the
extent that the provisions of any securities laws or regulations conflict with the provisions of
this Section 4.10, the Company will comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under the provisions of this Section 4.10 by
virtue of such compliance.
(e) Not later than the date upon which written notice of an Asset Sale Offer is delivered to
the Trustee as provided above, the Issuers shall deliver to the Trustee an Officers Certificate as
to (i) the amount of the Excess Proceeds, (ii) the allocation of the Net Proceeds from the Asset
Sales pursuant to which such Asset Sale Offer is being made and (iii) the compliance of such
allocation with the provisions of this Section 4.10. Upon the expiration of the period for which
the Asset Sale Offer remains open (the Offer Period), the Issuers shall deliver to the Trustee
for cancellation the Notes or portions thereof that have been properly tendered to and are to be
accepted by the Issuers. The Trustee (or a Paying Agent, if not the Trustee) shall, on the date of
purchase, mail or deliver payment to each tendering Holder in the amount of the purchase price. In
the event that the Excess Proceeds delivered by the Issuers to the Trustee is greater than the
purchase price of the Notes tendered, the Trustee shall deliver the excess to the Issuers
immediately after the expiration of the Offer Period for application in accordance with this
Section 4.10.
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(f) Holders electing to have a Note purchased shall be required to surrender the Note,
with the form entitled Option of Holder to Elect Purchase attached to the Note duly completed, to
the Issuers at the address specified in the notice at least three Business Days prior to the
purchase date. Holders shall be entitled to withdraw their election if the Trustee or the Issuers
receive not later than one Business Day prior to the purchase date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal amount of the Note which
was delivered by the Holder for purchase and a statement that such Holder is withdrawing his
election to have such Note purchased. If at the end of the Offer Period more Notes are tendered
pursuant to an Asset Sale Offer than the Issuers are required to purchase, selection of such Notes
for purchase shall be made by the Trustee in compliance with the requirements of the principal
national securities exchange, if any, on which such Notes are listed, or if such Notes are not so
listed, on a pro rata basis, by lot or by such other method as the Trustee shall deem fair and
appropriate (and in such manner as complies with applicable legal requirements); provided that no
Notes of $2,000 or less shall be purchased in part.
(g) Notices of an Asset Sale Offer shall be mailed by first class mail, postage prepaid, at
least 30 but not more than 60 days before the purchase date to each Holder at such Holders
registered address. If any Note is to be purchased in part only, any notice of purchase that
relates to such Security shall state the portion of the principal amount thereof that is to be
purchased.
(h) A new Note in principal amount equal to the unpurchased portion of any Note purchased in
part shall be issued in the name of the Holder thereof upon cancellation of the original Note. On
and after the purchase date, unless the Issuers default in payment of the purchase price, interest
shall cease to accrue on Notes or portions thereof purchased.
Section 4.11 Transactions with Affiliates.
(a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any
payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of
the Company (each, an Affiliate Transaction), involving aggregate consideration in excess of
$10.0 million, unless:
(1) the Affiliate Transaction is on terms that are not materially less favorable to the
Company or the relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Restricted Subsidiary with an unrelated
Person; and
(2) the Company delivers to the Trustee with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate consideration in excess of
$35.0 million, a resolution adopted by the majority of the Board of Directors of the Company
approving such Affiliate Transaction and set forth in an Officers Certificate certifying
that such Affiliate Transaction complies with this Section 4.11.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will
not be subject to the provisions of Section 4.11(a) hereof:
(1) any employment agreement, employee benefit plan, officer or director
indemnification agreement or any similar arrangement entered into by the Company or any of
its Restricted Subsidiaries in the ordinary course of business or consistent with past
practice and payments pursuant thereto;
65
(2) transactions (including a merger) between or among the Company and/or any of its
Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary of the Company)
that is an Affiliate of the Company solely because the Company owns, directly or through a
Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(4) payment of reasonable fees to, and indemnity provided on behalf of, officers,
directors, employees or consultants of the Company or any of its Restricted Subsidiaries or
any direct or indirect parent company of the Company;
(5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to
Affiliates of the Company or to any director, officer, employee or consultant of the Company
or any direct or indirect parent company of the Company, and the granting and performance of
registration rights in connection therewith;
(6) Restricted Payments and Investments that do not violate Section 4.07 hereof;
(7) loans or advances to employees or consultants in the ordinary course of business or
consistent with past practice;
(8) any transaction in which the Company or any of its Restricted Subsidiaries, as the
case may be, delivers to the Trustee a letter from an accounting, appraisal or investment
banking firm of national standing stating that such transaction is fair to the Company or
such Restricted Subsidiary from a financial point of view or that such transaction meets the
requirements of clause (1) of Section 4.11(a);
(9) the existence of, or the performance by the Company or any of its Restricted
Subsidiaries of its obligations under the terms of, any acquisition agreements or members
or stockholders agreement or related documents to which it is a party as of the Issue Date
and any amendment thereto or similar agreements which it may enter into thereafter;
provided, however, that the existence of, or the performance by the Company or any of its
Restricted Subsidiaries of its obligations under, any future amendment to any such existing
agreement or under any similar agreement entered into after the Issue Date shall only be
permitted by this clause (9) to the extent that the terms of any such existing agreement,
together with all amendments thereto, taken as a whole, or such new agreement are not
otherwise more disadvantageous to the Holders of the Notes taken as a whole than the
original agreement as in effect on the Issue Date;
(10) transactions with Unrestricted Subsidiaries, customers, clients, suppliers, joint
venture partners or purchasers or sellers of goods or services, or lessors or lessees of
property, in each case in the ordinary course of business and otherwise in compliance with
the terms of this Indenture which are, in the aggregate (taking into account all the costs
and benefits associated with such transactions), materially no less favorable to the Company
or its Restricted Subsidiaries than those that would have been obtained in a comparable
transaction by the Company or such Restricted Subsidiary with an unrelated Person, in the
reasonable determination of the Board of Directors of the Company or senior management of
the Company, or are on terms at least as favorable as might reasonably have been obtained at
such time from an unaffiliated party;
(11) (x) guarantees of performance by the Company and its Restricted Subsidiaries of
Unrestricted Subsidiaries in the ordinary course of business, except for guarantees of
66
Indebtedness in respect of borrowed money, and (y) pledges of Equity Interests of
Unrestricted Subsidiaries for the benefit of lenders of Unrestricted Subsidiaries;
(12) if such Affiliate Transaction is with a Person in its capacity as a holder of
Indebtedness or Capital Stock of the Company or any Restricted Subsidiary of the Company
where such Person is treated no more favorably than the other holders of Indebtedness or
Capital Stock of the Company or any Restricted Subsidiary of the Company;
(13) transactions effected pursuant to agreements in effect on the Issue Date and any
amendment, modification or replacement of such agreement (so long as such amendment or
replacement is not, in the good faith judgment of the Board of Directors of the Company,
materially more disadvantageous to the Holders of the Notes, taken as a whole); and
(14) payments of fees and expenses in connection with any financial advisory, financing
or other investment banking activities, including without limitation, in connection with
acquisitions or divestitures, which payments are approved by a majority of the Board of
Directors of the Company.
Section 4.12 Liens.
The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, create, incur, assume or otherwise suffer to exist any Lien (the Initial Lien) of any
kind (other than Permitted Liens) upon any of their property or assets, now owned or hereafter
acquired, securing Indebtedness of the Company or the Guarantors unless all payments due under this
Indenture and the Notes are secured on at least an equal and ratable basis with the obligations so
secured until such time as such obligations are no longer secured by a Lien.
Any Lien created for the benefit of the Holders of the Notes pursuant to the preceding
paragraph shall provide by its terms that such Lien shall be automatically and unconditionally
released and discharged upon the release and discharge of the Initial Lien and any other Liens that
would have triggered any Obligations pursuant to this Section 4.12.
Section 4.13 Business Activities.
The Company will not, and will 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.
Section 4.14 Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, the Company will make an offer (a Change of
Control Offer) to each Holder to repurchase all or any part (equal to $2,000 or an integral
multiple of $1,000 in excess of $2,000) of that Holders Notes at a purchase price in cash equal to
101% of the
aggregate principal amount of Notes repurchased plus accrued and unpaid interest and
Additional Interest, if any, on the Notes repurchased to, but not including, the date of purchase
(subject to the rights of Holders of Notes on the relevant record date to receive interest due on
the relevant interest payment date (the Change of Control Payment)). Within 30 days following
any Change of Control, except to the extent that the Issuers have exercised their right to redeem
the Notes in accordance with Article 3 of this Indenture, the Company will mail a notice to each
Holder describing the transaction or transactions that constitute the Change of Control and
stating:
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(1) that the Change of Control Offer is being made pursuant to this Section 4.14 and
that all Notes properly tendered pursuant to such Change of Control Offer will be accepted
for payment;
(2) the purchase price and the purchase date, 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);
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Change of Control Payment,
all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue
interest after the Change of Control Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control
Offer will be required to surrender the Notes, with the form entitled Option of Holder to
Elect Purchase attached to the Notes completed, or transfer by book-entry transfer, to the
Paying Agent at the address specified in the notice prior to the close of business on the
third Business Day preceding the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the second Business Day preceding the
Change of Control Payment Date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of Notes delivered for purchase, and a
statement that such Holder is withdrawing his election to have the Notes purchased; and
(7) that Holders whose Notes are being purchased only in part will be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered, which
unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of
$1,000 in excess of $2,000;
provided that a Change of Control Offer may be made in advance of a Change of Control, and
conditioned upon such Change of Control, if a definitive agreement is in place for the Change of
Control at the time of making the Change of Control Offer.
The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and
any other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a Change of Control. To
the extent that the provisions of any securities laws or regulations conflict with the provisions
of this Section 4.14 hereof, the Company will comply with the applicable securities laws and
regulations and will not be deemed to have breached their obligations under this Section 4.14 by
virtue of such compliance.
(b) On the Business Day immediately preceding the Change of Control Payment Date, the Company
will, to the extent lawful, deposit with the paying agent an amount equal to the Change of Control
Payment in respect of all Notes or portions of Notes accepted for payment.
(c) On the Change of Control Payment Date, the Company will, to the extent lawful:
(1) accept for payment all Notes or portions of Notes (in a minimum principal amount of
$2,000 and integral multiples of $1,000 in excess of $2,000) properly tendered pursuant to
the Change of Control Offer and not properly withdrawn; and
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(2) deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers Certificate stating the aggregate principal amount of Notes or
portions of Notes being purchased by the Company.
The Paying Agent will promptly mail to each Holder of Notes properly tendered the Change of
Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any; provided that each new note will be in a principal amount
of $2,000 or an integral multiple of $1,000 in excess of $2,000.
(d) The provisions described above in this Section 4.14 that require the Company to make a
Change of Control Offer following a Change of Control are applicable whether or not any other
provisions of this Indenture are applicable. Except as described in this Section 4.14 with respect
to a Change of Control, Holders are not permitted under this Indenture to require that the Company
repurchase or redeem the Notes in the event of a takeover, recapitalization or similar transaction.
The Company will publicly announce the results of the Change of Control Offer on or as soon as
reasonably practicable after the Change of Control Payment Date.
(e) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes
validly tender and do not withdraw such Notes in a Change of Control Offer and the Issuers, or any
other Person making a Change of Control Offer in lieu of the Company as described below, purchases
all of the Notes validly tendered and not withdrawn by such Holders, the Company will have the
right, upon not less than 30 nor more than 60 days prior notice, given not more than 30 days
following such purchase pursuant to the Change of Control Offer described above, to redeem all
Notes that remain outstanding following such purchase at a redemption price in cash equal to the
applicable Change of Control Payment plus, to the extent not included in the Change of Control
Payment, accrued and unpaid interest and Additional Interest, if any, to the date of redemption
(subject to the right of Holders of record on the relevant record date to receive interest due on
the relevant interest payment date).
(f) The Company will not be required to make a Change of Control Offer upon a Change of
Control if (1) a third party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Section 4.14 and purchases all
Notes properly tendered and not withdrawn under the Change of Control Offer, or (2) notice of
redemption has been given pursuant to Section 3.07 hereof, unless and until there is a default in
payment of the applicable redemption price.
(g) The Companys obligation to make a Change of Control Offer pursuant to this Section 4.14
may be waived or modified or terminated with the written consent of the Holders of a majority in
principal amount of the Notes then outstanding (including consents obtained in connection with a
tender offer or exchange offer for the Notes) prior to the occurrence of such Change of Control.
Section 4.15 Additional Note Guarantees.
If the Company or any of its Restricted Subsidiaries acquires or creates another Domestic
Subsidiary of the Company, after the Issue Date, then that newly acquired or created Domestic
Subsidiary, if such Domestic Subsidiary guarantees any Indebtedness of the Company for borrowed
money (other than intercompany debt), will become a Guarantor and execute a supplemental indenture
and deliver an Opinion of Counsel who is satisfactory to the Trustee within 30 days of the date on
which it was acquired or created. The form of such supplemental indenture is attached as Exhibit D
hereto.
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Section 4.16 Designation of Restricted and Unrestricted Subsidiaries.
The Board of Directors of the Company may designate any Restricted Subsidiary, other than the
Co-Issuer, to be an Unrestricted Subsidiary if that designation would not cause a Default. If a
Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value
of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the
Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of
the time of the designation and will reduce the amount available for Restricted Payments under
Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as
determined by the Company. That designation will only be permitted if the Investment would be
permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an
Unrestricted Subsidiary. The Board of Directors of the Company may redesignate any Unrestricted
Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default.
Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced
to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of
Directors of the Company giving effect to such designation and an Officers Certificate certifying
that such designation complied with the preceding conditions and was permitted by Section 4.07
hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements
as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for
purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by
a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted
to be incurred as of such date under Section 4.09 hereof, the Company will be in default of such
covenant. The Board of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary of the Company; provided that such designation will 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 will only be
permitted if (1) (x) the Company could incur such Indebtedness pursuant to the Fixed Charge
Coverage Ratio test described under Section 4.09(a) hereof, or (y) the Fixed Charge Coverage Ratio
for the Company and its Restricted Subsidiaries would be greater than such ratio for the Company
and its Restricted Subsidiaries immediately prior to such designation, in each case on a pro forma
basis taking into account such designation; and (2) no Default or Event of Default would be in
existence following such designation.
Section 4.17 Changes in Covenants upon Notes being Rated Investment Grade.
During any period of time and beginning on the day that (a) the Notes have an Investment Grade
Rating and (b) no Default or Event of Default has occurred and is continuing under this Indenture,
the Company and its Restricted Subsidiaries will not be subject to the covenants contained in
Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.13 and 4.16 hereof, and clause (4) of Section 5.01 shall
terminate. During any period that the foregoing covenants have been suspended, the Companys Board
of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to
Section 4.16 hereof.
If the Company and its Restricted Subsidiaries are not subject to these covenants for any
period of time as a result of the previous paragraph (a Fall-Away Period) and, subsequently, the
ratings assigned to the Notes are withdrawn or downgraded so the Notes no longer have an Investment
Grade Rating then the Company and its Restricted Subsidiaries will thereafter again be subject to
these covenants. The ability of the Company and its Restricted Subsidiaries to make Restricted
Payments after the time of such withdrawal or downgrade will be calculated as if Section 4.07
hereof had been in effect during the entire period of time from the Issue Date. Notwithstanding
the foregoing, the continued existence after the end of the Fall-Away Period of facts and
circumstances or obligations arising from transactions that occurred
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during a Fall-Away Period shall not constitute a breach of any covenant set forth in this Indenture or cause an Event of
Default hereunder.
Section 4.18 Restrictions on Activities of the Co-Issuer.
The Co-Issuer will not hold any material assets, become liable for any material obligations or
engage in any significant business activities; provided that the Co-Issuer may be a co-obligor with
respect to Indebtedness if the Company is a primary obligor of such Indebtedness and the net
proceeds of such Indebtedness are received by the Company or one or more of the Companys
Subsidiaries (other than the Co-Issuer).
ARTICLE 5
SUCCESSORS
SUCCESSORS
Section 5.01 Consolidation, Amalgamation, Merger, or Sale of Assets.
The Company will not, directly or indirectly: (i) consolidate, amalgamate or merge with or
into another Person (whether or not the Company is the surviving entity); or (ii) sell, assign,
transfer, convey or otherwise dispose of all or substantially all of the Companys properties or
assets (determined on a consolidated basis for the Company and its Restricted Subsidiaries) in one
or more related transactions to another Person, unless:
(1) either:
(A) the Company is the surviving entity; 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 has been made is a corporation, partnership or limited liability
company organized or existing under the laws of the United States, any state of the
United States or the District of Columbia; and, if such entity is not a corporation,
a co-obligor of the Notes is a corporation organized or existing under any such
laws;
(2) the Person formed by or surviving any such consolidation or merger (if other than
the Company) or the Person to which such sale, assignment, transfer, conveyance or other
disposition has been made assumes all the obligations of the Company, as the case may be,
under the Notes, this Indenture and the Registration Rights Agreement pursuant to a
supplemental indenture reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default exists; and
(4) the Company or the Person formed by or surviving any such consolidation or merger
(if other than the Company), or to which such sale, assignment, transfer, conveyance or
other disposition has been made would, 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 (A) 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) hereof; or (B) have had a Fixed Charge Coverage Ratio for the successor
entity and its Restricted Subsidiaries not less than the actual Fixed Charge Coverage Ratio
for the Company and its Restricted Subsidiaries immediately prior to such transaction.
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In addition, the Company will not, directly or indirectly, lease all or substantially all of
the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more
related transactions, to any other Person.
This Section 5.01 will not apply to any consolidation, amalgamation, merger, or any sale,
assignment, transfer, conveyance, lease or other disposition of assets between or among the Company
and any of its Restricted Subsidiaries. Clauses (3) and (4) of this Section 5.01 will not apply to
any consolidation, amalgamation or merger of the Company (1) with or into one of its Restricted
Subsidiaries for any purpose or (2) with or into an Affiliate of the Company solely for the purpose
of reincorporating the Company under the laws of the United States, any state of the United States
or the District of Columbia.
Section 5.02 Successor Substituted.
Upon any consolidation, amalgamation or merger, or any sale, assignment, transfer, lease,
conveyance or other disposition of all or substantially all of the properties or assets of an
Issuer in a transaction that is subject to, and that complies with the provisions of, Section 5.01
hereof, the successor Person formed by such consolidation or into or with which such Issuer is
merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made
shall succeed to, and be substituted for (so that from and after the date of such consolidation,
amalgamation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the
provisions of this Indenture referring to the Company or Co-Issuer or Issuers, as the case
may be, shall refer instead to the successor Person and not to the Company or Co-Issuer or Issuers,
as the case may be), and may exercise every right and power of the Company or Co-Issuer or Issuers,
as the case may be, under this Indenture with the same effect as if such successor Person had been
named as the Company or Co-Issuer or Issuers, as the case may be herein; provided, however, that
the predecessor 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 or substantially all of such Issuers properties or
assets in a transaction that is subject to, and that complies with the provisions of, Section 5.01
hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
Each of the following is an Event of Default:
(1) default for 30 days in the payment when due of interest, or Additional Interest, if
any, with respect to, the Notes;
(2) default in the payment when due (at maturity, upon redemption or otherwise) of the
principal of, or premium, if any, on, the Notes;
(3) failure by the Company or any of the Companys Restricted Subsidiaries for 60 days
(or 180 days in the case of a Reporting Failure) after notice to the Company by the Trustee
or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding
voting as a single class to comply with any of the other agreements in this Indenture;
(4) 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 Restricted Subsidiary of the Company that is a Significant Subsidiary of the
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Company, or any group of the Companys Restricted Subsidiaries that taken as a whole would
constitute a Significant Subsidiary of the Company (or the payment of which is guaranteed by
the Company or any of the Companys Restricted Subsidiaries), whether such Indebtedness or
Guarantee now exists, or is created after the Issue Date (but excluding Indebtedness owing
to the Company or a Restricted Subsidiary of the Company), if that default:
(A) is caused by a failure to pay principal on such Indebtedness prior to the
expiration of the grace period provided in such Indebtedness following the Stated
Maturity of such Indebtedness (a Payment Default); or
(B) results in the acceleration of such Indebtedness prior to its Stated
Maturity, and, in each case, the principal amount of any such Indebtedness, together
with the principal amount of any other such Indebtedness under which there has been
a Payment Default or the maturity of which has been so accelerated, aggregates $25.0
million or more;
(5) failure by the Company or any Restricted Subsidiary of the Company that is a
Significant Subsidiary of the Company, or any group of the Companys Restricted Subsidiaries
that taken as a whole would constitute a Significant Subsidiary of the Company, to pay final
and nonappealable judgments entered by a court or courts of competent jurisdiction
aggregating in excess of $25.0 million (net of any amounts which are covered by insurance or
bonded), which judgments are not paid, waived, satisfied, discharged or stayed for a period
of 60 days;
(6) any Issuer or any Restricted Subsidiary of the Company that is a Significant
Subsidiary of the Company, or any group of the Companys Restricted Subsidiaries that, taken
as a whole 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) consents to the appointment of a custodian of it or for all or
substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors.
(7) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:
(A) is for relief against any Issuer or any Restricted Subsidiary of the
Company that is a Significant Subsidiary of the Company or any group of the
Companys Restricted Subsidiaries that taken as a whole would constitute a
Significant Subsidiary of the Company in an involuntary case;
(B) appoints a custodian of any Issuer or any Restricted Subsidiary of the
Company that is a Significant Subsidiary of the Company or any group of the
Companys Restricted Subsidiaries that taken as a whole would constitute a
Significant Subsidiary of the Company or for all or substantially all of the
property of any Issuer or any Restricted Subsidiary of the Company that is a
Significant Subsidiary of the Company or any group
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of the Companys Restricted Subsidiaries that taken as a whole would constitute a Significant Subsidiary; or
(C) orders the liquidation of any Issuer or any Restricted Subsidiary of the
Company that is a Significant Subsidiary of the Company or any group of the
Companys Restricted Subsidiaries that taken as a whole would constitute a
Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive days; and
(8) except as permitted by this Indenture, any Note Guarantee of the Company or any
Restricted Subsidiary of the Company that is a Significant Subsidiary of the Company, or any
group of the Companys Restricted Subsidiaries that taken as a whole would constitute a
Significant Subsidiary of the Company, is held in any judicial proceeding to be
unenforceable or invalid or ceases for any reason to be in full force and effect (other than
in accordance with the terms of such Note Guarantee and this Indenture), or any Guarantor,
or any Person acting on behalf of any such Guarantor, denies or disaffirms its obligations
under its Note Guarantee and such Default continues for ten days.
Section 6.02 Acceleration.
In the case of an Event of Default specified in clause (6) or (7) of Section 6.01 hereof, with
respect to the Company or any Restricted Subsidiary of the Company that is a Significant Subsidiary
or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary, all outstanding Notes will become due and payable immediately without
further action or notice. If any other Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25%
in aggregate principal amount of the then outstanding Notes may declare all the Notes to be
due and payable immediately.
Upon any such declaration, the Notes shall become due and payable immediately.
In the event of any Event of Default specified in clause (4) of Section 6.01, such Event of
Default and all consequences thereof (excluding, however, any resulting Payment Default on the
Notes) will be annulled, waived and rescinded, automatically and without any action by the Trustee
or the Holders of Notes, if within 20 days after such Event of Default arose the Company delivers
an Officers Certificate to the Trustee stating that (x) the Indebtedness or Guarantee that is the
basis for such Event of Default has been discharged or (y) the Holders thereof have rescinded or
waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default
or (z) the default that is the basis for such Event of Default has been cured, it being understood
that in no event shall an acceleration of the principal amount of the Notes as described above be
annulled, waived or rescinded upon the happening of any such events.
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, interest or Additional 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 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.
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Section 6.04 Waiver of Past Defaults.
Holders of a majority in aggregate principal amount of the then outstanding Notes by written
notice to the Trustee may, on behalf of the Holders of all of the Notes, rescind an acceleration or
waive any existing Default or Event of Default and its consequences hereunder except a continuing
Default or Event of Default in the payment of principal of, premium on, if any, interest or
Additional Interest, if any, on, the Notes. Upon any such rescission or waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for
every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.
Section 6.05 Control by Majority.
Holders of a majority in aggregate principal amount of the then outstanding Notes may direct
the time, method and place of conducting any proceeding for exercising any remedy available to the
Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture that the Trustee determines may be
unduly prejudicial to the rights of other Holders or that may involve the Trustee in personal
liability.
Section 6.06 Limitation on Suits.
Except to enforce the right to receive payment of principal, premium, if any, interest or
Additional Interest, if any, when due, no Holder of a Note may pursue any remedy with respect to
this Indenture or the Notes unless:
(1) such Holder has previously given the Trustee written notice that an Event of
Default is continuing;
(2) 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;
(3) such Holders have offered the Trustee security or indemnity satisfactory to the
Trustee against any loss, liability or expense;
(4) the Trustee has not complied with such request within 60 days after the receipt of
the request and the offer of security or indemnity; and
(5) Holders of a majority in aggregate principal amount of the then outstanding Notes
have not given the Trustee a direction inconsistent with such request within such 60-day
period.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over another Holder.
Section 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder to receive
payment of principal, premium, if any, interest or Additional Interest, if any, on the Notes, on or
after the respective due dates expressed in the Notes (including in connection with an offer to
purchase), or to bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
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Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) hereof occurs and is continuing,
the Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Issuers for the whole amount of principal of, premium and Additional Interest, if any,
and interest remaining unpaid on, the Notes and interest on overdue principal and, to the extent
lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders allowed in any judicial proceedings relative to the Issuers (or any other
obligor upon the Notes), its creditors or its property and shall be entitled and empowered to
collect, receive and distribute any money or other property payable or deliverable on any such
claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable and documented compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent
that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the
estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured
by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and
other properties that the Holders may be entitled to receive in such proceeding whether in
liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting
the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim
of any Holder in any such proceeding.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article 6, or, after an Event of Default,
any money or other property distributable in respect of the Issuers obligations under this
Indenture, it shall pay out the money in the following order:
First: to the Trustee (including any predecessor trustee), its
agents and attorneys for amounts due under Section 7.07 hereof,
including payment of all compensation, expenses and liabilities
incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders for amounts due and unpaid on the Notes for
principal, premium and Additional Interest, if any, and interest,
ratably, without preference or priority of any kind, according to
the amounts due and payable on the Notes for principal, premium and
Additional Interest, if any and interest, respectively; and
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Third: to the Issuers or to such party as a court of competent
jurisdiction shall direct in writing.
The Trustee may fix a record date and payment date for any payment to Holders 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 and
documented attorneys fees and expenses against any party litigant in the suit, having due regard
to the merits and good faith of the claims or defenses made by the party litigant. This Section
6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 hereof,
or a suit by Holders of more than 10% in aggregate principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default occurs and is continuing, the Trustee will 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, that a prudent person would exercise or use under the circumstances in the conduct of
such persons own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee will be determined solely by the express provisions of
this Indenture and the Trustee need perform only those duties that are specifically set
forth in this Indenture and no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, with respect to certificates or opinions specifically required by any
provision hereof to be furnished to it, the Trustee will examine the certificates and
opinions to determine whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) this subsection (c) does not limit the effect of subsection (b) of this Section
7.01;
(2) the Trustee will 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
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(3) the Trustee will 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 Sections 6.04 and
6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture will require the Trustee to expend or risk its own funds or
incur any liability.
(f) The Trustee will not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Issuers. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
Section 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an Officers Certificate
or an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits
to take in good faith in reliance on such Officers Certificate or Opinion of Counsel. The Trustee
may consult with counsel of its own selection and the advice of such counsel or any Opinion of
Counsel will 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 will not be responsible for the
misconduct, negligence or failure to act of any agent appointed with due care.
(d) The Trustee will 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 Issuers will be sufficient if signed by an Officer of each Issuer and such
Officers name appears on the certificate described in Section 7.02(k).
(f) The Trustee will be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request of any Holder of Notes, unless such Holder has offered to the
Trustee security and indemnity satisfactory to it against any loss, liability or expense.
(g) In no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action.
(h) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Notes and this Indenture.
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(i) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder.
(j) The Trustee may request that the Issuers deliver an Officers Certificate setting forth
the names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which Officers Certificate may be signed by any person
authorized to sign an Officers Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
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 either Issuer or any Guarantor or any Affiliate of either Issuer or any
Guarantor 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 (i) eliminate such conflict within 90 days,
(ii) apply to the SEC for permission to continue as trustee (if this Indenture has been qualified
under the TIA) or (iii) resign. Any Agent may do the same with like rights and duties. The
Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustees Disclaimer.
The Trustee will not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes. The Trustee shall not be accountable for the Issuers use
of the proceeds from the Notes or any money paid to the Issuers or upon the Issuers direction
under any provision of this Indenture. The Trustee will not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee. The Trustee will 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 will mail to Holders 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
or Additional Interest, if any, or interest on, any Note, the Trustee may withhold the notice if
and so long as a committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders.
Section 7.06 Reports by Trustee to Holders.
(a) Within 60 days after each July 1 beginning with the July 1 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee will mail to the Holders 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 12 months preceding the reporting date, no report
need be transmitted). The Trustee also will comply with TIA § 313(b)(2). The Trustee will also
transmit by mail all reports as required by TIA § 313(c).
(b) A copy of each report at the time of its mailing to the Holders will be mailed by the
Trustee to the Issuers and filed by the Trustee with the SEC and each stock exchange on which the
Notes
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are listed in accordance with TIA § 313(d). The Issuers will promptly notify the Trustee in
writing when the Notes are listed on any stock exchange or delisted therefrom.
Section 7.07 Compensation and Indemnity.
(a) The Issuers will pay to the Trustee from time to time reasonable compensation for its
acceptance of this Indenture and services hereunder as the Company and the Trustee shall from time
to time agree in writing. The Trustees compensation will not be limited by any law on
compensation of a trustee of an express trust. The Issuers will reimburse the Trustee promptly
upon request for all reasonable and documented disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses will include the
reasonable and documented compensation, disbursements and expenses of the Trustees agents and
counsel.
(b) The Issuers and each Guarantor, jointly and severally, will indemnify the Trustee against
any and all losses, liabilities, claims, damages or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this Indenture, including the
reasonable and documented costs and expenses of enforcing this Indenture against the Issuers and
the Guarantors (including this Section 7.07) and defending itself against any claim (whether
asserted by the Issuers, the Guarantors, any Holder or any other Person) or liability in connection
with the exercise or performance of any of its powers or duties hereunder, except to the extent any
such loss, liability or expense may be attributable to its own negligence, bad faith or willful
misconduct. The Trustee will notify the Issuers promptly of any claim of which a Responsible
Officer has received written notice for which it may seek indemnity. Failure by the Trustee to so
notify the Issuers will not relieve the Issuers or any of the Guarantors of their obligations
hereunder. The Issuers or such Guarantor will defend the claim and the Trustee will cooperate in
the defense. The Trustee may have separate counsel and the Issuers and the Guarantors, as
applicable, will pay the reasonable and documented fees and expenses of such counsel provided,
however that the Issuers and any Guarantor shall not be required to pay such fees and expenses if
it assumes such indemnified parties defense and, in such indemnified parties reasonable judgment,
there is no conflict of interest between the Issuers and the Guarantors, as applicable, and such
parties in connection with such defense or if the subject matter will not adversely affect the
business of the indemnified parties. Neither the Issuers nor any Guarantor need pay for any
settlement made without its consent, which consent will not be unreasonably withheld.
(c) The obligations of the Issuers and the Guarantors under this Section 7.07 will survive the
satisfaction and discharge of this Indenture, the termination for any reason of this Indenture, and
the resignation or removal of the Trustee.
(d) To secure the Issuers and the Guarantors payment obligations in this Section 7.07, the
Trustee will 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
will survive the satisfaction and discharge of this Indenture.
(e) When the Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(6) or (7) 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.
(f) The Trustee will comply with the provisions of TIA § 313(b)(2) to the extent applicable.
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Section 7.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a successor Trustee will become
effective only upon the successor Trustees acceptance of appointment as provided in this Section
7.08.
(b) The Trustee may resign in writing at any time and be discharged from the trust hereby
created by so notifying the Issuers. The Holders of a majority in aggregate principal amount of
the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuers in
writing. The Issuers may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) 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;
(3) a custodian or public officer takes charge of the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for
any reason, the Issuers will promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the
Issuers.
(d) If a successor Trustee does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Issuers, or the Holders of at least 10% in
aggregate principal amount of the then outstanding Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee, after written request by any Holder who has been a Holder for at least six
months, fails to comply with Section 7.10 hereof, such Holder may petition at the expense of the
Issuers any court of competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
(f) A successor Trustee will deliver a written acceptance of its appointment to the retiring
Trustee and to the Issuers. Thereupon, the resignation or removal of the retiring Trustee will
become effective, and the successor Trustee will have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee will mail a notice of its succession to
Holders. The retiring Trustee will 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 Issuers obligations under Section 7.07 hereof will 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 Person, the successor Person without any further act will
be the successor Trustee. In case any Notes shall have been authenticated, but not delivered, by
the Trustee then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt
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such authentication and deliver the Notes so authenticated with
the same effect as if such successor Trustee had itself authenticated such Notes.
Section 7.10 Eligibility; Disqualification.
There will 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 $50.0
million as set forth in its most recent published annual report of condition.
This Indenture will always have a Trustee who satisfies the requirements of TIA § 310(a)(1),
(2) and (5). The Trustee is subject to TIA § 310(b).
Section 7.11 Preferential Collection of Claims Against the Issuers.
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.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuers may at any time, at the option of the Companys Board of Directors evidenced by a
resolution set forth in an Officers Certificate, elect to have either Section 8.02 or 8.03 hereof
be applied to all outstanding Notes and Note Guarantees upon compliance with the conditions set
forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Issuers exercise under Section 8.01 hereof of the option applicable to this Section
8.02, the Company, the Co-Issuer and each of the Guarantors will, subject to the satisfaction of
the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from their
obligations with respect to all outstanding Notes (including 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, the Co-Issuer and the Guarantors will be deemed to have paid and discharged the
entire Indebtedness represented by the outstanding Notes (including the Note Guarantees), which
will thereafter be deemed to be outstanding only for the purposes of Section 8.05 hereof and the
other Sections of this Indenture referred to in clauses (1) and (2) below, and to have satisfied
all their other obligations under such Notes, the Note Guarantees and this Indenture (and the
Trustee, on demand of and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which will survive until otherwise
terminated or discharged hereunder:
(1) the rights of Holders of outstanding Notes to receive payments in respect of the
principal of, premium on, if any, interest or Additional Interest, if any, on, such Notes
when such payments are due from the trust referred to in Section 8.04 hereof;
(2) the Issuers obligations with respect to such Notes under Sections 2.02, 2.03,
2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.10 and Section 4.02 hereof;
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(3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Issuers and the Guarantors obligations in connection therewith; and
(4) this Article 8.
Subject to compliance with this Article 8, the Issuers may exercise their option under this
Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Issuers exercise under Section 8.01 hereof of the option applicable to this Section
8.03, the Company, the Co-Issuer and each of the Guarantors will, subject to the satisfaction of
the conditions set forth in Section 8.04 hereof, be released from each of their obligations under
the covenants contained in Sections 4.03, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15,
4.16, 4.17 and 4.18 and clauses (3) and (4) of Section 5.01 hereof with respect to the outstanding
Notes on and after the date the conditions set forth in Section 8.04 hereof are satisfied
(hereinafter, Covenant Defeasance), and the Notes will 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 will continue to be deemed
outstanding for all other purposes hereunder (it being understood that such Notes will not be
deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that,
with respect to the outstanding Notes and Note Guarantees, the Company, the Co-Issuer and the
Guarantors may omit to comply with and will 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 with such
covenants will not constitute a Default or an Event of Default under Section 6.01 hereof, but,
except as specified above, the remainder of this Indenture and such Notes and Note Guarantees will
be unaffected thereby. In addition, upon the Issuers 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, Sections 6.01(3) through 6.01(5) hereof will not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02
or 8.03 hereof:
(1) the Issuers must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a
combination of cash in U.S. dollars and non-callable Government Securities, in amounts as
will be sufficient, in the opinion of a U.S. nationally recognized investment bank,
appraisal firm or firm of independent public accountants, to pay the principal of, premium
on, if any, interest and Additional Interest, if any, on, the outstanding Notes on the
stated date for payment thereof or on the applicable redemption date, as the case may be,
and the Issuers must specify whether the Notes are being defeased to such stated date for
payment or to a particular redemption date;
(2) in the case of an election under Section 8.02 hereof, the Issuers must deliver to
the Trustee an Opinion of Counsel who is reasonably acceptable to the Trustee (subject to
customary exceptions and exclusions) confirming that:
(A) the Issuers have received from, or there has been published by, the
Internal Revenue Service a ruling; or
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(B) 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 will confirm
that, the Holders of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same times as would
have been the case if such Legal Defeasance had not occurred;
(3) in the case of an election under Section 8.03 hereof, the Issuers must deliver to
the Trustee an Opinion of Counsel who is reasonably acceptable to the Trustee (subject to
customary exceptions and exclusions) confirming that the Holders of the outstanding Notes
will not recognize income, gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such Covenant Defeasance
had not occurred;
(4) no Default or Event of Default has occurred and is continuing on the date of such
deposit (other than a Default or Event of Default resulting from the borrowing of funds to
be applied to such deposit and the granting of any Lien securing such borrowing);
(5) such Legal Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under, any material agreement or instrument (other
than this Indenture) to which the Issuers or any of the Companys Subsidiaries is a party or
by which the Issuers or any of the Companys Subsidiaries is bound;
(6) the Issuers must deliver to the Trustee an Officers Certificate stating that the
deposit was not made by the Issuers with the intent of preferring the Holders of the Notes
over the other creditors of the Issuers with the intent of defeating, hindering, delaying or
defrauding any creditors of the Issuers or others; and
(7) the Issuers must deliver to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable Government Securities (including
the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 8.05, the Trustee) pursuant to Section 8.04 hereof in respect of the
outstanding Notes will 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 and
Additional Interest, if any, and interest, but such money need not be segregated from other funds
except to the extent required by law.
The Issuers will pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or non-callable Government Securities deposited pursuant to Section
8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the outstanding Notes.
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Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to
the Issuers from time to time upon the request of the Issuers any money or non-callable Government
Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section 8.04(1) hereof), are in
excess of the amount thereof that would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to Issuers.
Any money deposited with the Trustee or any Paying Agent, or then held by the Issuers, in
trust for the payment of the principal of, premium or Additional Interest, if any, or interest on,
any Note and remaining unclaimed for two years after such principal, premium or Additional
Interest, if any, or interest has become due and payable shall be paid to the Issuers on their
request or (if then held by an Issuer) will be discharged from such trust; and such Holder will
thereafter be permitted to look only to the Issuers for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuers as
trustee thereof, will 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 Issuers 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 will not be less than
30 days from the date of such notification or publication, any unclaimed balance of such money then
remaining will be repaid to the Issuers.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. 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 Issuers and the Guarantors obligations under this
Indenture and the Notes and the Note Guarantees will 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 Issuers make any payment of principal of, premium or
Additional Interest, if any, or interest on, any Note following the reinstatement of its
obligations, the Issuers will be subrogated to the rights of the Holders of such Notes to receive
such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders.
Notwithstanding Section 9.02 of this Indenture, without the consent of any Holders of Notes,
the Issuers, the Guarantors and the Trustee may amend or supplement this Indenture, the Notes or
the Note Guarantees:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in place of certificated
Notes;
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(3) to provide for the assumption of any Issuers or a Guarantors obligations to the
Holders of Notes and Note Guarantees by a successor to such Issuer or such Guarantor
pursuant to Article 5 or Article 10 hereof;
(4) 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 hereunder of any such
Holder;
(5) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA;
(6) to conform the text of this Indenture, the Note Guaranttes or the Notes to any
provision of the Description of notes section of the Offering Memorandum, to the extent
that such provision in that Description of notes was intended to be a verbatim recitation
of a provision of this Indenture, the Note Guarantees or the Notes;
(7) to provide for the issuance of Additional Notes in accordance with the limitations
set forth in this Indenture as of the date hereof; or
(8) to allow any Guarantor to execute a supplemental indenture and/or a Note Guarantee
with respect to the Notes and to release any Guarantor from a Note Guarantee in accordance
with the terms of this Indenture.
Upon the request of the Issuers 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 hereof, the Trustee will join with the Issuers
and the Guarantors in
the execution of any amended or supplemental indenture authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and stipulations that may be therein
contained, but the Trustee will not be obligated to enter into such amended or supplemental
indenture that affects its own rights, duties or immunities under this Indenture or otherwise.
After an amendment, supplement or waiver under this Section 9.01 becomes effective, the
Issuers will mail to the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Issuers to mail such notice, or any defect therein, will
not, however, in any way impair or affect the validity of any such amendment, supplement or waiver.
Section 9.02 With Consent of Holders.
Except as provided below in this Section 9.02, the Issuers, the Guarantors and the Trustee may
amend or supplement this Indenture (including, without limitation, Sections 4.10 and 4.14 hereof)
and the Notes or the Note Guarantees with the consent of the Holders of at least a majority in
aggregate principal amount of the Notes then outstanding (including, without limitation, Additional
Notes, if any) voting as a single class (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 (other than a Default or
Event of Default in the payment of the principal of, premium or Additional Interest, if any, or
interest on, the Notes, except a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of this Indenture or the Notes or the Note Guarantees
may be waived with the consent of the Holders of a majority in aggregate principal amount of the
then outstanding Notes (including, without limitation, Additional Notes, if any) 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). Section 2.08 hereof shall determine which Notes are
considered to be outstanding for purposes of this Section 9.02.
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Upon the request of the Issuers accompanied by a resolution of their respective Boards 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 as
aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the
Trustee will join with the Issuers and the Guarantors in the execution of such amended or
supplemental indenture unless such amended or supplemental indenture directly affects the Trustees
own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may
in its discretion, but will not be obligated to, enter into such amended or supplemental Indenture.
It is not necessary for the consent of the Holders under this Section 9.02 to approve the
particular form of any proposed amendment, supplement or waiver, but it is sufficient if such
consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Issuers will mail to the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Issuers to mail such notice, or any defect therein, will
not, however, in any way impair or affect the validity of any such amendment, supplement 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 Issuers with any provision of this Indenture or the Notes or the Note Guarantees.
However, without the consent of each Holder affected thereby, an amendment, supplement or waiver
under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders must consent to an amendment,
supplement or waiver;
(2) reduce the principal of or extend the fixed maturity of any Note;
(3) reduce the rate of or extend the time for payment of interest, including default
interest, or premium on any Note;
(4) waive a Default or Event of Default in the payment of principal of, premium on, if
any, interest or Additional Interest, if any, on, the Notes (except a rescission of
acceleration of the Notes by the Holders of at least a majority in aggregate principal
amount of the then outstanding Notes and a waiver of the Payment Default that resulted from
such acceleration);
(5) make any Note payable in money other than that stated in the Notes;
(6) make any change in the provisions of this Indenture relating to waivers of past
Defaults or impair the rights of Holders of Notes to receive payments of principal of,
premium on, if any, interest or Additional Interest, if any, on, the Notes;
(7) waive a redemption payment with respect to any Note (for the avoidance of doubt, a
payment required by Sections 4.10 or 4.14 hereof is not a redemption payment);
(8) release any Guarantor that is a Significant Subsidiary of the Company from any of
its obligations under its Note Guarantee or this Indenture, except in accordance with the
terms of this Indenture; or
(9) make any change in the preceding amendment and waiver provisions or the provision
of this clause (9).
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Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes will 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 is a
continuing consent by the Holder and every subsequent Holder or portion of a Note that evidences
the same debt as the consenting Holders Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke the consent as to its Note if the
Trustee receives written notice of revocation before the date the amendment, supplement or waiver
becomes effective. After an amendment, supplement or waiver becomes effective in accordance with
its terms, it 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 Issuers 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 will not affect the validity and
effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee will sign any amended or supplemental indenture authorized pursuant to this
Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. The Issuers may not sign an amended or supplemental indenture until
the Board of Directors of each Issuer approves it. In executing any amended or supplemental
indenture, the Trustee will be provided with and (subject to Section 7.01 hereof) will be fully
protected in relying upon, in addition to the documents required by Section 12.04 hereof, an
Officers Certificate and an Opinion of Counsel stating that the execution of such amended or
supplemental indenture is authorized or permitted by this Indenture.
ARTICLE 10
NOTE GUARANTEES
NOTE GUARANTEES
Section 10.01 Guarantee.
(a) Subject to this Article 10, each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and
to the Trustee and its successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Notes or the obligations of the Issuers hereunder or thereunder, that:
(1) the principal of, premium on, if any, interest and Additional Interest, if any, on
the Notes will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and interest on the Notes,
if any, if lawful, and all other obligations of the Issuers to the Holders or the Trustee
hereunder or
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thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(2) 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 will be jointly and severally obligated to pay the same
immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.
(b) The Guarantors hereby agree that their obligations hereunder are unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder with respect to any
provisions hereof or thereof, the recovery of any judgment against the Issuers, any action to
enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or defense of a
Guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of either Issuer, any right to require
a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenant
that this Note Guarantee will 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
Issuers, the Guarantors or any custodian, trustee, liquidator or other similar official acting in
relation to either the Issuers or the Guarantors, any amount paid by either to the Trustee or such
Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force
and effect.
(d) Each Guarantor agrees that it will not be entitled to any right of subrogation in relation
to the Holders in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on
the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes
of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any
declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations
(whether or not due and payable) will forthwith become due and payable by the Guarantors for the
purpose of this Note Guarantee. The Guarantors will have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the rights of the
Holders under the Note Guarantee.
Section 10.02 Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the
intention of all such parties that the 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 will be limited to the maximum
amount that will, after giving effect to such maximum amount and all other contingent and fixed
liabilities of such Guarantor that are relevant under such laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other
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Guarantor under this Article 10, result in
the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer
or conveyance.
Section 10.03 Intentionally Omitted.
Section 10.04 Guarantors May Consolidate, etc., on Certain Terms.
Except as otherwise provided in this Section 10.04, 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,
the Co-Issuer or another Guarantor, unless:
(1) immediately after giving effect to that transaction, no Default or Event of Default
exists; and
(2) either:
(A) such Guarantor is the surviving Person or the Person acquiring the property
in any such sale or disposition or the Person formed by or surviving any such
consolidation or merger assumes all the obligations of that Guarantor under this
Indenture, its Note Guarantee and the Registration Rights Agreement on the terms set
forth herein or therein, pursuant to a supplemental indenture in form reasonably
satisfactory to the Trustee; or
(B) the Net Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of this Indenture.
In case of any such consolidation, merger, amalgamation, 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 and the due and punctual
performance of all of the covenants and conditions of this Indenture to be performed by the
Guarantor, such successor Person will succeed to and be substituted for the 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 will in all respects have the same legal rank and benefit under this
Indenture as the Note Guarantees theretofore and thereafter issued in accordance with the terms of
this Indenture as though all of such Note Guarantees had been issued at the date of the execution
hereof.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding clauses 2(a) and (b)
above, nothing contained in this Indenture or in any of the Notes will prevent any consolidation or
merger of a Guarantor with or into an Issuer or another Guarantor, or will prevent any sale or
conveyance of the property of a Guarantor as an entirety or substantially as an entirety to an
Issuer or another Guarantor.
Section 10.05 Releases.
The Note Guarantee of a Guarantor will be released:
(1) in connection with any sale, disposition or transfer of all or substantially all of
the assets of that Guarantor (including by way of merger, amalgamation or consolidation) to
a Person that is not (either before or after giving effect to such transaction) the Company
or a
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Restricted Subsidiary of the Company, if the sale, disposition or transfer does not violate Section 4.10 hereof;
(2) in connection with any sale, disposition or transfer of Capital Stock of that
Guarantor after which such Guarantor is no longer a Restricted Subsidiary of the Company, if the sale, disposition or transfer does not violate Section 4.10 hereof;
(3) if the Company designates any Material Restricted Subsidiary that is a Guarantor to
be an Unrestricted Subsidiary in accordance with the applicable provisions of this
Indenture;
(4) upon Legal Defeasance in accordance with Article 8 hereof or satisfaction and
discharge of this Indenture in accordance with Article 11 hereof; or
(5) upon the release of such Guarantors guarantee of, and other Obligations with
respect to, all other Indebtedness of the Company for borrowed money (other than
intercompany debt).
Any Guarantor not released from its obligations under its Note Guarantee as provided in this
Section 10.05 will remain liable for the full amount of principal of, premium on, if any, interest
and Additional Interest, if any, on the Notes and for the other obligations of any Guarantor under
this Indenture as provided in this Article 10.
ARTICLE 11
SATISFACTION AND DISCHARGE
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further effect as to all Notes
issued hereunder, 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 been
deposited in trust or segregated and held in trust by the Issuers and thereafter
repaid to the Issuers, 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 mailing of a notice of redemption or
otherwise or will become due and payable within one year or may be called for
redemption within one year and the Issuers 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 of cash in U.S. dollars and non-callable Government
Securities, in 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 of, premium on, if any,
interest and Additional Interest, if any, on the Notes to the date of maturity or
redemption;
(2) the Issuers or any Guarantor has paid or caused to be paid all other sums payable
by it under this Indenture; and
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(3) the Issuers have delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Notes at maturity or on the
redemption date, as the case may be.
In addition, the Issuers must deliver an Officers Certificate to the Trustee stating that all
conditions precedent to satisfaction and discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited
with the Trustee pursuant to subclause (b) of clause (1) of this Section 11.01, the provisions of
Sections 11.02 and 8.06 hereof will survive such satisfaction and discharge. In addition, nothing
in this Section 11.01 will be deemed to discharge those provisions of Section 7.07 hereof, that, by
their terms, survive the satisfaction and discharge of this Indenture.
Section 11.02 Application of Trust Money.
Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee
pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium and Additional Interest, if any) and
interest for whose payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or Government Securities in
accordance with Section 11.01 hereof by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Issuers and any Guarantors obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof;
provided that if the Issuers have made any payment of principal of, premium or Additional Interest,
if any, or interest on, any Notes because of the reinstatement of its obligations, the Issuers
shall be subrogated to the rights of the Holders of such Notes to receive such payment from the
money or Government Securities held by the Trustee or Paying Agent.
ARTICLE 12
MISCELLANEOUS
MISCELLANEOUS
Section 12.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
TIA § 318(c), the imposed duties will control.
Section 12.02 Notices.
Any notice or communication by either Issuer, any Guarantor or the Trustee to the others is
duly given if in writing and delivered in Person or by first class mail (registered or certified,
return receipt requested), facsimile transmission or overnight air courier guaranteeing next day
delivery, to the others address:
If to either Issuer and/or any Guarantor:
Crestwood Midstream Partners LP
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717 Texas Avenue, Suite 3150
Houston, Texas 77002
Facsimile No.: 832-519-2250
Attention: Chief Financial Officer
Houston, Texas 77002
Facsimile No.: 832-519-2250
Attention: Chief Financial Officer
With a copy to:
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017
Facsimile No.: (212) 455-2502
Attention: Edward P. Tolley III, Esq.
425 Lexington Avenue
New York, New York 10017
Facsimile No.: (212) 455-2502
Attention: Edward P. Tolley III, Esq.
If to the Trustee:
The Bank of New York Mellon Trust Company, N.A.
601 Travis Street, 16th Floor
Houston, Texas 77002
Facsimile No.: (713) 483-6954
Attention: Corporate Trust Administration
601 Travis Street, 16th Floor
Houston, Texas 77002
Facsimile No.: (713) 483-6954
Attention: Corporate Trust Administration
Either Issuer, any Guarantor or the Trustee, by notice to the others, may designate additional
or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) will be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by
facsimile; and 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 will 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 will 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 will 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 Issuers mail a notice or communication to Holders, it will mail a copy to the Trustee
and each Agent at the same time.
Section 12.03 Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their
rights under this Indenture or the Notes. The Issuers, the Trustee, the Registrar and anyone else
shall have the protection of TIA § 312(c).
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Section 12.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuers to the Trustee to take any action under this
Indenture (other than in connection with the Authentication Order, dated the date hereof, and
delivered to the Trustee in connection with the issuance of the Initial Notes), the Issuers shall
furnish to the Trustee:
(1) an Officers Certificate in form reasonably satisfactory to the Trustee (which must
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; and
(2) an Opinion of Counsel in form reasonably satisfactory to the Trustee (which must
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.
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)) must comply
with the provisions of TIA § 314(e) and must include:
(1) a statement that the Person making such certificate or opinion has read such
covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been satisfied; and
(4) 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, Stockholders and Members.
To the extent permitted by law no director, manager, officer, employee, incorporator,
stockholder, partner or member of either of the Issuers, any parent entity of the Company or any
Subsidiary of the Company, as such, will have any liability for any obligations of the Issuers or
the Guarantors under the
Notes, this Indenture or the Note Guarantees 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. The waiver may not be effective to waive liabilities under the federal securities laws.
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Section 12.08 Governing Law.
THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 12.09 Successors.
All agreements of the Issuers in this Indenture and the Notes will bind its successors. All
agreements of the Trustee in this Indenture will bind its successors. All agreements of each
Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 10.04
hereof.
Section 12.10 Severability.
In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby.
Section 12.11 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy will be an
original, but all of them together represent the same agreement. The exchange of copies of this
Indenture and of signature pages by facsimile of PDF transmission shall constitute effective
execution and delivery of this Indenture as to the parties hereto any may be used in lieu of the
original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or
PDF shall be deemed to be their original signatures for all purposes.
Section 12.12 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 will in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
95
SIGNATURES
Dated as of April 1, 2011
CRESTWOOD MIDSTREAM PARTNERS LP |
||||
By: | /s/ William G. Manias | |||
Name: | William G. Manias | |||
Title: | Senior Vice President and Chief Financial Officer |
CRESTWOOD MIDSTREAM FINANCE CORPORATION |
||||
By: | /s/ William G. Manias | |||
Name: | William G. Manias | |||
Title: | Senior Vice President and Chief Financial Officer |
CRESTWOOD GAS SERVICES OPERATING LLC CRESTWOOD GAS SERVICES OPERATING GP LLC COWTOWN GAS PROCESSING PARTNERS L.P. By Crestwood Gas Services Operating GP LLC, its general partner COWTOWN PIPELINE PARTNERS L.P. By Crestwood Gas Services Operating GP LLC, its general partner CRESTWOOD NEW MEXICO PIPELINE LLC |
||||
By: | /s/ William G. Manias | |||
Name: | William G. Manias | |||
Title: | Senior Vice President and Chief Financial Officer | |||
CRESTWOOD PIPELINE LLC CRESTWOOD PANHANDLE PIPELINE LLC CRESTWOOD ARKANSAS PIPELINE LLC |
||||
By: | /s/ William G. Manias | |||
Name: | William G. Manias | |||
Title: | Senior Vice President and Chief Financial Officer | |||
[Signature page to Indenture]
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee |
||||
By: | /s/ Rafael Martinez | |||
Name: | Rafael Martinez | |||
Title: | Senior Associate | |||
[Signature page to Indenture]
EXHIBIT A
[Face of Note]
CUSIP/ISIN ____________
7.75% Senior Note due 2019
No. ___ | $____________* |
CRESTWOOD MIDSTREAM PARTNERS LP
CRESTWOOD MIDSTREAM FINANCE CORPORATION
CRESTWOOD MIDSTREAM FINANCE CORPORATION
promises to pay to _____________ or registered assigns
the principal sum of ____________________________
DOLLARS on [ ], 2019.
DOLLARS on [ ], 2019.
Interest Payment Dates: April 1 and October 1
Record Dates: March 15 and September 15
Dated: April 1, 2011
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CRESTWOOD MIDSTREAM PARTNERS LP By Crestwood Gas Services GP LLC, its general partner |
||||
By: | ||||
Name: | ||||
Title: | ||||
CRESTWOOD MIDSTREAM FINANCE CORPORATION |
||||
By: | ||||
Name: | ||||
Title: | ||||
This is one of the Notes referred to
in the within-mentioned Indenture.
in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST, COMPANY, N.A., as Trustee |
||||
By: | ||||
Authorized Signatory | ||||
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[Back of Note]
7.75% Senior Notes due 2019
7.75% Senior Notes due 2019
[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]
Capitalized terms used herein have the meanings assigned to them in the Indenture referred to
below unless otherwise indicated.
(1) INTEREST. Crestwood Midstream Partners LP, a Delaware limited partnership (the
Company), and Crestwood Midstream Finance Corporation, a Delaware corporation (the
Co-Issuer and, together, with the Company, the Issuers), promise to pay interest on the
principal amount of this Note at 7.75% per annum from April 1, 2011 until maturity and shall
pay the Additional Interest, if any, payable pursuant to Section 4 of the Registration
Rights Agreement referred to below. The Issuers will pay interest and Additional Interest,
if any, semi-annually in arrears 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 will accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from April 1, 2011 until the principal hereof is
due. The first Interest Payment Date shall be October 1, 2011. The Issuers will pay
interest on overdue principal at the rate borne by the Notes, and it shall pay interest on
overdue installments of interest at the same rate to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
(2) METHOD OF PAYMENT. The Issuers will pay interest on the Notes (except defaulted
interest) and Additional Interest, if any, to the Persons who are registered Holders at the
close of business on the March 15 or September 15 next 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 2.12 of the Indenture with respect to defaulted
interest. Payments in respect of Notes represented by Global Notes (including principal,
premium, if any, and interest) shall be made by wire transfer of immediately available funds
to the accounts specified by The Depository Trust Company or any successor depositary. The
Issuers will make all payments in respect of a Definitive Note (including principal,
premium, if any, and interest), at the office of each Paying Agent, except that, at the
option of the Issuers, payment of interest may be made by mailing a check to the registered
address of each Holder thereof; provided, however, that payments on the Notes may also be
made in the case of a Holder of at least $1,000,000 aggregate principal amount of Notes, by
wire transfer to a U.S. dollar account maintained by the payee with a bank in the United
States if such Holder elects payment by wire transfer by giving written notice to the
Trustee or a Paying Agent to such effect designating such account no later than 30 days
immediately preceding the relevant due date for payment (or such other date as the Trustee
may accept in its discretion). Such payment will 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, The Bank of New York Mellon Trust Company,
N.A., the Trustee under the Indenture, will act as Paying Agent and Registrar. The Issuers
may change any Paying Agent or Registrar without notice to any Holder. The Issuers or any
of the Companys Subsidiaries may act in any such capacity.
(4) INDENTURE. The Issuers issued the Notes under an Indenture dated as of April 1,
2011 (the Indenture) among the Issuers, the Guarantors and the Trustee. The terms of the
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Notes include those stated in the Indenture and those made part of the Indenture by
reference to the TIA. Terms defined in the Indenture and not defined herein have the
meanings ascribed thereto in the Indenture. The Notes are subject to all the terms and
provisions of the Indenture, and Holders are referred to the Indenture and the TIA for a
statement of such terms. To the extent any provision of this Note conflicts with the
express provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling.
The Notes are senior unsecured obligations of the Issuers. This Note is one of the
Initial Notes referred to in the Indenture. The Notes include the Initial Notes, any
Additional Notes and any Exchange Notes issued in exchange for Initial Notes or Additional
Notes pursuant to the Indenture. The Initial Notes, any Additional Notes and any Exchange
Notes are treated as a single class of securities under the Indenture. The Indenture
imposes certain limitations on the ability of the Company and its Restricted Subsidiaries
to, among other things, make certain Investments and other Restricted Payments, pay
dividends and other distributions, incur Indebtedness, enter into consensual restrictions
upon the payment of certain dividends and distributions by such Restricted Subsidiaries,
issue or sell shares of capital stock of the Company and such Restricted Subsidiaries, enter
into or permit certain transactions with Affiliates, create or incur Liens and make asset
sales. The Indenture also imposes limitations on the ability of the Issuers and each
Guarantor to consolidate or merge with or into any other Person or convey, transfer or lease
all or substantially all of its property.
To guarantee the due and punctual payment of the principal and interest on the Notes
and all other amounts payable by the Issuers under the Indenture and the Notes when and as
the same shall be due and payable, whether at maturity, by acceleration or otherwise,
according to the terms of the Notes and the Indenture, the Guarantors have, jointly and
severally, unconditionally guaranteed the Obligations of the Issuers under the Notes on a
senior unsecured basis pursuant to the terms of the Indenture.
(5) OPTIONAL REDEMPTION.
(A) On any one or more occasions prior to April 1, 2014, the Issuers may redeem
up to 35% of the aggregate principal amount of Notes issued under the Indenture
(including any Additional Notes issued after the Issue Date) at a redemption price
equal to 107.75% of the principal amount, plus accrued and unpaid interest and
Additional Interest, if any, on the Notes redeemed to, but not including, the
redemption date (subject to the right of Holders on the relevant record date to
receive interest due on the relevant interest payment date), with the net cash
proceeds of one or more Equity Offerings; provided that:
(i) at least 50% of the aggregate principal amount of Notes originally
issued under the Indenture (excluding Notes held by the Issuers and the
Companys Subsidiaries) remains outstanding immediately after the occurrence
of such redemption; and
(ii) the redemption occurs within 180 days of the date of the closing
of such Equity Offering.
(B) On any one or more occasions after April 1, 2015, the Issuers may redeem
all or a part of the Notes 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 and Additional Interest, if any, on the Notes
redeemed to, but
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not including, the applicable redemption date, if redeemed during the 12-month
period beginning on April 1 of the years indicated below (subject to the rights of
Holders of Notes on the relevant record date to receive interest due on the relevant
interest payment date):
Year | Percentage | |||
2015 |
103.8750 | % | ||
2016 |
101.9375 | % | ||
2017 and thereafter |
100.0000 | % |
Unless the Issuers default in the payment of the redemption price, interest
will cease to accrue on the Notes or portions thereof called for redemption on the
applicable redemption date.
(C) On any one of more occasions prior to April 1, 2015, the Issuers may also
redeem all or a part of the Notes, upon not less than 30 nor more than 60 days
prior notice mailed by first-class mail to each Holders registered address, at a
redemption price equal to 100% of the aggregate principal amount thereof plus the
Applicable Premium as of, and accrued and unpaid interest and Additional Interest,
if any, on the Notes to be redeemed to, but not including, the redemption date
(subject to the rights of Holders on the relevant record date to receive interest
due on the relevant interest payment date).
(D) Except pursuant to Section 3.07 of the Indenture, the Notes will not be
redeemable at the Issuers option prior to April 1, 2015. The Issuers will not,
however, be prohibited from acquiring the Notes by means other than a redemption,
whether pursuant to a tender offer, open market purchase or otherwise.
(6) MANDATORY REDEMPTION. The Issuers will not be required to make mandatory
redemption or sinking fund payments with respect to the Notes.
(7) NOTICE OF REDEMPTION. Notices of redemption will be mailed by first class mail at
least 30 but not more than 60 days before the redemption date to each Holder of Notes to be
redeemed at its registered address, except that redemption notices may be mailed more than
60 days prior to a redemption date if the notice is issued in connection with a defeasance
of the Notes or a satisfaction or discharge of the Indenture. Notes in denominations larger
than $2,000 may be redeemed in part but only in whole multiples of $1,000 in excess of
$2,000.
(8) REPURCHASE AT THE OPTION OF HOLDER.
(A) Upon the occurrence of Change of Control, the Company will make an offer (a
Change of Control Offer) to each Holder to repurchase all or any part (equal to
$2,000 or an integral multiple of $1,000 in excess of $2,000) of that Holders Notes
at a purchase price in cash equal to 101% of the aggregate principal amount of Notes
repurchased plus accrued and unpaid interest and Additional Interest, if any, on the
Notes repurchased to, but not including, the date of purchase (subject to the rights
of Holders of Notes on the relevant record date to receive interest due on the
relevant interest payment date). Within 30 days following any Change of Control,
the Company will mail a notice to each Holder setting forth the procedures governing
the Change of Control Offer as required by the Indenture.
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(B) In accordance with Section 4.10 of the Indenture, the Company will be
required to offer to purchase the Notes upon certain Asset Sales.
(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without
coupons in denominations of $2,000 and integral multiples of $1,000 in excess of $2,000.
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 Issuers may require a Holder
to pay any taxes and fees required by law or permitted by the Indenture. The Issuers 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
Issuers 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.
(10) PERSONS DEEMED OWNERS. The registered Holder may be treated as its owner for all
purposes.
(11) AMENDMENT, SUPPLEMENT AND WAIVER. The provisions governing amendment, supplement
and waiver of any provision of the Indenture, the Notes or the Note Guarantees are set forth
in Article 9 of the Indenture.
(12) DEFAULTS AND REMEDIES. The Events of Default relating to the Notes are defined in
Section 6.01 of the Indenture.
(13) DISCHARGE AND DEFEASANCE. Subject to certain conditions, the Issuers at any time
may terminate some or all of its obligations under the Notes, the Note Guarantees and the
Indenture if the Issuers deposit with the Trustee money or Government Securities for the
payment of principal of, premium on, if any, and interest or Additional Interest, if any, on
the Notes to redemption or maturity, as the case may be.
(14) TRUSTEE DEALINGS WITH ISSUERS. The Trustee, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the Issuers or
their Affiliates, and may otherwise deal with the Issuers or their Affiliates, as if it were
not the Trustee.
(15) NO RECOURSE AGAINST OTHERS. To the extent permitted by law no director, manager,
officer, employee, incorporator, member, stockholder or partner of either of the Issuers,
any parent entity of the Company or any Subsidiary of the Company, as such, will have any
liability for any obligations of the Issuers or the Guarantors under the Notes, the Note
Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance of the
Notes.
(16) AUTHENTICATION. This Note will not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.
(17) ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT
TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
A-6
(18) ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE
NOTES. In addition to the rights provided to Holders under the Indenture, Holders of
Restricted Global Notes and Restricted Definitive Notes will have all the rights set forth
in the Registration Rights Agreement dated as of April 1, 2011, among the Issuers, the
Guarantors and the Initial Purchasers named therein or, in the case of Additional Notes,
Holders of Restricted Global Notes and Restricted Definitive Notes will have the rights set
forth in one or more registration rights agreements, if any, among the Issuers, the
Guarantors and the other parties thereto, relating to rights given by the Issuers and the
Guarantors to the purchasers of any Additional Notes (collectively, the Registration Rights
Agreement).
(19) 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.
(20) GOVERNING LAW. THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Issuers will furnish to any Holder upon written request and without charge a copy of the
Indenture and/or the Registration Rights Agreement. Requests may be made to:
Crestwood Midstream Partners LP
717 Texas Avenue, Suite 3150
Houston, Texas 77002
Facsimile No.: (832) 519-2250
Attention: Chief Financial Officer
717 Texas Avenue, Suite 3150
Houston, Texas 77002
Facsimile No.: (832) 519-2250
Attention: Chief Financial Officer
A-7
Assignment Form
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
|
||
(Insert assignees legal name) |
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 in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
A-8
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 appropriate box below:
o
Section 4.10 o 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) |
Tax Identification No.: | ||||
Signature Guarantee*: _________________________
* | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
A-9
Schedule of Exchanges of Interests in the Global Note *
The following exchanges of a part of this Global Note for an interest in another Global
Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for
an interest in this Global Note, have been made:
Principal Amount | ||||||||||||||||
Amount of decrease | Amount of increase | of this Global Note | Signature of | |||||||||||||
in Principal Amount | in Principal Amount | following such | authorized officer | |||||||||||||
of | of | decrease | of Trustee or | |||||||||||||
Date of Exchange | this Global Note | this Global Note | (or increase) | Custodian | ||||||||||||
* | This schedule should be included only if the Note is issued in global form. |
A-10
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Crestwood Midstream Partners LP
717 Texas Avenue, Suite 3150
Houston, Texas 77002
Facsimile No.: (832) 519-2250
Attention: Chief Financial Officer
717 Texas Avenue, Suite 3150
Houston, Texas 77002
Facsimile No.: (832) 519-2250
Attention: Chief Financial Officer
The Bank of New York Mellon Trust Company, N.A.
601 Travis Street, 16th Floor
Houston, Texas 77002
Facsimile No.: (713) 483-6954
Attention: Corporate Trust Administration
601 Travis Street, 16th Floor
Houston, Texas 77002
Facsimile No.: (713) 483-6954
Attention: Corporate Trust Administration
Re: 7.75% Senior Notes due 2019
Reference is hereby made to the Indenture, dated as of April 1, 2011 (the Indenture), among
Crestwood Midstream Partners LP, a Delaware limited partnership (the Company), and Crestwood
Midstream Finance Corporation, a Delaware corporation (the Co-Issuer and, together, with the
Company, the Issuers), the Guarantors party thereto and The Bank of New York Mellon Trust
Company, N.A., as trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
___________________, (the Transferor) owns and proposes to transfer the Note[s] or interest
in such Note[s] specified in Annex A hereto, in the principal amount of $___________ in such
Note[s] or interests (the Transfer), to ___________________________ (the Transferee), as
further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby
certifies that:
[CHECK ALL THAT APPLY]
1. Check if Transferee will take delivery of a beneficial interest in the 144A Global
Note or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is being effected
pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the
Securities Act), and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor reasonably
believes is purchasing the beneficial interest or Definitive Note for its own account, or for one
or more accounts with respect to which such Person exercises sole investment discretion, and such
Person and each such account is a qualified institutional buyer within the meaning of Rule 144A
in a transaction meeting the requirements of Rule 144A, and such Transfer is in compliance with any
applicable blue sky securities laws of any state of the United States. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note and
in the Indenture and the Securities Act.
2. Check if Transferee will take delivery of a beneficial interest in the Regulation
S Global Note or a Restricted Definitive Note pursuant to Regulation S. The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and,
accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a
Person in the United States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a
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designated offshore securities market and neither such Transferor nor any Person acting on its
behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no
directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not part of a plan or
scheme to evade the registration requirements of the Securities Act and (iv) if the proposed
transfer is being made prior to the expiration of the Restricted Period, the transfer is not being
made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). Upon consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S
Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.
3. Check and complete if Transferee will take delivery of a beneficial interest in a
Restricted Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or
Regulation S. The Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws
of any state of the United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) such Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act;
or
(b) such Transfer is being effected to the Issuers or a subsidiary of the Company
thereof;
or
(c) ¨ such Transfer is being effected pursuant to an effective registration
statement under the Securities Act and in compliance with the prospectus delivery
requirements of the Securities Act.
4. Check if Transferee will take delivery of a beneficial interest in an Unrestricted
Global Note or of an Unrestricted Definitive Note.
(a) Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected
pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with the Securities Act.
Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on
Restricted Definitive Notes and in the Indenture.
(b) Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance
with the transfer restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred
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beneficial interest or Definitive Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on
Restricted Definitive Notes and in the Indenture.
(c) Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected
pursuant to and in compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any State of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your benefit and the benefit
of the Issuers.
[Insert Name of Transferor] |
||||
By: | ||||
Name: | ||||
Title: | ||||
Dated: _______________________
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. | The Transferor owns and proposes to transfer the following: |
[CHECK ONE OF (a) OR (b)]
(A) | o a beneficial interest in the: |
(i) | o 144A Global Note (CUSIP 226373 AA6), or | ||
(ii) | o Regulation S Global Note (CUSIP U1300R AA0), or |
(B) | o a Restricted Definitive Note. |
2. | After the Transfer the Transferee will hold: [CHECK ONE] |
(A) | o a beneficial interest in the: |
(i) | o 144A Global Note (CUSIP 226373 AA6), or | ||
(ii) | o Regulation S Global Note (CUSIP U1300R AA0), or | ||
(iii) | o Unrestricted Global Note (CUSIP 226373 AB4); or |
(B) | o a Restricted Definitive Note; or | ||
(C) | o an Unrestricted Definitive Note, |
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Crestwood Midstream Partners LP
717 Texas Avenue, Suite 3150
Houston, Texas 77002
Facsimile No.: (832) 519-2250
Attention: Chief Financial Officer
717 Texas Avenue, Suite 3150
Houston, Texas 77002
Facsimile No.: (832) 519-2250
Attention: Chief Financial Officer
The Bank of New York Mellon Trust Company, N.A.
601 Travis Street, 16th Floor
Houston, Texas 77002
Facsimile No.: (713) 483-6954
Attention: Corporate Trust Administration
601 Travis Street, 16th Floor
Houston, Texas 77002
Facsimile No.: (713) 483-6954
Attention: Corporate Trust Administration
Re: 7.75% Senior Notes due 2019
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of April 1, 2011 (the Indenture), among
Crestwood Midstream Partners LP, a Delaware limited partnership (the Company), and Crestwood
Midstream Finance Corporation, a Delaware corporation (the Co-Issuer and, together, with the
Company, the Issuers), the Guarantors party thereto and The Bank of New York Mellon Trust
Company, N.A., as trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
__________________________, (the Owner) owns and proposes to exchange the Note[s] or
interest in such Note[s] specified herein, in the principal amount of $____________ in such Note[s]
or interests (the Exchange). In connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global
Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note
(a) o Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial
interest in an Unrestricted Global Note. In connection with the Exchange of the Owners beneficial
interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an
equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owners own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance
with the Securities Act of 1933, as amended (the Securities Act), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted
Global Note is being acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
(b) o Check if Exchange is from beneficial interest in a Restricted Global Note to
Unrestricted Definitive Note. In connection with the Exchange of the Owners beneficial interest
in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Definitive Note is being acquired for the Owners own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in order to maintain
compliance with the
C-1
Securities Act and (iv) the Definitive Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(c) o Check if Exchange is from Restricted Definitive Note to beneficial interest in an
Unrestricted Global Note. In connection with the Owners Exchange of a Restricted Definitive Note
for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owners own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are not required in order
to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired
in compliance with any applicable blue sky securities laws of any state of the United States.
(d) o Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note.
In connection with the Owners Exchange of a Restricted Definitive Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired
for the Owners own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes
for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes
(a) o Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted
Definitive Note. In connection with the Exchange of the Owners beneficial interest in a
Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner
hereby certifies that the Restricted Definitive Note is being acquired for the Owners own account
without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the
Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and
in the Indenture and the Securities Act.
(b) o Check if Exchange is from Restricted Definitive Note to beneficial interest in a
Restricted Global Note. In connection with the Exchange of the Owners Restricted Definitive Note
for a beneficial interest in the [CHECK ONE] 144A Global Note, Regulation S Global Note with an
equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owners own account without transfer and (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in
accordance with the Securities Act, and in compliance with any applicable blue sky securities laws
of any state of the United States. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note
and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit and the benefit
of the Issuers.
C-2
[Insert Name of Transferor] |
||||
By: | ||||
Name: | ||||
Title: | ||||
Dated: ______________________
C-3
EXHIBIT D
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
SUPPLEMENTAL INDENTURE (this Supplemental Indenture), dated as of ________________, 201__,
among __________________ (the New Guarantor), a __________________ and a Domestic Subsidiary of
Crestwood Midstream Partners LP, a Delaware limited partnership (the Company), and Crestwood
Midstream Finance Corporation, a Delaware corporation (the Co-Issuer and, together, with the
Company, the Issuers), each other existing Guarantor under the Indenture referred to below and
The Bank of New York Mellon Trust Company, N.A., as trustee under the Indenture referred to below
(the Trustee).
WITNESSETH
WHEREAS, the Issuers and the existing Guarantors have heretofore executed and delivered to the
Trustee an indenture (as amended, or supplemented, the Indenture), dated as of April 1, 2011,
providing for the issuance of the Issuers 7.75% Senior Notes due 2019 (the Notes);
WHEREAS, Section 4.15 of the Indenture provides that under the circumstances set forth
therein, the New Guarantor shall execute and deliver to the Trustee a supplemental indenture
pursuant to which the New Guarantor shall unconditionally guarantee all of the Issuers Obligations
under the Indenture and the Notes on the terms and conditions set forth herein (the Note
Guarantee); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the Issuers and the existing
Guarantors are 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 New Guarantor, the Issuers, the
other Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of
the Holders as follows:
1. DEFINED TERMS. Defined terms used herein without definition shall have the meanings
assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The New Guarantor hereby unconditionally Guarantees, jointly and
severally with all existing Guarantors (if any), on the terms and subject to the conditions set
forth in Article 10 of the Indenture and agrees to be bound by all other applicable provisions of
the Indenture and the Notes and to perform all of the obligations and agreements of a Guarantor
under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer,
employee, incorporator, stockholder, member or partner of either of the Issuers, any parent entity
of the Company or any Subsidiary of the Company, as such, will have any liability for any
obligations of the Issuers or the Guarantors under the Notes, this Indenture, the Note Guarantees
or for any claim based on, in respect of, or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Notes. The waiver may not be effective to waive
liabilities under the federal securities laws.
4. NOTICES. All notices or other communications to the New Guarantor shall be given as
provided in Section 12.02 of the Indenture.
D-1
5. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURES PART OF INDENTURE. Except as expressly
amended hereby, the Indenture is in all respects ratified and confirmed and all the terms,
conditions and provisions thereof shall remain in full force and effect. This Supplemental
Indenture shall form a part of the Indenture for all purposes, and every holder of Notes heretofore
or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW. THE INDENTURE, THIS SUPPLEMENTAL INDENTURE, THE NOTES AND THE NOTE
GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
7. 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. The
exchange of copies of this Indenture and of signature pages by facsimile of PDF transmission shall
constitute effective execution and delivery of this Indenture as to the parties hereto and may be
used in lieu of the original Indenture for all purposes. Signatures of the parties hereto
transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
8. EFFECT OF HEADINGS. The Section headings of this Supplemental Indenture have been inserted
for convenience of reference only and are not to be considered part of this Supplemental Indenture
or the Indenture and will in no way modify or restrict any of the terms or provisions hereof or
thereof.
9. SEVERABILITY. In case any provision in this Supplemental Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions will not in any way be affected or impaired thereby.
10. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity
or sufficiency of this Supplemental Indenture. The recitals and statements herein are deemed to be
those of the Company and not those of the Trustee, and the Trustee assumes no responsibility for
their correctness.
D-2
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: ____________, 20__
[NEW GUARANTOR] |
||||
By: | ||||
Name: | ||||
Title: | ||||
[COMPANY] |
||||
By: | ||||
Name: | ||||
Title: | ||||
[EXISTING GUARANTORS] |
||||
By: | ||||
Name: | ||||
Title: | ||||
[TRUSTEE] |
||||
By: | ||||
Authorized Signatory | ||||
D-3