Exhibit 4.1
EXECUTION COPY
STEWART ENTERPRISES, INC.
6.50% SENIOR NOTES DUE 2019
Indenture
Dated as of April 18, 2011
U.S.
Bank National Association
as Trustee
CROSS-REFERENCE TABLE*
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Trust Indenture |
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Act Section |
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Indenture Section |
310 |
(a)(1) |
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7.10 |
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(a)(2) |
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7.10 |
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(a)(3) |
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N.A. |
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(a)(4) |
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N.A. |
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(a)(5) |
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7.10 |
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(b) |
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7.10 |
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(c) |
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N.A. |
311 |
(a) |
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7.11 |
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(b) |
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7.11 |
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(c) |
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N.A. |
312 |
(a) |
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2.06 |
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(b) |
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12.03 |
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(c) |
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12.03 |
313 |
(a) |
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7.06, 12.03 |
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(b)(1) |
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N.A. |
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(b)(2) |
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7.06, 7.07 |
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(c) |
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7.06, 12.02 |
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(d) |
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7.06 |
314 |
(a) |
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7.06, 12.05 |
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(b) |
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N.A. |
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(c)(1) |
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N.A. |
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(c)(2) |
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N.A. |
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(c)(3) |
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N.A. |
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(d) |
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N.A. |
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(e) |
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12.05 |
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(f) |
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N.A. |
315 |
(a) |
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N.A. |
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(b) |
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N.A. |
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(c) |
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N.A. |
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(d) |
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N.A. |
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(e) |
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N.A. |
316 |
(a) (last sentence) |
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N.A. |
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(a)(1)(A) |
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N.A. |
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(a)(1)(B) |
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N.A. |
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(a)(2) |
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N.A. |
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(b) |
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N.A. |
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(c) |
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12.13 |
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N.A. |
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means not applicable. |
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* |
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This Cross-Reference Table is not part of the Indenture. |
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Trust Indenture |
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Act Section |
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Indenture Section |
317 |
(a)(1) |
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N.A. |
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(a)(2) |
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N.A. |
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(b) |
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N.A. |
318 |
(a) |
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N.A. |
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(b) |
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N.A. |
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(c) |
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12.01 |
ii
TABLE OF CONTENTS
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Page |
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CROSS-REFERENCE TABLE |
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i |
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ARTICLE ONE
DEFINITIONS AND INCORPORATION
BY REFERENCE
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Section 1.01 Definitions |
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1 |
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Section 1.02 Other Definitions |
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14 |
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Section 1.03 Incorporation by Reference of Trust Indenture Act |
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14 |
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Section 1.04 Rules of Construction |
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15 |
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ARTICLE TWO
THE NOTES
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Section 2.01 Form and Dating |
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15 |
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Section 2.02 Execution and Authentication |
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16 |
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Section 2.03 Methods of Receiving Payments on the Notes |
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17 |
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Section 2.04 Registrar and Paying Agent |
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17 |
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Section 2.05 Paying Agent to Hold Money in Trust |
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18 |
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Section 2.06 Holder Lists |
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18 |
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Section 2.07 Transfer and Exchange |
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18 |
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Section 2.08 Replacement Notes |
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31 |
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Section 2.09 Outstanding Notes |
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32 |
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Section 2.10 Treasury Notes |
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32 |
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Section 2.11 Temporary Notes |
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32 |
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Section 2.12 Cancellation |
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32 |
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Section 2.13 Defaulted Interest |
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33 |
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Section 2.14 CUSIP Numbers |
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33 |
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ARTICLE THREE
REDEMPTION AND PREPAYMENT;
SATISFACTION AND DISCHARGE
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Section 3.01 Notices to Trustee |
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33 |
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Section 3.02 Selection of Notes to Be Redeemed |
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34 |
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Section 3.03 Notice of Redemption |
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34 |
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Section 3.04 Effect of Notice of Redemption |
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35 |
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Section 3.05 Deposit of Redemption Price |
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35 |
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Section 3.06 Notes Redeemed in Part |
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35 |
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Section 3.07 Optional Redemption |
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36 |
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Section 3.08 Mandatory Redemption |
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36 |
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Section 3.09 Repurchase Offer |
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36 |
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Section 3.10 Application of Trust Money |
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38 |
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iii
ARTICLE FOUR
COVENANTS
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Page |
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Section 4.01 Payment of Notes |
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39 |
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Section 4.02 Maintenance of Office or Agency |
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39 |
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Section 4.03 Reports |
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40 |
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Section 4.04 Compliance Certificate |
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40 |
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Section 4.05 Taxes |
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41 |
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Section 4.06 Stay, Extension and Usury Laws |
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41 |
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Section 4.07 Liens |
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41 |
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Section 4.08 Offer to Repurchase upon a Change of Control |
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42 |
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Section 4.09 Payments for Consent |
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43 |
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Section 4.10 Sale and Leaseback Transactions |
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43 |
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Section 4.11 Guarantees |
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43 |
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ARTICLE FIVE
SUCCESSORS
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Section 5.01 Merger Consolidation or Sale of Assets |
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44 |
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ARTICLE SIX
DEFAULTS AND REMEDIES
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Section 6.01 Events of Default |
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44 |
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Section 6.02 Acceleration |
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46 |
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Section 6.03 Other Remedies |
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46 |
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Section 6.04 Waiver of Past Defaults |
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47 |
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Section 6.05 Control by Majority |
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47 |
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Section 6.06 Limitation on Suits |
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47 |
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Section 6.07 Rights of Holders of Notes to Receive Payment |
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48 |
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Section 6.08 Collection Suit by Trustee |
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48 |
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Section 6.09 Trustee May File Proofs of Claim |
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48 |
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Section 6.10 Priorities |
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49 |
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Section 6.11 Undertaking for Costs |
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49 |
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ARTICLE SEVEN
TRUSTEE
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Section 7.01 Duties of Trustee |
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49 |
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Section 7.02 Certain Rights of Trustee |
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50 |
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Section 7.03 Individual Rights of Trustee |
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52 |
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Section 7.04 Trustees Disclaimer |
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52 |
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Section 7.05 Notice of Defaults |
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52 |
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Section 7.06 Reports by Trustee to Holders of the Notes |
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53 |
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Section 7.07 Compensation and Indemnity |
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53 |
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Section 7.08 Replacement of Trustee |
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54 |
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Section 7.09 Successor Trustee by Merger, Etc. |
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55 |
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iv
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Page |
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Section 7.10 Eligibility; Disqualification |
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55 |
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Section 7.11 Preferential Collection of Claims Against Company |
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55 |
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ARTICLE EIGHT
DEFEASANCE AND COVENANT DEFEASANCE
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Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance |
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55 |
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Section 8.02 Legal Defeasance and Discharge |
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56 |
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Section 8.03 Covenant Defeasance |
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56 |
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Section 8.04 Conditions to Legal or Covenant Defeasance |
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57 |
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Section 8.05 Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions |
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58 |
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Section 8.06 Repayment to the Company |
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59 |
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Section 8.07 Reinstatement |
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59 |
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ARTICLE NINE
AMENDMENT, SUPPLEMENT AND WAIVER
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Section 9.01 Without Consent of Holders of Notes |
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59 |
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Section 9.02 With Consent of Holders of Notes |
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60 |
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Section 9.03 Compliance with Trust Indenture Act |
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62 |
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Section 9.04 Revocation and Effect of Consents |
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62 |
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Section 9.05 Notation on or Exchange of Notes |
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62 |
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Section 9.06 Trustee to Sign Amendments, Etc. |
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63 |
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ARTICLE TEN
NOTE GUARANTEES
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Section 10.01 Guarantee |
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63 |
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Section 10.02 Limitation on Guarantor Liability |
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64 |
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Section 10.03 Execution and Delivery of Note Guarantee |
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64 |
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Section 10.04 Releases Following Sale of Assets |
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65 |
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ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
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Section 11.01 Satisfaction and Discharge |
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65 |
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Section 11.02 Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions |
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66 |
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Section 11.03 Repayment to the Company |
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66 |
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ARTICLE TWELVE
MISCELLANEOUS
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Section 12.01 Trust Indenture Act Controls |
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67 |
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Section 12.02 Notices |
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67 |
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Section 12.03 Communication by Holders of Notes with Other Holders of Notes |
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68 |
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Section 12.04 Certificate and Opinion as to Conditions Precedent |
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68 |
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v
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Page |
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Section 12.05 Statements Required in Certificate or Opinion |
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68 |
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Section 12.06 Rules by Trustee and Agents |
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69 |
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Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders |
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69 |
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Section 12.08 Governing Law |
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69 |
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Section 12.09 Consent to Jurisdiction |
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69 |
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Section 12.10 No Adverse Interpretation of Other Agreements |
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70 |
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Section 12.11 Successors |
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70 |
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Section 12.12 Severability |
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70 |
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Section 12.13 Counterpart Originals |
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70 |
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Section 12.14 Acts of Holders |
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70 |
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Section 12.15 Benefit of Indenture |
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71 |
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Section 12.16 Table of Contents, Headings, Etc. |
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71 |
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EXHIBITS
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Exhibit A1
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FORM OF NOTE |
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Exhibit A2
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FORM OF REGULATION S TEMPORARY GLOBAL NOTE |
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Exhibit B
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FORM OF CERTIFICATE OF TRANSFER |
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Exhibit C
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FORM OF CERTIFICATE OF EXCHANGE |
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Exhibit D
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FORM OF NOTATION OF GUARANTEE |
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Exhibit E
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FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT
GUARANTORS |
vi
INDENTURE dated as of April 18, 2011 among Stewart Enterprises, Inc., a Louisiana corporation
(the Company), the Guarantors and U.S. Bank National Association, a national banking association,
as trustee.
The Company (as defined below), the Guarantors and the Trustee (as defined below) agree as
follows for the benefit of each other and for the equal and ratable benefit of the Holders (as
defined below) of the 6.50% Senior Notes due 2019:
ARTICLE ONE
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
144A Global Note means a global note substantially in the form of Exhibit A1 hereto bearing
the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and
registered in the name of, the Depositary or its nominee that shall be issued in a denomination
equal to the outstanding principal amount at maturity of the Notes sold in reliance on Rule 144A.
Additional Interest means all additional interest owing on the Notes pursuant to the
Registration Rights Agreement.
Additional Notes means an unlimited maximum aggregate principal amount of Notes (other than
the Notes issued on the date hereof) issued under this Indenture in accordance with Section 2.02
hereof.
Affiliate of any specified Person means (1) any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person
or (2) any executive officer or director of such specified Person. For purposes of this
definition, control, as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or otherwise. For
purposes of this definition, the terms controlling, controlled by and under common control
with shall have correlative meanings.
Agent means any Registrar, Paying Agent or co-registrar.
Applicable Premium means, with respect to a Note at any redemption date, the greater of (1)
1.00% of the principal amount of such Note and (2) the excess of (a) the present value at such
redemption date of (i) the redemption price of such Note on April 15, 2014 (such redemption price
being set forth in the table in Section 3.07(a)) plus (ii) all remaining required interest payments
due on such Note through April 15, 2014 (excluding accrued but unpaid interest to the redemption
date), computed using a discount rate equal to the Treasury Rate 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.
Attributable Debt in respect of a sale and leaseback transaction of the type referred to in
Section 4.10 hereof means, at the time of determination, the present value of the obligation of the
lessee for net rental payments during the remaining term of the lease included in such a sale and
leaseback transaction, including any period for which such lease has been extended or may, at the
option of the lessor, be extended. Such present value shall be calculated using a discount rate
equal to the rate of interest implicit in such transaction, determined in accordance with GAAP.
Bankruptcy Law means Title 11, U.S. Code or any similar federal or state law for the relief
of debtors.
Beneficial Owner has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under
the Exchange Act, except that in calculating the beneficial ownership of any particular person
(as that term is used in Section 13(d)(3) of the Exchange Act), such person shall be deemed to
have beneficial ownership of all securities that such person has the right to acquire by
conversion or exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms Beneficially Owns and
Beneficially Owned shall have a corresponding meaning.
Board of Directors means (i) with respect to a corporation, the board of directors of the
corporation; (ii) with respect to a partnership, the board of directors of the general partner of
the partnership; and (iii) with respect to any other Person, the board or committee of such Person
serving a similar function.
Board Resolution means a resolution certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of Directors of the Company and to be in full
force and effect on the date of such certification.
Broker-Dealer has the meaning set forth in the Registration Rights Agreement.
Business Day means any day other than a Legal Holiday.
Capital Lease Obligations means, at the time any determination thereof is to be made, the
amount of the liability in respect of a capital lease that would at that time be required to be
capitalized on a balance sheet in accordance with GAAP.
Capital Stock means (i) in the case of a corporation, corporate stock; (ii) in the case of
an association or a business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock; (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or limited); and (iv) 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.
2
Change of Control means the occurrence of any of the following: (i) the direct or indirect
sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in
one or a series of related transactions, of all or substantially all of the properties or assets of
the Company and its Subsidiaries, taken as a whole, to any person (as that term is used in
Section 13(d)(3) of the Exchange Act); (ii) the adoption of a plan relating to the liquidation or
dissolution of the Company; (iii) any person or group (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), other than the Principals, becomes the ultimate Beneficial Owner,
directly or indirectly, of 35% or more of the voting power of the Voting Stock of the Company; (iv)
the first day on which a majority of the members of the Board of Directors of the Company are not
Continuing Directors; or (v) the Company consolidates with, or merges with or into, any Person, or
any Person consolidates with, or merges with or into the Company, in any such event pursuant to a
transaction in which any of the outstanding Voting Stock of the Company or such other Person is
converted into or exchanged for cash, securities or other property, other than any such transaction
where (A) the Voting Stock of the Company outstanding immediately prior to such transaction is
converted into or exchanged for Voting Stock (other than Disqualified Stock) of the surviving or
transferee Person constituting a majority of the outstanding shares of such Voting Stock of such
surviving or transferee Person (immediately after giving effect to such issuance) or, if the
Company survives the merger, the Voting Stock of the Company outstanding immediately prior to such
transaction constitutes a majority of the outstanding shares of Voting Stock of the Company
immediately after the transaction, and (B) immediately after such transaction, no person or
group (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) other than the
Principals, becomes, directly or indirectly, the ultimate Beneficial Owner of 35% or more of the
voting power of the Voting Stock of the surviving or transferee Person.
Clearstream means Clearstream Banking, société anonyme, Luxembourg.
Company means Stewart Enterprises, Inc.
Consolidated Adjusted Net Tangible Assets of any Person means, as of any date, the amount
which, in accordance with GAAP, would be set forth under the caption Total Assets (or any like
caption) on a consolidated balance sheet of such Person and its Subsidiaries, as of the end of the
most recently ended fiscal quarter for which financial statements have been provided to Holders of
the Notes pursuant to Section 4.03 hereof, less (1) all intangible assets, including, without
limitation, goodwill, organization costs, patents, trademarks, copyrights, franchises, and research
and development costs; (2) preneed funeral receivables and trust investments, preneed cemetery
receivables and trust investments, deferred charges and cemetery perpetual care trust investments
(or, in each case, its equivalent); and (3) current liabilities.
Continuing Directors means, as of any date of determination, any member of the Board of
Directors of the Company who: (i) was a member of such Board of Directors on the date hereof; or
(ii) was nominated for election or elected to such Board of Directors with the approval of a
majority of the Continuing Directors who were members of such Board of Directors at the time of
such nomination or election.
3
Corporate Trust Office of the Trustee shall be at the address of the Trustee specified in
Section 12.02 hereof or such other address as to which the Trustee may give notice to the Company.
Credit Facilities means one or more debt facilities (including, without limitation, the
existing senior secured revolving credit facility) or commercial paper facilities, in each case
with banks or other lenders providing for revolving credit loans, term loans, receivables financing
or letters of credit, in each case as amended, restated, modified, renewed, refunded, replaced or
refinanced in whole or in part from time to time; provided, however, that any such amendment,
restatement, modification, renewal, refunding, replacement or refinancing is, in each case, with
banks or other lenders providing for revolving credit loans, term loans, receivables financing or
letters of credit.
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 2.07 hereof, substantially in the form of Exhibit A1 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 2.04 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.
Disqualified Stock means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each case at the option
of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is one year after the date on which the
Notes mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute
Disqualified Stock solely because the holders thereof have the right to require the Company to
repurchase such Capital Stock upon the occurrence of a change of control will not constitute
Disqualified Stock if (1) the change of control provisions applicable to such Capital Stock are
no more favorable to the holders of such Capital Stock than the provision in Section 4.08 hereof
and (2) such Capital Stock specifically provides that such Person will not repurchase or redeem any
such stock pursuant to such provision prior to the Companys repurchase of such Notes as are
required to be repurchased pursuant to Section 4.08. The term Disqualified Stock shall also
include any options, warrants or other rights that are convertible into Disqualified Stock or that
are redeemable at the option of the holder, or required to be redeemed, prior to the date that is
one year after the date on which the Notes mature.
4
Domestic Subsidiary means any Subsidiary of the Company that was formed under the laws of
the United States or any state thereof or the District of Columbia.
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 in accordance with Section
2.07(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 Subsidiary means (a) Investors Trust, Inc., for so long as it is a regulated trust
company; (b) West Lawn Cemetery, for so long as it is subject to regulatory restrictions
prohibiting the execution of a Note Guarantee; (c) each of Fine Finishes, Inc. and Taylor M.
Simpson Co., for so long as it is inactive; (d) each of Lake Lawn Park, LLC, Rest Hills Memorial
Park, Inc. and Heavens Pets at Lakelawn Metairie, LLC, for so long as it is an immaterial
non-wholly owned Domestic Subsidiary; and (e) any future Domestic Subsidiary (i) for so long as it
is subject to regulatory restrictions that prohibit the execution of a Note Guarantee, or (ii) that
is an immaterial non-wholly owned Domestic Subsidiary, each as certified to the Trustee pursuant to
an Officers Certificate.
Fair Market Value means the price that would be paid in an arms-length transaction between
an informed and willing seller under no compulsion to sell and an informed and willing buyer under
no compulsion to buy, as determined in good faith by the Board of Directors.
Funded Debt means Indebtedness for money borrowed which by its terms matures at or is
extendible or renewable at the option of the obligor to a date more than 12 months after the date
of the creation of such Indebtedness.
GAAP means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants, the opinions and pronouncements of the Public Company Accounting Oversight Board and
the statements and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entities as have been approved by a significant segment of the accounting
profession, which are in effect on the Issue Date.
Global Note Legend means the legend set forth in Section 2.07(g)(ii), 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, substantially in the form of Exhibit A1 or A2
5
hereto, as appropriate, issued in accordance with Section 2.01, 2.07(b), 2.07(d) or 2.07(f) of
this Indenture.
Government Securities means securities that are direct obligations of the United States of
America for the timely payment of which its full faith and credit is pledged.
Guarantee means, as to any Person, a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or indirect, in any manner
including, without limitation, by way of a pledge of assets or through letters of credit or
reimbursement agreements in respect thereof, of all or any part of any Indebtedness of another
Person.
Guarantors means: (i) each direct or indirect Domestic Subsidiary of the Company (other
than Excluded Subsidiaries) on the Issue Date; and (ii) any other Subsidiary that executes a Note
Guarantee in accordance with the provisions of this Indenture; and their respective successors and
assigns until released from their obligations under their Note Guarantees and this Indenture in
accordance with the terms of this Indenture.
Hedging Obligations means, with respect to any specified Person, the obligations of such
Person under: (i) interest rate swap agreements, interest rate cap agreements, interest rate collar
agreements and other agreements or arrangements with respect to exposure to interest rates; (ii)
commodity swap agreements, commodity option agreements, forward contracts and other agreements or
arrangements with respect to exposure to commodity prices; and (iii) foreign exchange contracts,
currency swap agreements and other agreements or arrangements with respect to exposure to foreign
currency exchange rates.
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:
(i) in respect of borrowed money;
(ii) evidenced by bonds, notes, debentures or similar instruments;
(iii) evidenced by letters of credit (or reimbursement agreements in respect thereof),
but excluding obligations with respect to letters of credit (including trade letters of
credit) securing obligations (other than obligations described in clauses (i) or (ii) above
or clauses (v), (vi) or (viii) below) entered into in the ordinary course of business of
such Person to the extent such letters of credit are not drawn upon or, if drawn upon, to
the extent such drawing is reimbursed no later than the third Business Day following receipt
by such Person of a demand for reimbursement;
(iv) in respect of bankers acceptances;
(v) in respect of Capital Lease Obligations and Attributable Debt;
6
(vi) in respect of the balance deferred and unpaid of the purchase price of any
property, except any such balance that constitutes an accrued expense or trade payable;
(vii) representing Hedging Obligations, other than Hedging Obligations that are
incurred for the purpose of fixing, hedging or swapping interest rate, commodity price or
foreign currency exchange rate risk (or to reverse or amend any such agreements previously
made for such purposes), and not for speculative purposes, and that do not increase the
Indebtedness of the obligor outstanding at any time other than as a result of fluctuations
in interest rates, commodity prices or foreign currency exchange rates or by reason of fees,
indemnities and compensation payable thereunder; or
(viii) representing Disqualified Stock valued at the greater of its voluntary or
involuntary maximum fixed repurchase price plus accrued dividends;
if and to the extent any of the preceding items (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in
accordance with GAAP. In addition, the term Indebtedness includes (x) all Indebtedness of others
secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed
by the specified Person), provided that the amount of such Indebtedness shall be the lesser of (A)
the Fair Market Value of such asset at such date of determination and (B) the amount of such
Indebtedness, and (y) to the extent not otherwise included, the Guarantee by the specified Person
of any Indebtedness of any other Person. For purposes hereof, the maximum fixed repurchase price
of any Disqualified Stock which does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Disqualified Stock as if such Disqualified Stock were repurchased
on any date on which Indebtedness shall be required to be determined pursuant to this Indenture,
and if such price is based upon, or measured by, the Fair Market Value of such Disqualified Stock,
such fair market shall be determined in good faith by the Board of Directors of the issuer of such
Disqualified Stock.
The amount of any Indebtedness outstanding as of any date shall be the outstanding balance at
such date of all unconditional obligations as described above and, with respect to contingent
obligations, the maximum liability upon the occurrence of the contingency giving rise to the
obligation, and shall be: (i) the accreted value thereof, in the case of any Indebtedness issued
with original issue discount; and (ii) the principal amount thereof, together with any interest
thereon that is more than 30 days past due, in the case of any other Indebtedness;
provided that Indebtedness shall not include: (a) any liability for federal, state, local or other
taxes, (b) performance, surety or appeal bonds provided in the ordinary course of business, (c) any
liability arising from the honoring by a bank or other financial institution of a check, draft or
similar instrument drawn against insufficient funds in the ordinary course of business, provided,
however, that such liability is extinguished within five Business Days of its incurrence, or (d)
agreements providing for indemnification, adjustment of purchase price or similar obligations, or
Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the
Company or any of its Subsidiaries pursuant to such agreements, in any case incurred in connection
with the disposition or acquisition of any business, assets or Subsidiary (other than Guarantees of
Indebtedness incurred by any Person acquiring all or any portion of such business,
7
assets or Subsidiary for the purpose of financing such acquisition), so long as, in the case of a
disposition, the principal amount does not exceed the gross proceeds actually received by the
Company or any Subsidiary in connection with such disposition.
Indenture means this Indenture, as amended or supplemented from time to time.
Indirect Participant means a Person who holds a beneficial interest in a Global Note through
a Participant.
Issue Date means the date on which the initial $200.0 million in aggregate principal amount
of the Notes were originally issued under this Indenture.
Legal Holiday means a Saturday, a Sunday or a day on which banking institutions in The City
of New York or at a place of payment are authorized by law, regulation or executive order to remain
closed. If a payment date is a Legal Holiday at a place of payment, payment may be made at that
place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such
payment for the intervening period.
Letter of Transmittal means the letter of transmittal to be prepared by the Company and sent
to all Holders of the Notes for use by such Holders in connection with the Exchange Offer.
Lien means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law, including any conditional sale or other title retention agreement,
any lease in the nature thereof, any option or other agreement to sell or give a security interest
in and any filing of or agreement to give any financing statement under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction.
Moodys means Moodys Investors Service and any successor thereof.
Non-U.S. Person means a Person who is not a U.S. Person.
Notes means the 6.50% Senior Notes due 2019 of the Company issued on the date hereof and the
Exchange Notes. The Notes and the Additional Notes, if any, shall be treated as a single class for
all purposes under this Indenture.
Note Guarantee means a Guarantee of the Notes on an unsubordinated basis pursuant to this
Indenture.
Officer means, with respect to any Person, the chairman of the board, the chief executive
officer, the president, the chief operating officer, the chief financial officer, the chief
accounting officer, the treasurer, any assistant treasurer, the controller, the secretary, any
assistant secretary or any vice-president of such Person.
Officers Certificate means a certificate signed on behalf of the Company by at least two
Officers of the Company, one of whom must be the chief executive officer, the chief
8
financial officer, the treasurer or the chief accounting officer of the Company, that meets
the requirements of Section 12.05 hereof.
Opinion of Counsel means an opinion from legal counsel who is reasonably acceptable to the
Trustee (who may be counsel to or an employee of the Company), that meets the requirements of
Section 12.05 hereof.
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).
Permitted Liens means:
(i) Liens on the assets of the Company and any Subsidiary of the Company securing
Credit Facilities in an aggregate principal amount at any one time outstanding not to exceed
$355 million;
(ii) Liens in favor of the Company or any Subsidiary of the Company;
(iii) Liens on property of a Person existing at the time such Person is merged with or
into or consolidated with the Company or any 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 any Subsidiary of the Company;
(iv) Liens on property existing at the time of acquisition thereof by the Company or
any Subsidiary of the Company, provided that such Liens were in existence prior to the
contemplation of such acquisition and do not extend to any property other than the property
so acquired by the Company or its Subsidiary;
(v) Liens on current assets of the Company or any Subsidiary of the Company;
(vi) Liens existing on the Issue Date (other than such Liens permitted by clause (i)
above);
(vii) Liens incurred in the ordinary course of business, and not otherwise included
under the definition of Permitted Liens herein, of the Company or any Subsidiary of the
Company with respect to Indebtedness that does not exceed $20.0 million at any one time
outstanding;
(viii) Liens securing Indebtedness (including Capital Lease Obligations) incurred to
finance the construction, purchase or lease of, or repairs, improvements or additions to,
property of the Company or any Subsidiary of the Company; provided that such Lien shall
attach only to the assets constructed, purchased, leased or improved, and the Indebtedness
(other than any interest thereon) secured by such Lien may not be incurred more than 180
days after the later of the acquisition, completion of construction,
9
repair, improvement, addition or commencement of full operation of the property subject
to such Lien;
(ix) Any extensions, renewals or replacement (or successive extensions, renewals or
replacements of any Liens permitted under clauses (iii), (iv), (vi) and (viii) above;
provided that (a) the principal amount of Indebtedness secured thereby shall not exceed the
principal amount of Indebtedness secured prior to such extension, renewal or replacement and
(b) such extension, renewal or replacement Lien shall be limited to all or part of the
assets that secured the Lien so extended, renewed or replaced (plus improvements and
construction on such real property);
(x) Liens to secure Indebtedness incurred in connection with industrial revenue or
development bond financing, which Liens extend solely to the property which is the subject
thereof;
(xi) (a) Statutory Liens of landlords, (b) Liens of carriers, warehousemen, mechanics,
materialmen and (c) other Liens arising in the ordinary course of business and in existence
less than 90 days from the date of creation thereof for amounts not yet due or which are
being contested in good faith by appropriate proceedings diligently conducted, and with
respect to which adequate reserves are being maintained in accordance with GAAP, which Liens
are not yet exercisable to effect the sale or seizure of property subject thereto;
(xii) Liens upon specific items of inventory or other goods and proceeds of any Person
securing such Persons obligations in respect of bankers acceptances issued or created for
the account of such Person to facilitate the purchase, shipment or storage of such inventory
or other goods;
(xiii) judgment Liens not giving rise to a Default so long as such Liens are adequately
bonded and any appropriate legal proceedings which may have been duly initiated for the
review of such judgment have not been finally terminated or the period within which the
proceedings may be initiated has not expired;
(xiv) Liens securing reimbursement obligations with respect to commercial letters of
credit in the ordinary course of business which encumber documents and other assets relating
to such letters of credit and products and proceeds thereof; and
(xv) Liens encumbering deposits made to secure obligations arising from statutory,
regulatory, contractual or warranty requirements of the Company or any Subsidiary, including
rights of offset and setoff.
Permitted Transferee means:
(1) the spouse and any lineal descendant (including adopted children) of Frank B.
Stewart, Jr., and any spouse of any such lineal descendant (all such spouses and lineal
descendants being hereinafter referred to as Family Members);
10
(2) the trustee of a trust for the sole benefit of Frank B. Stewart, Jr. or Family
Members;
(3) (i) a partnership made up exclusively of Frank B. Stewart, Jr. and/or Family
Members, or (ii) a corporation wholly-owned by Frank B. Stewart, Jr. and/or Family Members,
provided, however, that as of the date that such partnership or corporation is no longer
comprised of or owned exclusively by Frank B. Stewart, Jr. and/or Family Members, such
partnership or corporation will no longer be a Permitted Transferee; or
(4) the executor, administrator or personal representative of the estate of Frank B.
Stewart, Jr. or any Family Member, or the guardian or conservator of Frank B. Stewart, Jr.
or any Family Member who has been adjudged disabled by a court of competent jurisdiction.
Person means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company or government or
other entity.
Principals means Frank B. Stewart, Jr. or any Permitted Transferee.
Private Placement Legend means the legend set forth in Section 2.07(g)(i) 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.
Registration Rights Agreement means the Registration Rights Agreement, dated the date of
this Indenture, among the Company, the Guarantors, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, J.P. Morgan Securities LLC, SunTrust Robinson Humphrey, Inc., BBVA Securities Inc.,
and Morgan Keegan & Company, Inc.
Regulation S means Regulation S promulgated under the Securities Act.
Regulation S Global Note means a Regulation S Temporary Global Note or a Regulation S
Permanent Global Note, as appropriate.
Regulation S Permanent Global Note means a permanent Global Note in the form of Exhibit A1
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 at maturity of the Regulation S Temporary Global Note
upon expiration of the Restricted Period.
Regulation S Temporary Global Note means a temporary Global Note in the form of Exhibit A2
hereto bearing the Global Note Legend, the Private Placement Legend and the Temporary Regulation S
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 at maturity of the
Notes initially sold in reliance on Rule 903 of Regulation S.
11
Responsible Officer, when used with respect to the Trustee, means any officer within the
Corporate Trust Administration of the Trustee (or any successor group of the Trustee) or any other
officer of the Trustee customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his knowledge of and familiarity with the
particular subject.
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 Period means the 40-day restricted period as defined in Regulation S.
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.
SEC means the United States Securities and Exchange Commission.
Securities Act means the Securities Act of 1933, as amended.
Shelf Registration Statement means the Shelf Registration Statement as defined in the
Registration Rights Agreement.
Significant Subsidiary means any Subsidiary that would constitute a significant subsidiary
within the meaning of Article 1 of Regulation S-X of the Securities Act; provided, however, that
for purposes of this Indenture and the Notes, 5% shall be substituted for 10% in each place that it
appears in such definition.
S&P means Standard & Poors Ratings Group and any successor thereof.
Stated Maturity means, with respect to any installment of interest or principal on any
series of Indebtedness, the date on which such payment of interest or principal was scheduled to be
paid in the original documentation governing such Indebtedness, and shall not include any
contingent obligations to repay, redeem or repurchase any such interest or principal prior to the
date originally scheduled for the payment thereof.
Subsidiary means, with respect to any specified Person: (i) any corporation, association or
other business entity of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled, directly or
12
indirectly, by such Person or one or more of the other Subsidiaries of that Person (or a
combination thereof); and (ii) any partnership (a) the sole general partner or the managing general
partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of
which are such Person or one or more Subsidiaries of such Person (or any combination thereof).
Temporary Regulation S Legend means the legend set forth in Section 2.07(h) hereof, which is
required to be placed on the Regulation S Temporary Global Note.
TIA means the Trust Indenture Act of 1939, as in effect on the date on which this Indenture
is qualified under the TIA.
Treasury Rate means the yield to maturity at the time of computation of United States
Treasury securities with a constant maturity (as compiled and published in the most recent Federal
Reserve Statistical Release H.15 (519) which has become publicly available at least two Business
Days prior to the date fixed for prepayment (or, if such Statistical Release is no longer
published, any publicly available source for similar market data)) most nearly equal to the
then-remaining term of the Notes to April 15, 2014; provided, however, that if the then-remaining
term of the Notes to April 15, 2014 is not equal to the constant maturity of a United States
Treasury security for which a weekly average yield is given, the Treasury Rate will be obtained by
linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average
yields of United States Treasury securities for which such yields are given, except that if the
then-remaining term of the Notes to April 15, 2014 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 U.S. Bank National Association, a national banking association, 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 one or more Definitive Notes that do not bear and are not
required to bear the Private Placement Legend.
Unrestricted Global Note means a permanent Global Note substantially in the form of Exhibit
A1 attached hereto that bears the Global Note Legend and that has the Schedule of Exchanges of
Interests in the Global Note attached thereto, and that is deposited with or on behalf of and
registered in the name of the Depositary, representing a series of Notes that do not bear the
Private Placement Legend.
U.S. Person means a U.S. person as defined in Rule 902(k) of Regulation S under the
Securities Act.
Voting Stock of any Person as of any date means the Capital Stock of such Person that is at
the time entitled to vote in the election of the Board of Directors of such Person.
13
Section 1.02 Other Definitions.
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Defined in |
Term |
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Section |
Authentication Order
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2.02 |
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Change of Control Offer
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4.08 |
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Change of Control Payment
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4.08 |
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Change of Control Payment Date
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4.08 |
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Covenant Defeasance
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8.03 |
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DTC
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2.01 |
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Event of Default
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6.01 |
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Legal Defeasance
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8.02 |
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Offer Amount
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3.09 |
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Offer Period
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3.09 |
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offshore transaction
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2.07 |
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Patriot Act
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12.18 |
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Paying Agent
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2.04 |
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Payment Default
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6.01 |
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Purchase Date
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3.09 |
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Registrar
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2.04 |
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Related Judgment
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12.09 |
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Related Proceedings
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12.09 |
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Repurchase Offer
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3.09 |
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Resale Restriction Termination Date
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2.07 |
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Specified Courts
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12.09 |
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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.
The following TIA terms used in this Indenture have the following meanings:
indenture securities means the Notes;
indenture security Holder means a Holder of a Note;
indenture to be qualified means this Indenture;
indenture trustee or institutional trustee means the Trustee; and
obligor on the Notes means the Company and any successor obligor upon the Notes.
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.
14
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(c) or is not exclusive;
(d) words in the singular include the plural, and in the plural include the
singular;
(e) provisions apply to successive events and transactions; and
(f) references to sections of or rules under the Securities Act shall be deemed to
include substitute, replacement of successor sections or rules adopted by the SEC from
time to time.
ARTICLE TWO
THE NOTES
Section 2.01 Form and Dating.
(a) General. The Notes and the Trustees certificate of authentication shall be substantially
in the form of Exhibit A1 or A2 hereto. The Notes may have notations, legends or endorsements
required by law, stock exchange rule or usage. Each Note shall be dated the date of its
authentication. The Notes shall be (i) initially issued in registered, global form without
interest coupons and (ii) only shall be in minimum denominations of $2,000 and integral multiples
of $1,000 in excess thereof.
The terms and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and the Company, the 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 shall be substantially in the form of Exhibit
A1 or A2 attached hereto (including the Global Note Legend thereon and the Schedule of Exchanges
of Interests in the Global Note attached thereto) which shall be deposited on behalf of the
purchasers of the Notes represented thereby with the Trustee, as custodian for The Depository Trust
Company (DTC) and registered in the name of the Depository or the nominee of The Depository.
Notes issued in definitive form shall be substantially in the form of Exhibit A1 attached 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 shall represent such of the outstanding Notes
as shall be specified therein and each shall provide that it shall represent the aggregate
principal amount of
15
outstanding Notes from time to time endorsed thereon and that the aggregate principal amount
of outstanding Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the
amount of any increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby shall be made by the Trustee in accordance with instructions given by the
Holder thereof as required by Section 2.07 hereof.
(c) Temporary Global Notes. Notes offered and sold in reliance on Regulation S shall be
issued initially in the form of the Regulation S Temporary Global Note, which shall be deposited on
behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for DTC in
New York, New York, and registered in the name of the Depositary or the nominee of the Depositary
for the accounts of designated agents holding on behalf of Euroclear or Clearstream, duly executed
by the Company and authenticated by the Trustee as hereinafter provided. The Restricted Period
shall be terminated upon the receipt by the Trustee of (i) a written certificate from Euroclear and
Clearstream certifying that they have received certification of Beneficial Ownership of 100% of the
aggregate principal amount at maturity of the Regulation S Temporary Global Note by non-U.S.
persons (except to the extent of any Beneficial Owners thereof who acquired an interest therein
during the Restricted Period pursuant to another exemption from registration under the Securities
Act and who shall take delivery of a beneficial ownership interest in a 144A Global Note bearing a
Private Placement Legend, all as contemplated by Section 2.07(b)(ii) hereof), and (ii) an Officers
Certificate from the Company. Following the termination of the Restricted Period, beneficial
interests in the Regulation S Temporary Global Note shall be exchanged for beneficial interests in
Regulation S Permanent Global Notes pursuant to the Applicable Procedures. Simultaneously with the
authentication of Regulation S Permanent Global Notes, the Trustee shall cancel the Regulation S
Temporary Global Note. The aggregate principal amount of the Regulation S Temporary Global Note
and the Regulation S Permanent Global Notes may from time to time be increased or decreased by
adjustments made on the records of the Trustee and the Depositary or its nominee, as the case may
be, in connection with transfers of interest as hereinafter provided.
(d) 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 Cedel Bank and Customer Handbook of Clearstream shall be
applicable to transfers of beneficial interests in the Regulation S Temporary Global Note and the
Regulation S Permanent Global Notes that are held by Participants through Euroclear or Clearstream.
Section 2.02 Execution and Authentication.
Two Officers of the Company shall sign the Notes for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is
authenticated, the Note shall nevertheless be valid.
16
A Note shall not be valid until authenticated by the manual signature of the Trustee. Such
signature shall be conclusive evidence that the Note has been authenticated under this Indenture.
The aggregate principal amount of Notes which may be authenticated and delivered under this
Indenture is unlimited.
The Trustee shall, upon a written order of the Company signed by two Officers of the Company
(an Authentication Order), authenticate Notes for original issue with an unlimited maximum
aggregate principal amount, of which $200 million will be issued on the date of this Indenture.
The Authentication Order shall direct the Trustee to authenticate the Notes and set forth the
amount of Notes to be authenticated, the names in which the Notes are to be registered and where
the Notes are to be delivered.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes authentication by such agent.
An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of
the Company.
Section 2.03 Methods of Receiving Payments on the Notes.
If a Holder of Notes has given wire transfer instructions to the Company at least 10 Business
Days prior to the applicable payment date, the Company shall pay all principal, interest and
premium and Additional Interest, if any, on that Holders Notes in accordance with those
instructions. All other payments on Notes shall be made at the office or agency of the Paying
Agent and Registrar within the City and State of New York unless the Company elects to make
interest payments by check mailed to the Holders at their addresses set forth in the register of
Holders; provided that all payments of principal, premium, if any, and interest (including
Additional Interest, if any) with respect to Global Notes registered in the name of or held by DTC
or its nominee will be made by wire transfer of immediately available funds to the account
specified by DTC.
Section 2.04 Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may be presented for registration
of transfer or for exchange (Registrar) and an office or agency where Notes may be presented for
payment (Paying Agent). The Registrar shall keep a register of the Notes and of their transfer
and exchange. The Company may appoint one or more co-registrars and one or more additional paying
agents. The term Registrar includes any co-registrar and the term Paying Agent includes any
additional paying agent. The Company may change any Paying Agent or Registrar without prior notice
to any Holder. The Company shall notify the Trustee in writing of the name and address of any
Agent not a party to this Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries
may act as Paying Agent or Registrar.
The Company initially appoints DTC to act as Depositary with respect to the Global Notes.
17
The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act
as Custodian with respect to the Global Notes.
Section 2.05 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by
the Paying Agent for the payment of principal, premium or Additional Interest, if any, or interest
on the Notes, and shall notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the
Company or one of its Subsidiaries) shall have no further liability for the money. If the Company
or one of its Subsidiaries acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee shall serve as Paying Agent for the
Notes.
Section 2.06 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders and shall otherwise comply with TIA
§ 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least
seven Business Days before each interest payment date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of the Holders of Notes and the Company shall otherwise comply with TIA
§ 312(a).
Section 2.07 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be transferred as a whole
except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes shall be
exchanged by the Company for Definitive Notes if (i) the Company delivers to the Trustee notice
from the Depositary that it is unwilling or unable to continue to act as Depositary or that it is
no longer a clearing agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 120 days after the date of such notice from the
Depositary; (ii) the Company in its sole discretion determines that the Global Notes (in whole but
not in part) should be exchanged for Definitive Notes and delivers a written notice to such effect
to the Trustee; provided that in no event shall the Regulation S Temporary Global Note be exchanged
by the Company for Definitive Notes prior to (x) the expiration of the Restricted Period and (y)
the receipt by the Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under
the Securities Act; or (iii) there shall have occurred and be continuing a Default or Event of
Default with respect to the Notes. Upon the occurrence of either of the preceding events in (i),
(ii) or (iii) above, Definitive Notes shall be issued in such names as the Depositary shall
instruct the Trustee. Global Notes also may be
18
exchanged or replaced, in whole or in part, as provided in Sections 2.08 and 2.11 hereof.
Except as otherwise provided above in this Section 2.07(a), every Note authenticated and delivered
in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.07
or Section 2.08 or 2.11 hereof, shall be authenticated and delivered in the form of, and shall be,
a Global Note. A Global Note may not be exchanged for another Note other than as provided in this
Section 2.07(a), however, beneficial interests in a Global Note may be transferred and exchanged as
provided in Section 2.07(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and
exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes shall be subject to restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Transfers of beneficial
interests in the Global Notes also shall require compliance with either subparagraph (i) or (ii)
below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in
any Restricted Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend; provided, however, that
prior to the expiration of the Restricted Period, transfers of beneficial interests in the
Regulation S Temporary Global Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Beneficial interests in any
Unrestricted Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note. Except as required pursuant
to the Private Placement Legend, no written orders or instructions shall be required to be
delivered to the Registrar to effect the transfers described in this Section 2.07(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In
connection with all transfers and exchanges of beneficial interests that are not subject to
Section 2.07(b)(i) above, the transferor of such beneficial interest must deliver to the
Registrar either (A) (1) a written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in another Global Note
in an amount equal to the beneficial interest to be transferred or exchanged and
(2) instructions given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or (B) (1) a written
order from a Participant or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to cause to be issued a Definitive
Note in an amount equal to the beneficial interest to be transferred or exchanged and
(2) instructions given by the Depositary to the Registrar containing information regarding
the Person in whose name such Definitive Note shall be registered to effect the transfer or
exchange referred to in (1) above; provided that in no event shall Definitive Notes be
issued upon the transfer or exchange of beneficial interests in the Regulation S Temporary
Global Note prior to (x) the expiration of the
19
Restricted Period and (y) the receipt by the Registrar of any certificates required pursuant to Rule 903 under the Securities Act. Upon
consummation of an Exchange Offer by the Company in accordance with Section 2.07(f) hereof,
the requirements of this Section 2.07(b)(ii) shall be deemed to have been satisfied upon
receipt by the Registrar of the instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in the Restricted Global Notes. Upon
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 at maturity of the relevant
Global Notes pursuant to Section 2.07(i) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted Global Note. A
beneficial interest in any Restricted Global Note may be transferred to a Person who takes
delivery thereof in the form of a beneficial interest in another Restricted Global Note if
the transfer complies with the requirements of Section 2.07(b)(ii) above and the Registrar
receives the following:
(A) if the transferee shall take delivery in the form of a beneficial interest
in the 144A Global Note, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item (1) thereof; and
(B) if the transferee shall take delivery in the form of a beneficial
interest in the Regulation S Temporary Global Note or Regulation S Permanent Global
Note, then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in the Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any Holder thereof for a beneficial interest in
an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer
complies with the requirements of Section 2.07(b)(ii) 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 (1) a Broker-Dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange
Offer Registration Statement in accordance with the Registration Rights Agreement;
or
20
(D) the Registrar receives the following:
(1) if the Holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications in item (1)(a)
thereof; or
(2) if the Holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such Holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), 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 Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to
Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global
Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes.
If any Holder of a beneficial interest in a Restricted Global Note proposes to exchange
such beneficial interest for a Restricted Definitive Note as permitted by this Indenture 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;
21
(B) if such beneficial interest is being transferred to a QIB in accordance
with Rule 144A under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a Non-U.S. Person in
an offshore transaction in accordance with Rule 903 or Rule 904 under the
Securities Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant to an exemption
from the registration requirements of the Securities Act in accordance with
Rule 144 under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications and opinion in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to the Company or any of
its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(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 certification in item 3(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be
reduced accordingly pursuant to Section 2.07(i) hereof, and the Company 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 2.07(c)(i) 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 2.07(c)(i) shall bear the
Private Placement Legend and shall be subject to all restrictions on transfer contained
therein.
(ii) Beneficial Interests in Regulation S Temporary Global Note to Definitive Notes.
Notwithstanding Sections 2.07(c)(i)(A) and (C) hereof, a beneficial interest in the
Regulation S Temporary Global Note may not be exchanged for a Definitive Note or
transferred to a Person who takes delivery thereof in the form of a Definitive Note prior
to (x) the expiration of the Restricted Period and (y) the receipt by the Registrar of any
certificates required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act, except in
the case of a transfer pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 903 or Rule 904.
(iii) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive
Notes. A Holder of a beneficial interest in a Restricted Global Note may exchange such
22
beneficial interest for an Unrestricted Definitive Note as permitted by this Indenture or
may transfer such beneficial interest to a Person who takes delivery thereof in the form of
an Unrestricted Definitive Note as permitted by this Indenture only if:
(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 (1) a
Broker-Dealer, (2) a Person participating in the distribution of the Exchange Notes
or (3) a Person who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange
Offer Registration Statement in accordance with the Registration Rights Agreement;
or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a Definitive Note
that does not bear the Private Placement Legend, a certificate from such
Holder in the form of Exhibit C hereto, including the certifications in
item (1)(b) thereof; or
(2) if the Holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a Definitive Note that does not bear
the Private Placement Legend, a certificate from such Holder in the form
of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), 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.
(iv) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive
Notes. If any Holder of a beneficial interest in an Unrestricted Global Note proposes to
exchange such beneficial interest for an Unrestricted Definitive Note as permitted by this
Indenture or to transfer such beneficial interest to a Person who takes delivery thereof in
the form of an Unrestricted Definitive Note, then, upon satisfaction of the conditions set
forth in Section 2.07(b)(ii) hereof, the Trustee shall cause the aggregate principal amount
of the applicable Global Note to be reduced accordingly pursuant to Section 2.07(i) hereof,
and the Company shall execute and the Trustee shall authenticate
23
and deliver to the Person designated in the instructions an Unrestricted Definitive Note in the appropriate principal
amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this
Section 2.07(c)(iv) shall be registered in such name or names and in such authorized
denomination or denominations as the Holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall deliver such 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 2.07(c)(iv) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(i) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes.
If any Holder of a Restricted Definitive Note proposes to exchange such Note for a
beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive
Notes to a Person who takes delivery thereof in the form of a beneficial interest in a
Restricted Global Note, then, upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note proposes to exchange such
Note for a beneficial interest in a Restricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the certifications in item (2)(b)
thereof;
(B) if such Restricted Definitive Note is being transferred to a QIB in
accordance with Rule 144A under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred to a Non-U.S.
Person in an offshore transaction in accordance with Rule 903 or Rule 904 under the
Securities Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in accordance
with Rule 144 under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications and opinion in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to the Company or
any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(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,
24
the Trustee shall cancel the Restricted Definitive Note, increase or cause to be increased
the aggregate principal amount of, in the case of clause (A) above, 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 and in all other cases the 144A
Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.
A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest
in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
only if:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange
Offer Registration Statement in accordance with the Registration Rights Agreement;
or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes proposes to exchange such
Notes for a beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit C hereto, including
the certifications in item (1)(c) thereof; or
(2) if the Holder of such 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.
25
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.07(d)(ii), the Trustee shall cancel the Definitive Notes and increase or cause to
be increased the aggregate principal amount of the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global
Notes. A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall
cancel the applicable Unrestricted Definitive Note and increase or cause to be increased
the aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial interest is
effected pursuant to subparagraphs (ii)(B), (ii)(D) or (iii) above at a time when an
Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt
of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal
to the principal amount of 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 2.07(e), the
Registrar shall register the transfer or exchange of Definitive Notes for Definitive Notes. Prior
to such registration of transfer or exchange, the requesting Holder shall present or surrender to
the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney,
duly authorized in writing. In addition, the requesting Holder shall provide any additional
certifications, documents and information, as applicable, required pursuant to the following
provisions of this Section 2.07(e).
(i) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted
Definitive Note may be transferred to and registered in the name of Persons who take
delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer shall be made pursuant to Rule 144A under the Securities
Act, then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;
(B) if the transfer shall be made pursuant to Rule 903 or Rule 904, then the
transferor must deliver a certificate in the form of Exhibit B hereto, including
the certifications in item (2) thereof; and
(C) if the transfer shall be made pursuant to any other exemption from the
registration requirements of the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if applicable.
26
(ii) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted
Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note
or transferred to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf Registration Statement
in accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer pursuant to the Exchange
Offer Registration Statement in accordance with the Registration Rights Agreement;
or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Notes proposes to
exchange such Notes for an Unrestricted Definitive Note, a certificate
from such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in the
form of an Unrestricted Definitive Note, a certificate from such Holder in
the form of Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably acceptable
to the Company to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of
Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to
register such a transfer, the Registrar shall register the Unrestricted Definitive Notes
pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Company shall issue and, upon receipt of an Authentication Order
in accordance with Section 2.02, the Trustee shall authenticate (i) one
27
or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of the beneficial interests in
the Restricted Global Notes tendered for acceptance by Persons that certify in the applicable
Letters of Transmittal that (x) they are not Broker-Dealers, (y) they are not participating in a
distribution of the Exchange Notes and (z) they are not affiliates (as defined in Rule 144) of the
Company, and accepted for exchange in the Exchange Offer and (ii) 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. Concurrently with the issuance of such Notes, the
Trustee shall cause the aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Company shall execute and the Trustee shall authenticate and deliver
to the Persons designated by the Holders of Definitive Notes so accepted Definitive Notes in the
appropriate principal amount. Any Notes that remain outstanding after the consummation of the
Exchange Offer, and Exchange Notes issued in connection with the Exchange Offer, shall be treated
as a single class of securities under this Indenture.
(g) Legends. The following legends shall appear on the face of all Global Notes and
Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable
provisions of this Indenture.
(i) Private Placement Legend. Except as permitted 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 AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), OR ANY STATE OR FOREIGN
SECURITIES LAWS. NEITHER THIS NOTE NOR THE GUARANTEES ENDORSED HEREON NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE GUARANTEES
ENDORSED HEREON BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS ONE YEAR AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE
OF THE COMPANY WAS THE OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON (OR
ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON) (THE RESALE
RESTRICTION TERMINATION DATE) ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF,
(B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT (RULE 144A), TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER
28
AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES
TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE COMPANYS AND THE TRUSTEES RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D) PRIOR TO THE END OF THE
40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON
THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to
subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to
this Section 2.07 (and all Notes issued in exchange therefor or substitution thereof) shall
not bear the Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall 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
(I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE
MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY
WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
29
(h) Regulation S Temporary Global Note Legend. The Regulation S Temporary Global Note shall
bear a legend in substantially the following form:
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS
AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN
THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF
THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
INTEREST HEREON.
(i) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests
in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note
has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be
returned to or retained and canceled by the Trustee in accordance with Section 2.12 hereof. At any
time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or
transferred to a Person who shall take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the principal amount of Notes represented by such
Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if
the beneficial interest is being exchanged for or transferred to a Person who shall take delivery
thereof in the form of a beneficial interest in another Global Note, such other Global Note shall
be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by
the Depositary at the direction of the Trustee to reflect such increase.
(j) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Global Notes and Definitive Notes upon the Companys order
or at the Registrars request.
(ii) No service charge shall be made to a Holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to Sections 2.11,
3.06, 3.09, 4.08 and 9.05 hereof).
(iii) The Registrar shall not be required to register the transfer of or exchange any
Note selected for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any registration of transfer or
exchange of Global Notes or Definitive Notes shall be the valid and legally binding
obligations of the Company, evidencing the same debt, and entitled to the same
30
benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to register the transfer of or to
exchange any Notes during a period beginning at the opening of business 15 days before the
day of any selection of Notes for redemption under Section 3.02 hereof and ending at the
close of business on the day of selection, (B) to register the transfer of or to exchange
any Note so selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part or (C) to register the transfer of or to exchange a Note
between a record date and the next succeeding interest payment date.
(vi) Prior to due presentment for the registration of a transfer of any Note, the
Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and none of the
Trustee, any Agent or the Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive Notes in accordance
with the provisions of Section 2.02 hereof.
(viii) All certifications, certificates and Opinions of Counsel required to be
submitted to the Registrar pursuant to this Section 2.07 to effect a registration of
transfer or exchange may be submitted by facsimile with the original to follow by first
class mail.
(ix) In connection with any transfer of any Note, the Trustee and the Company shall be
entitled to receive, shall be under no duty to inquire into, may conclusively presume the
correctness of, and shall be fully protected in relying upon the certificates, opinions and
other information referred to herein (or in the forms provided herein, attached hereto or
to the Notes, or otherwise) received from any Holder and any transferee of any Note
regarding the validity, legality and due authorization of any such transfer, the
eligibility of the transferee to receive such Note and any other facts and circumstances
related to such transfer.
Section 2.08 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any Note, the Company shall issue
and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if
the Trustees and the Companys requirements are met. If required by the Trustee or the Company,
an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee
and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a Note is replaced. The Company may charge for its
expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and shall be entitled to all
of the benefits of this Indenture equally and proportionately with all other Notes duly issued
hereunder.
31
Section 2.09 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation, those reductions in the interest in a
Global Note effected by the Trustee in accordance with the provisions hereof, and those described
in this Section as not outstanding. Except as set forth in Section 2.10 hereof, a Note does not
cease to be outstanding because the Company or an Affiliate of the Company holds the Note; however,
Notes held by the Company or a Subsidiary of the Company shall not be deemed to be outstanding for
purposes of Section 3.07(b) hereof.
If a Note is replaced pursuant to Section 2.08 hereof, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to
be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any of the
foregoing) holds, on a redemption date or maturity date, money sufficient to pay Notes payable on
that date, then on and after that date such Notes shall be deemed to be no longer outstanding and
shall cease to accrue interest.
Section 2.10 Treasury Notes.
In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Company, or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common control with the
Company, shall be considered as though not outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver or consent, only
Notes that the Trustee knows are so owned shall be so disregarded.
Section 2.11 Temporary Notes.
Until certificates representing Notes are ready for delivery, the Company may prepare and the
Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary
Notes shall be substantially in the form of Definitive Notes but may have variations that the
Company considers appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate
definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of this Indenture.
Section 2.12 Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel all Notes
32
surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall dispose of
canceled Notes in accordance with its procedures for the disposition of canceled securities in
effect as of the date of such disposition (subject to the record retention requirement of the
Exchange Act). Certification of the disposition of all canceled Notes shall be delivered to the
Company. The Company may not issue new Notes to replace Notes that it has paid or that have been
delivered to the Trustee for cancellation.
Section 2.13 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it shall pay the defaulted
interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date, in each case at the
rate provided in the Notes and in Section 4.01 hereof. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and the date of the
proposed payment. The Company shall fix or cause to be fixed each such special record date and
payment date, provided that no such special record date shall be less than 10 days prior to the
related payment date for such defaulted interest. At least 15 days before the special record date,
the Company (or, upon the written request of the Company, the Trustee in the name and at the
expense of the Company) shall mail or cause to be mailed to Holders a notice that states the
special record date, the related payment date and the amount of such interest to be paid.
Section 2.14 CUSIP Numbers.
The Company in issuing the Notes may use CUSIP numbers (if then generally in use), and, if
so, the Trustee shall use CUSIP numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Notes or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the Notes, and any such
redemption shall not be affected by any defect in or omission of such numbers. The Company shall
promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE THREE
REDEMPTION AND PREPAYMENT;
SATISFACTION AND DISCHARGE
Section 3.01 Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional redemption provisions of
Section 3.07 hereof, it shall furnish to the Trustee, at least 30 days but not more than 60 days
before a redemption date, an Officers Certificate setting forth (i) the clause of this Indenture
pursuant to which the redemption shall occur, (ii) the redemption date, (iii) the principal amount
of Notes to be redeemed and (iv) the redemption price.
33
Section 3.02 Selection of Notes to Be Redeemed.
If less than all of the outstanding Notes are to be redeemed or purchased in an offer to
purchase at any time, the Trustee shall select the Notes to be redeemed or purchased among the
Holders of the Notes in compliance with the requirements of the principal national securities
exchange, if any, on which the Notes are listed or, if the Notes are not so listed, on a pro rata
basis, by lot or in accordance with any other method the Trustee considers fair and appropriate.
In the event of partial redemption by lot, the particular Notes to be redeemed shall be selected,
unless otherwise provided herein, not less than 30 nor more than 60 days prior to the redemption
date by the Trustee from the outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Notes selected for redemption
and, in the case of any Note selected for partial redemption, the principal amount at maturity
thereof to be redeemed. No Notes in amounts of $2,000 or less shall be redeemed in part. Notes
and portions of Notes selected shall be in amounts of $2,000 or integral multiples of $1,000 in
excess thereof; except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not $2,000 or integral multiples of $1,000
in excess thereof, shall be redeemed. Except as provided in the preceding sentence, provisions of
this Indenture that apply to Notes called for redemption also apply to portions of Notes called for
redemption.
Section 3.03 Notice of Redemption.
Subject to the provisions of Section 3.10 hereof, at least 30 days but not more than 60 days
before a redemption date, the Company shall mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the principal amount of such
Note to be redeemed and that, after the redemption date upon surrender of such Note, a new
Note or Notes in principal amount equal to the unredeemed portion of the original Note
shall be issued in the name of the Holder thereof upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying Agent to
collect the redemption price and become due on the date fixed for redemption;
(f) that, unless the Company defaults in making such redemption payment, interest, and
Additional Interest, if any, on Notes called for redemption ceases to accrue on and after
the redemption date;
34
(g) the paragraph of the Notes and/or Section of this Indenture pursuant to which the
Notes called for redemption are being redeemed;
(h) the CUSIP or ISIN or similar numbers, if applicable; and
(i) that no representation is made as to the correctness or accuracy of the CUSIP
number, if any, listed in such notice or printed on the Notes.
At the Companys request, the Trustee shall give the notice of redemption in the Companys
name and at its expense; provided, however, that the Company shall have delivered to the Trustee,
at least 45 days prior to the redemption date, an Officers Certificate requesting that the Trustee
give such notice and setting forth the information to be stated in such notice as provided in the
preceding paragraph. The notice, if mailed in the manner provided herein shall be presumed to have
been given, whether or not the Holder receives such notice.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for
redemption become irrevocably due and payable on the redemption date at the redemption price. A
notice of redemption may not be conditional.
Section 3.05 Deposit of Redemption Price.
One Business Day prior to the redemption date, the Company shall deposit with the Trustee or
with the Paying Agent money sufficient to pay the redemption price of and accrued interest and
Additional Interest, if any, on all Notes to be redeemed on that date. The Trustee or the Paying
Agent shall promptly return to the Company any money deposited with the Trustee or the Paying Agent
by the Company in excess of the amounts necessary to pay the redemption price of, and accrued
interest on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding paragraph, on and after the
redemption date, interest and Additional Interest, if any, shall cease to accrue on the Notes or
the portions of Notes called for redemption. If a Note is redeemed on or after an interest record
date but on or prior to the related interest payment date, then any accrued and unpaid interest
shall be paid to the Person in whose name such Note was registered at the close of business on such
record date. If any Note called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding paragraph, interest and
Additional Interest, if any shall be paid on the unpaid principal, from the redemption date until
such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal,
in each case at the rate provided in the Notes and in Section 4.01 hereof.
Section 3.06 Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall issue and the Trustee
shall authenticate for the Holder at the expense of the Company a new Note equal in principal
amount to the unredeemed portion of the Note surrendered. No Notes in denominations of $2,000 or
less shall be redeemed in part.
35
Section 3.07 Optional Redemption.
(a) Except as set forth in clause (b) of this Section 3.07, the Company shall not have the
option to redeem the Notes pursuant to this Section 3.07 prior to April 15, 2014. On or after
April 15, 2014, the Company 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, thereon, to the
applicable redemption date, subject to the rights of the Holders of the Notes on the relevant
record date to receive interest on the relevant interest payment date, if redeemed during the
twelve-month period beginning on April 15 of the years indicated below:
|
|
|
|
|
Year |
|
Percentage |
|
2014 |
|
|
104.875 |
% |
2015 |
|
|
103.250 |
% |
2016 |
|
|
101.625 |
% |
2017 and thereafter |
|
|
100.000 |
% |
(b) At any time prior to April 15, 2014, the Company may redeem all or a part of the Notes,
upon not less than 30 nor more than 60 days notice, at a redemption price equal to the sum of
(i) 100% of the principal amount thereof, plus (ii) the Applicable Premium as of the date of
redemption, plus (iii) accrued and unpaid interest and Additional Interest, if any, thereon, to the
applicable redemption date, subject to the rights of the Holders of the Notes on the relevant
record date to receive interest on the relevant interest payment date.
(c) 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 Company shall not be required to make mandatory redemption payments or sinking fund
payments with respect to the Notes.
Section 3.09 Repurchase Offer.
In the event that, pursuant to Section 4.08 hereof, the Company shall be required to commence
an offer to all Holders to purchase their respective Notes (a Repurchase Offer), it shall follow
the procedures specified below.
The Repurchase Offer shall remain open for a period of 30 Business Days following its
commencement and no longer, except to the extent that a longer period is required by applicable law
(the Offer Period). No later than five Business Days after the termination of the Offer Period
(the Purchase Date), the Company shall purchase the principal amount of Notes required to be
purchased pursuant to Section 4.08 hereof (the Offer Amount) or, if less than the Offer Amount
has been tendered, all Notes tendered in response to the Repurchase
36
Offer. Payment for any Notes
so purchased shall be made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and on or before the related
interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a
Note is registered at the close of business on such record date, and no additional interest shall
be payable to Holders who tender Notes pursuant to the Repurchase Offer.
Upon the commencement of a Repurchase Offer, the Company shall send, by first class mail, a
notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice shall
contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to
the Repurchase Offer. The Repurchase Offer shall be made to all Holders. The notice, which shall
govern the terms of the Repurchase Offer, shall state:
(a) that the Repurchase Offer is being made pursuant to this Section 3.09 and
Section 4.08 hereof, and the length of time the Repurchase Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall continue to accrete or
accrue interest and Additional Interest, if any;
(d) that, unless the Company defaults in making such payment, any Note (or portion
thereof) accepted for payment pursuant to the Repurchase Offer shall cease to accrete or
accrue interest and Additional Interest, if any, after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to a Repurchase Offer may
elect to have Notes purchased only in minimum denominations of $2,000 and integral
multiples of $1,000 in excess thereof;
(f) that Holders electing to have a Note purchased pursuant to any Repurchase Offer
shall be required to surrender the Note, with the form entitled Option of Holder to Elect
Purchase on the reverse of the Note completed, or transfer by book-entry transfer, to the
Company, a depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if the Company, the
Depositary or the Paying Agent, as the case may be, receives, not later than the expiration
of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder delivered for purchase and
a statement that such Holder is withdrawing his election to have such Note purchased;
(h) that, if the aggregate amount of Notes surrendered by Holders exceeds the Offer
Amount, the Trustee shall select the Notes to be purchased pursuant to the terms of Section
3.02 hereof (with such adjustments as may be deemed appropriate by the Trustee
37
so that only Notes in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof
shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer).
On the Purchase Date, the Company shall, to the extent lawful, accept for payment on a pro
rata basis to the extent necessary, the Offer Amount of Notes (or portions thereof) tendered
pursuant to the Repurchase Offer, or if less than the Offer Amount has been tendered, all Notes
tendered, and shall deliver to the Trustee an Officers Certificate stating that such Notes (or
portions thereof) were accepted for payment by the Company in accordance with the terms of this
Section 3.09. The Company, the Depositary or the Paying Agent, as the case may be, shall promptly
(but in any case not later than five days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of Notes tendered by such Holder, as the
case may be, and accepted by the Company for purchase, and the Company, shall promptly issue a new
Note. The Trustee, upon written request from the Company shall authenticate and mail or deliver
such new Note to such Holder, in a principal amount at maturity equal to any unpurchased portion of
the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the
Company to the respective Holder thereof. The Company shall publicly announce the results of the
Repurchase Offer on the Purchase Date.
The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act, and any
other securities laws and regulations thereunder to the extent such laws or regulations are
applicable in connection with the repurchase of the Notes pursuant to a Repurchase Offer. To the
extent that the provision of any securities laws or regulations conflict with the provisions of
this Section 3.09, the Company shall comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under this Section 3.09, by virtue of such
conflict.
Other than as specifically provided in this Section 3.09, any purchase pursuant to this
Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Section 3.10 Application of Trust Money.
All money deposited with the Trustee pursuant to Section 11.02 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, 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.
38
ARTICLE FOUR
COVENANTS
Section 4.01 Payment of Notes.
The Company shall pay or cause to be paid the principal of, premium, if any, and interest on
the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and
interest shall be considered paid on the date due if the Paying Agent, if other than the Company or
one of its Subsidiaries, holds as of 10:00 a.m. Eastern Time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay all principal,
premium, if any, and interest then due. The Company shall pay all Additional Interest, if any, in
the same manner on the dates and in the amounts set forth in the Registration Rights Agreement.
The Company shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at the rate equal to 1% per annum in excess of the then
applicable interest rate on the Notes to the extent lawful; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest, and Additional Interest (without regard to any applicable grace period) at the same rate
to the extent lawful.
Section 4.02 Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of New York, an office or
agency (which may be an office of the Trustee or an agent of the Trustee, Registrar or
co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate
Trust Office of the Trustee.
The Company may also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes. The Company shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the location of any such
other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee as one such office or
agency of the Company in accordance with Section 2.04 of this Indenture.
39
Section 4.03 Reports.
Whether or not required by the SEC, so long as any Notes are outstanding, the Company shall
furnish (without exhibits) to the Trustee for forwarding to the Holders of the Notes, within the
time periods specified in the SECs rules and regulations:
(i) all quarterly and annual financial information that would be required to be
contained in a filing with the SEC on Forms 10-Q and 10-K if the Company were required to
file such Forms, including a Managements Discussion and Analysis of Financial Condition
and Results of Operations and, with respect to the annual information only, a report on
the annual financial statements by the Companys certified independent accountants; and
(ii) all current reports that would be required to be filed with the SEC on Form 8-K
if the Company were required to file such reports.
In addition, whether or not required by the SEC, the Company shall file a copy of all of the
information and reports referred to in clauses (i) and (ii) above with the SEC for public
availability within the time periods specified in the SECs rules and regulations (unless the SEC
will not accept such a filing) and make such information available to securities analysts and
prospective investors upon request. In addition, the Company and the Guarantors have agreed that,
for so long as any Notes remain outstanding, they will furnish to the Holders and to prospective
investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
Delivery of reports, information and documents to the Trustee under this Section 4.03 is for
informational purchases only and the Trustees receipt of the foregoing shall not constitute
constructive notice of any information contained therein or determinable from information contacted
therein, including the Companys compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely conclusively on Officers Certificates). The Trustee is under no duty
to examine such reports, information or documents to ensure compliance with the provisions of this
Indenture or to ascertain the correctness or otherwise of the information or the statements
contained therein.
Section 4.04 Compliance Certificate.
(a) The Company and each Guarantor (to the extent that such Guarantor is so required under the
TIA) shall deliver to the Trustee, within 90 days after the end of each fiscal year, an Officers
Certificate stating that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its obligations under
this Indenture, and further stating, as to each such Officer signing such certificate, that to the
best of his or her knowledge, the Company has kept, observed, performed and fulfilled its
obligations under this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Events of Default of which he or she may have
knowledge and what action the Company is taking or
40
proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of
which payments on account of the principal of or interest, if any, on the Notes is prohibited or if
such event has occurred, a description of the event and what action the Company is taking or
proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of the American Institute of
Certified Public Accountants, the Officers Certificate delivered pursuant to Section 4.04(a) above
shall be accompanied by a written statement of the Companys independent public accountants (which
shall be a firm of established national reputation) that in making the examination necessary for
certification of the financial statements delivered pursuant to Section 4.03, nothing has come to
their attention that would lead them to believe that the Company has violated any provisions of
Article Four or Article Five hereof, insofar as they relate to accounting matters, or, if any such
violation has occurred, specifying the nature and period of existence thereof, it being understood
that such accountants shall not be liable directly or indirectly to any Person for any failure to
obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are outstanding, 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 Company is taking or
proposes to take with respect thereto.
Section 4.05 Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to pay, prior to delinquency,
any material taxes, assessments, and governmental levies except such as are contested in good faith
and by appropriate proceedings or where the failure to effect such payment is not adverse in any
material respect to the Holders of the Notes.
Section 4.06 Stay, Extension and Usury Laws.
The Company and each of the Guarantors covenant (to the extent that it may lawfully do so)
that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this Indenture; and the
Company and each of the Guarantors (to the extent that it may lawfully do so) hereby expressly
waive all benefit or advantage of any such law, and covenant that they shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law has been enacted.
Section 4.07 Liens.
The Company shall not, and shall not permit any of its Subsidiaries to, create, incur,
assume or otherwise cause or suffer to exist or become effective any Lien of any kind (other than
Permitted Liens) upon any property or assets of the Company or its Subsidiaries, now owned or
hereafter acquired, to secure any Indebtedness without providing that the Notes shall be secured
equally and ratably with (or, in the case of subordinated Indebtedness, prior to) such other
Indebtedness for so long as such other Indebtedness is so secured, unless, after giving
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effect thereto, the aggregate amount of all such secured Indebtedness of the Company and its Subsidiaries
(excluding Indebtedness secured by Permitted Liens) would not exceed 10.0% of Consolidated Adjusted
Net Tangible Assets of the Company.
Section 4.08 Offer to Repurchase upon a Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder of Notes shall have
the right to require the Company to repurchase all or any part (equal to $2,000 or an integral
multiple of $1,000 in excess thereof) of such Holders Notes pursuant to the offer described below
(the Change of Control Offer) at an offer price in cash equal to 101% of the aggregate principal
amount repurchased plus accrued and unpaid interest and Additional Interest thereon, if any, to the
date of purchase (the Change of Control Payment). Within 30 days following any Change of Control,
the Company shall mail a notice to each Holder describing the transaction or transactions that
constitute the Change of Control and stating (1) that the Change of Control Offer is being made
pursuant to this Section 4.08 and that all Notes tendered will be accepted for payment and (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), and containing the
other provisions required by Section 3.09. The Company shall comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent
such laws and regulations are applicable in connection with the repurchase of the Notes as a result
of a Change of Control. To the extent that the provisions of any securities laws or regulations
conflict with the provisions of this Indenture relating to such Change of Control Offer, the
Company shall comply with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations described in this Indenture by virtue thereof.
(b) By 12:00 p.m. (noon) Eastern Time on the Change of Control Payment Date, the
Company shall, to the extent lawful, (1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (2) deposit with the Paying Agent an amount equal
to the Change of Control Payment in respect of all Notes or portions thereof so tendered and
(3) deliver or cause to be delivered to the Trustee the Notes so accepted together with an
Officers Certificate stating the aggregate principal amount of Notes or portions thereof being
purchased by the Company. The Paying Agent shall promptly mail or wire transfer to each Holder of
Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly
authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in
principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each
such new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess
thereof. The Company shall publicly announce the results of the Change of Control Offer on or as
soon as practicable after the Change of Control Payment Date.
(c) Notwithstanding anything to the contrary in this Section 4.08, the Company
shall not be required to make a Change of Control Offer upon a Change of Control if a third party
makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.08 and Section 3.09 hereof and all other provisions of
this Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes
validly tendered and not withdrawn under such Change of Control Offer.
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Section 4.09 Payments for Consent.
The Company shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder of Notes
for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of
this Indenture or the Notes unless such consideration is offered to be paid and is paid to all
Holders of the Notes that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.
Section 4.10 Sale and Leaseback Transactions.
The Company shall not, and shall not permit any of its Subsidiaries to, enter into any
transaction with any Person (other than the Company or its Subsidiaries) providing for the leasing
to the Company or any of its Subsidiaries of any real property which has been or is to be sold or
transferred by the Company or such Subsidiary of the Company to such Person unless either:
(1)
the Company or such Subsidiary could create a Lien securing
Indebtedness in an amount equal to the Attributable Debt of such sale and leaseback
transaction without equally and ratably securing all the Notes pursuant Section 4.07
hereof; or
(2) within 120 days after such transaction the Company applied (and in any
such case the Company covenants that it will so apply) an amount equal to the greater
of
(a) the net proceeds of the sale of the real property leased
pursuant to such transaction or
(b) the Fair Market Value of the real property so leased at the
time of entering into such transaction (as determined by the Companys Board of
Directors)
to the prepayment, repayment, redemption, reduction or retirement (other than pursuant
to any mandatory sinking fund, mandatory redemption or mandatory prepayment provision or at
maturity) of Funded Debt of the Company; provided that, in any event, the Company may enter
into a sale and leaseback transaction covering that certain portion of ground bearing
municipal address 1333 South Clearview Parkway, Jefferson, Louisiana 70121, together with
all improvements thereon.
Section 4.11 Guarantees.
(a)
If the Company or any of its Subsidiaries acquires or creates another Domestic
Subsidiary on or after the date of this Indenture (other than an Excluded Subsidiary), or an
Excluded Subsidiary ceases to be an Excluded Subsidiary, then that newly acquired or created
Domestic Subsidiary, or former Excluded Subsidiary, must become a Guarantor and execute a
supplemental indenture (in the form of Exhibit E hereto providing for the Guarantee of the payment
of the Notes by such Domestic Subsidiary on the same basis as the Guarantors at the
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time of the
execution of such supplemental indenture) and deliver an Opinion of Counsel to the Trustee.
(b) The Company shall not permit any of its Subsidiaries which are not Guarantors,
directly or indirectly, to Guarantee any other Indebtedness of the Company or any Subsidiary that
is a Guarantor unless such Subsidiary simultaneously executes and delivers a supplemental indenture
providing for a Note Guarantee by such Subsidiary and delivers an Opinion of Counsel to the
Trustee.
ARTICLE FIVE
SUCCESSORS
Section 5.01
Merger Consolidation or Sale of Assets.
The Company shall not, directly or indirectly: (1) consolidate or merge with or into
another Person (whether or not the Company is the surviving corporation) or (2) sell, assign,
transfer, convey or otherwise dispose of all or substantially all of the properties and assets of
the Company and its Subsidiaries taken as a whole, in one or more related transactions, to another
Person or Persons, unless:
(1) either: (a) the Company is the surviving corporation; or (b) the
Person formed by or surviving any such consolidation or merger (if other than the Company)
or to which such sale, assignment, transfer, conveyance or other disposition shall have
been made (i) is a corporation organized or existing under the laws of the United States,
any state thereof or the District of Columbia and (ii) assumes all the obligations of the
Company under the Notes, this Indenture and the Registration Rights Agreement pursuant to
agreements reasonably satisfactory to the Trustee;
(2) immediately after giving effect to such transaction no Default or
Event of Default exists; and
(3) each Guarantor, unless such Guarantor is the Person with which the
Company has entered into a transaction under this covenant, shall have by amendment to its
Note Guarantee confirmed that its Note Guarantee shall apply to the obligations of the
Company or the surviving Person in accordance with the Notes and this Indenture.
In addition, the Company may not, directly or indirectly, lease all or substantially all
of its properties or assets, in one or more related transactions, to any other Person.
ARTICLE SIX
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
Each of the following is an Event of Default:
(1) default for 30 days in the payment when due of interest on, or
Additional Interest with respect to, the Notes;
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(2) default in payment when due (whether at maturity, upon acceleration,
redemption or otherwise) of the principal of, or premium, if any, on the Notes;
(3) failure by the Company or any of its Subsidiaries to comply with the
provisions described in Section 4.08 or 5.01 hereof;
(4) failure by the Company or any of its Subsidiaries for 30 days after
written notice by the Trustee or Holders representing 25% or more of the aggregate
principal amount of Notes outstanding to comply with any of the other agreements in this
Indenture;
(5) default under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any Indebtedness for money
borrowed by the Company or any of its Subsidiaries (or the payment of which is Guaranteed
by the Company or any of its Subsidiaries) whether such Indebtedness or Guarantee now
exists, or is created after the date of this Indenture, if that default:
(a) is caused by a failure to make any payment when due at the
final maturity of such Indebtedness (a Payment Default); or
(b) results in the acceleration of such Indebtedness prior to its
express maturity,
and, in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates $15.0 million or
more;
(6) failure by the Company or any of its Subsidiaries to pay final
judgments aggregating in excess of $15.0 million, which judgments are not paid, discharged
or stayed for a period of 60 days;
(7) except as permitted by this Indenture, any Note Guarantee of a
Significant Subsidiary (or any Subsidiaries that together would constitute a Significant
Subsidiary) shall be held in any judicial proceeding to be unenforceable or invalid or
shall cease for any reason to be in full force and effect or any Guarantor, or any Person
acting on behalf of any Guarantor, shall deny or disaffirm its obligations under its Note
Guarantee; and
(8) the Company or any Significant Subsidiary of the Company (or any
Subsidiaries that together would constitute a Significant Subsidiary), pursuant to or
within the meaning of Bankruptcy Law:
(i) commences a voluntary case, or
(ii) consents to the entry of an order for relief against it in an
involuntary case, or
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(iii) consents to the appointment of a custodian of it or for all
or substantially all of its property, or
(iv) makes a general assignment for the benefit of its creditors,
or
(v) generally is not paying its debts as they become due; and
(9) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against the Company or any Significant
Subsidiary of the Company (or any Subsidiaries that together would constitute a
Significant Subsidiary), in an involuntary case, or
(ii) appoints a custodian of the Company or any Significant
Subsidiary of the Company (or any Subsidiaries that together would constitute a
Significant Subsidiary), for all or substantially all of the property of the
Company, or
(iii) orders the liquidation of the Company or any Significant
Subsidiary of the Company (or any Subsidiaries that together would constitute a
Significant Subsidiary),
and the order or decree remains unstayed and in effect for 60 consecutive days.
Section 6.02 Acceleration.
If any Event of Default (other than an Event of Default specified in clause (8) or (9) of
Section 6.01) occurs and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the then outstanding Notes may declare all principal, premium, if any, accrued interest
and Additional Interest, if any, of the Notes to be due and payable immediately by notice in
writing to the Company specifying the Event of Default. Upon any such declaration, the Notes shall
become due and payable immediately. If any Event of Default specified in clause (8) or (9) of
Section 6.01 occurs and is continuing, then the principal, premium, if any, accrued interest and
Additional Interest, if any, on the Notes shall ipso facto become and be immediately due and
payable without any declaration or other action on the part of the Trustee or any Holder.
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, and Additional Interest, if
any, with respect to, the Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Notes or does
not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a
Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right
or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
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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
notice to the Trustee, may on behalf of the Holders of all of the Notes, waive an existing Default
or Event of Default and its consequences hereunder, except a continuing Default or Event of Default
in the payment of interest or Additional Interest, if any, on, or the principal of, the Notes
(including in connection with an offer to purchase) (provided, however, that the Holders of a
majority in principal amount of the then outstanding Notes may rescind an acceleration and its
consequences, including any related payment default that resulted from such acceleration). The
Company shall deliver to the Trustee an Officers Certificate stating that the requisite percentage
of Holders have consented to such waiver and attaching copies of such consents. In case of any
such waiver, the Company, the Trustee and the Holders shall be restored to their former positions
and rights hereunder and under the Notes, respectively. This Section 6.04 shall be in lieu of
Section 316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) of the TIA is hereby expressly
excluded from this Indenture and the Notes, as permitted by the TIA. Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent
or other Default or impair any right consequent thereon.
Section 6.05 Control by Majority.
Holders of a majority in principal amount of the then outstanding Notes may direct the
time, method and place of conducting any proceeding for exercising any remedy available to the
Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture that the Trustee determines may be
unduly prejudicial to the rights of other Holders of Notes or that may involve the Trustee in
personal liability. The Trustee may withhold from Holders of the Notes notice of any continuing
Default or Event of Default (except a Default or Event of Default relating to the payment of
principal or interest or Additional Interest, if any) if it determines that withholding notice is
in their interest.
Section 6.06 Limitation on Suits.
A
Holder may pursue a remedy with respect to this Indenture, or the Notes or the Note
Guarantees only if:
(a)
the Holder gives to the Trustee written notice of a continuing Event
of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if requested,
provide to the Trustee security and indemnity satisfactory to the Trustee against any loss,
liability or expense that might be incurred by it in connection with the request or
direction;
(d)
the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of and, if requested, the provision of indemnity;
and
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(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a direction inconsistent with
the request.
A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of
a Note or to obtain a preference or priority over another Holder of a Note.
Section 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Note
to receive payment of principal, premium, if any, interest on, and Additional Interest, if any,
with respect to, the Note, on or after the respective due dates expressed in the Note (including in
connection with an offer to purchase), or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the consent of such
Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) occurs and is continuing, the
Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal of, premium, if any, interest, and Additional
Interest, if any, remaining unpaid on the Notes and interest on overdue principal and premium, if
any, and, to the extent lawful, interest and Additional Interest, if any, and such further amount
as shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company
or any Guarantor (or any other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other securities or property
payable or deliverable on any such claims and any custodian in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof.
To the extent that the payment of any such compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07
hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the
same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends,
money, securities and other properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall
48
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, it shall pay out the money in the
following order:
First: to the Trustee, its agents and attorneys for amounts due under Section 7.07
hereof, including payment of all compensation, expense and liabilities incurred, and all
advances made, by the Trustee and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes for principal,
premium, if any, interest and Additional Interest, if any, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes for principal,
premium, if any, interest, and Additional Interest, if any, respectively; and
Third: to the Company or to such party as a court of competent jurisdiction shall
direct.
The Trustee may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys
fees, against any party litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a suit by the
Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more
than ten percent in principal amount of the then outstanding Notes.
ARTICLE SEVEN
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture, and use the same degree of care and skill in
its exercise, as a prudent person would exercise or use under the circumstances in the conduct of
such persons own affairs.
(b) Except during the continuance of an Event of Default:
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(i) the duties of the Trustee shall be determined solely by the express provisions of
this Indenture and the Trustee need perform only those duties that are specifically set
forth in this Indenture and no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liabilities for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.05
hereof.
(d) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or incur any liability in the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers. The Trustee shall be under no obligation to exercise any of its rights
and powers under this Indenture at the request of any Holders, unless such Holder shall have
offered to the Trustee security and indemnity satisfactory to it against any loss, costs, liability
or expense that might be incurred by it in connection with the request or direction.
(f) Money held in trust by the Trustee need not be segregated from other funds except to the
extent required by law. The Trustee shall not be liable for interest on any money or assets
received by it except as the Trustee may agree in writing with the Company
Section 7.02 Certain 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.
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(b) Before the Trustee acts or refrains from acting, it may require an Officers Certificate
or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such Officers Certificate or Opinion of Counsel. The Trustee
may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection from liability in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the
misconduct or negligence of any agent or attorney appointed with due care. 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 or other Person employed to act hereunder.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith
that it believes to be authorized or within the rights or powers conferred upon it by this
Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction
or notice from the Company shall be sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders unless such Holders shall
have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities that might be incurred by it in compliance with such request or direction.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of such
event is sent to the Trustee in accordance with Section 12.02 hereof, and such notice references
the Notes.
(h) The Trustee may request that the Company deliver a 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 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.
(i) The Trustee shall not be responsible or liable for any failure or delay in the
performance of its obligations under this Indenture arising out of or caused, directly or
indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of
God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage;
epidemics; riots; interruptions; loss or malfunctions of utilities, computer (hardware or software)
or communication services; accidents; labor disputes; acts of civil or military authority and
governmental action.
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(j) Anything in this Indenture notwithstanding, in no event shall the Trustee be liable for
special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but
not limited to loss of profit), even if the Company has been advised as to the likelihood of such
loss or damage and regardless of the form of action.
(k) The rights and remedies of the Trustee hereunder and under the other Note Documents are
cumulative and are not exclusive of any rights or remedies provided by law.
(l) Except with respect to Section 4.01, the Trustee shall have no duty to inquire as to the
performance by the Company of the covenants contained in Article Four or Article Five.
(m) No Depositary shall be deemed an agent of the Trustee, and the Trustee shall not be
responsible for any act or omission by any Depositary.
(n) The Trustee shall not be required to give any note, bond or surety in respect of the
trusts and powers under this Indenture.
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 become a creditor of, or otherwise deal with, the Company or any of its Affiliates with the
same rights it would have if it were not Trustee. However, in the event that the Trustee acquires
any conflicting interest as described in the TIA, it must eliminate such conflict within 90 days,
apply to the SEC for permission to continue as trustee or resign. Any Agent may do the same with
like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustees Disclaimer.
The Trustee shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture, it shall not be accountable for the Companys use of the proceeds from
the Notes or any money paid to the Company or upon the Companys direction under any provision of
this Indenture, it shall not be responsible for the use or application of any money received by any
Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital
herein or any statement in the Notes or any other document in connection with the sale of the Notes
or pursuant to this Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is known to the Trustee,
the Trustee shall mail to Holders of Notes a notice of the Default or Event of Default within 90
days after it occurs. Except in the case of a Default or Event of Default in payment of principal
of, premium and Additional Interest, if any, or interest on any Note, the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Notes. Notwithstanding the
foregoing, if any Notes are held in the form of a Global Note, the notice required to be provided
hereunder shall be conclusively presumed to have been given if delivered
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via facsimile, PDF or
other electronic transmission to the Depositary or to the Persons who are registered Holders of
Notes, as the case may be, with accompanying instructions directing such Depositary or such Persons
who are registered Holders of Notes to forward such notice to the beneficial holders of the Notes.
Section 7.06 Reports by Trustee to Holders of the Notes.
Within 60 days after each May 15 beginning with May 15, 2012, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA § 313(a) (but if no event described in TIA § 313(a) has
occurred within the twelve months preceding the reporting date, no report need be transmitted).
The Trustee also shall comply with TIA § 313(b)(2). The Trustee shall also transmit by mail all
reports as required by TIA § 313(c).
A copy of each report at the time of its mailing to the Holders of Notes shall be mailed to
the Company and filed with the SEC and each stock exchange on which the Notes are listed in
accordance with TIA § 313(d). The Company shall promptly notify the Trustee when the Notes are
listed on any stock exchange or any delisting thereof.
Section 7.07 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable compensation for its
acceptance of this Indenture and services hereunder in accordance with a written schedule provided
by the Trustee to the Company. The Trustees compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or made by it in
addition to the compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustees agents and counsel.
The Company shall indemnify the Trustee against any and all losses, liabilities or expenses
incurred by it arising out of or in connection with the acceptance or administration of its duties
under this Indenture, including the costs and expenses of enforcing this Indenture against the
Company (including this Section 7.07) and defending itself against any claim (whether asserted by
either of the Company or any Holder or any other person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except to the extent any such
loss, liability or expense may be attributable to its negligence or bad faith. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee
to so notify the Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made without its consent, which consent shall not be
unreasonably withheld.
The obligations of the Company under this Section 7.07 to compensate and indemnify the Trustee
and each predecessor Trustee and to pay or reimburse the Trustee and each predecessor Trustee for
reasonable expenses, disbursements and advances shall constitute an additional obligation hereunder
and, together with the Lien described below, shall survive the
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satisfaction and discharge, and
termination for any reason, of this Indenture and the resignation or removal of the Trustee and
each predecessor Trustee.
To secure the Companys payment obligations in this Section, the Trustee shall have a Lien
prior to the Notes on all money or property held or collected by the Trustee, except that held in
trust to pay principal and interest on particular Notes. Such Lien shall survive the satisfaction
and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(8) or (9) hereof occurs, the expenses and the compensation for the services (including
the fees and expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA § 313(b)(2) to the extent applicable.
Section 7.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustees acceptance of appointment as provided in this Section
7.08.
The Trustee may resign in writing at any time and be discharged from the trust hereby created
by so notifying the Company. The Holders of a majority in principal amount of the then outstanding
Notes may remove the Trustee by so notifying the Trustee and the Company in writing. The Company
may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Company shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company, or the Holders of Notes of at least 10% in
principal amount of the then outstanding Notes may petition at the expense of the Company any court
of competent jurisdiction for the appointment of a successor Trustee.
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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, such Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, provided all sums owing to the Trustee hereunder have been paid and subject to
the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Companys obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another Person, the successor Person without any further act shall
be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least $100.0
million as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements of TIA § 310(a)(1),
(2) and (5). The Trustee is subject to TIA § 310(b).
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA §
311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent
indicated therein. The Trustee hereby waives any right to set-off any claim that it may have
against the Company in any capacity (other than as Trustee and Paying Agent) against any of the
assets of the Company held by the Trustee; provided, however, that if the Trustee is or becomes a
lender of any other Indebtedness permitted hereunder to be pari passu with the Notes, then such
waiver shall not apply to the extent of such Indebtedness.
ARTICLE EIGHT
DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of the Board of Directors evidenced by a resolution set forth
in an Officers Certificate, at any time, elect to have either Section 8.02 or
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8.03 hereof be
applied to all outstanding Notes upon compliance with the conditions set forth below in this
Article Eight.
Section 8.02 Legal Defeasance and Discharge.
Upon the Companys exercise under Section 8.01 hereof of the option applicable to this Section
8.02, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be deemed to have been discharged from its obligations with respect to all outstanding
Notes and all obligations of the Guarantors shall be deemed to have been discharged with respect to
their obligations under the Note Guarantees on the date the conditions set forth below are
satisfied (hereinafter, Legal Defeasance). For this purpose, Legal Defeasance means that the
Company and the Guarantors shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes and Note Guarantees, respectively, which shall thereafter be
deemed to be outstanding only for the purposes of Section 8.05 hereof and the other Sections of
this Indenture referred to in (a) and (b) below, and to have satisfied all its other obligations
under such Notes and this Indenture (and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging the same), except for the following
provisions which shall survive until otherwise terminated or discharged hereunder:
(a) the rights of Holders of outstanding Notes to receive payments in respect of the
principal of, or interest or premium and Additional Interest, if any, on such Notes when
such payments are due from the trust referred to below,
(b) the Companys obligations with respect to such Notes under Article Two and Section
4.02 hereof,
(c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Companys and the Guarantors obligations in connection herewith, and
(d) this Article Eight.
Subject to compliance with this Article Eight, the Company may exercise its option under this
Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Companys exercise under Section 8.01 hereof of the option applicable to this Section
8.03, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be released from its obligations under the covenants contained in Sections 4.07, 4.08,
4.09, 4.10 and 4.11 hereof with respect to the outstanding Notes on and after the date the
conditions set forth in Section 8.04 are satisfied (hereinafter, Covenant Defeasance), and the
Notes shall thereafter be deemed not outstanding for the purposes of any direction, waiver,
consent or declaration or act of Holders (and the consequences of any thereof) in connection with
such covenants, but shall continue to be deemed outstanding for all other purposes hereunder (it
being understood that such Notes shall not be deemed outstanding for accounting purposes). For
this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the
56
Company
may omit to comply with and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the
remainder of this Indenture and such Notes shall be unaffected thereby. In addition, upon the
Companys 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) shall not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof
to the outstanding Notes:
(a) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a
combination thereof, in such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal of, or interest and
premium and Additional Interest, if any, on the outstanding Notes on the Stated Maturity or
on the applicable redemption date, as the case may be, and the Company must specify whether
the Notes are being defeased to maturity or to a particular redemption date;
(b) in the case of an election under Section 8.02 hereof, the Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that (i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (ii) since the date of this Indenture, there has been a
change in the applicable federal income tax law, in either case to the effect that, and
based thereon, such Opinion of Counsel shall 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;
(c) in the case of an election under Section 8.03 hereof, the Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that the Holders of the outstanding Notes 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;
(d) no Default or Event of Default shall have occurred and be continuing either: (i) on
the date of such deposit; or (ii) insofar as Sections 6.01(8) and (9) hereof are concerned,
at any time in the period ending on the 123rd day after the date of deposit;
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(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under any material agreement or instrument to which
the Company or any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(f) the Company must have delivered to the Trustee an Opinion of Counsel to the effect
that, (1) assuming no intervening bankruptcy of the Company or any Guarantor between the
date of deposit and the 123rd day following the deposit and assuming that no
Holder is an insider of the Company under applicable bankruptcy law, after the
123rd day following the deposit, the trust funds will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors rights generally, including Section 547 of the United States Bankruptcy Code, and
(2) the creation of the defeasance trust does not violate the Investment Company Act of
1940;
(g) the Company must deliver to the Trustee an Officers Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders of Notes over
the other creditors of the Company with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others;
(h) if the Notes are to be redeemed prior to their Stated Maturity, the Company must
deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified
redemption date; and
(i) the Company must deliver to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
Section 8.05 Deposited Money and Government Securities to Be Held in Trust; Other
Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable Government Securities (including
the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 8.05, the Trustee) pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company 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 Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the cash or non-callable Government Securities deposited pursuant to Section
8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article Eight to the contrary notwithstanding, the Trustee shall deliver or
pay to the Company from time to time upon the request of the Company any money or
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non-callable
Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a) hereof),
are in excess of the amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to the Company.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium, if any, or interest on any Note and remaining
unclaimed for two years after such principal, and premium, if any, or interest has become due and
payable shall be paid to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in the New York Times and The Wall
Street Journal (national edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such notification or
publication, any unclaimed balance of such money then remaining shall be repaid to the Company.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable
Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason
of any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Companys obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03
hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that, if the
Company makes any payment of principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Company, the Guarantors and the Trustee
may amend or supplement this Indenture or the Notes without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
59
(b) to provide for uncertificated Notes in addition to or in place of certificated
Notes;
(c) to provide for the assumption of the Companys or any Guarantors obligations to
the Holders of the Notes in the case of a merger or consolidation or sale of all or
substantially all of the Companys or such Guarantors assets;
(d) to make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the legal rights hereunder of any
Holder of a Note;
(e) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA;
(f) to comply with the provisions described in Section 4.11 hereof;
(g) to evidence and provide for the acceptance of appointment by a successor Trustee;
or
(h) to provide for the issuance of Additional Notes in accordance with the Indenture.
Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the Trustee shall join with the Company
in the execution of any amended or supplemental Indenture authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and stipulations that may be therein
contained, but the Trustee shall not be obligated to enter into such amended or supplemental
Indenture that affects its own rights, duties or immunities under this Indenture or otherwise.
Section 9.02 With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Company, the Guarantors and the Trustee may
amend or supplement this Indenture or the Notes with the consent of the Holders of at least a
majority in principal amount of the Notes (including Additional Notes, if any) then outstanding
(including, without limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default
or Event of Default or compliance with any provision of this Indenture or the Notes may be waived
with the consent of the Holders of a majority in principal amount of the then outstanding Notes
(including Additional Notes, if any) (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, Notes).
The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Persons entitled to consent to any indenture supplemental hereto. If a record date
is fixed, the Holders on such record date, or its duly designated proxies, and only such Persons,
shall be entitled to consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided that unless such consent shall have become
60
effective by
virtue of the requisite percentage having been obtained prior to the date which is 90 days after
such record date, any such consent previously given shall automatically and without further action
by any Holder be cancelled and of no further effect.
Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental Indenture, and upon the filing with
the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the
Trustee shall join with the Company in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture directly affects the Trustees own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes under this Section 9.02 to
approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such
consent approves the substance thereof.
After an amendment, supplement or waiver under this Section becomes effective, the Company
shall mail to the Holders of Notes affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in
aggregate principal amount of the then outstanding Notes (including Additional Notes, if any) may
waive compliance in a particular instance by the Company with any provision of this Indenture, or
the Notes. However, without the consent of each Holder affected, an amendment or waiver under this
Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must consent to an amendment,
supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note or change the
optional redemption date or optional redemption price of the Notes from those stated in
Section 3.07;
(c) reduce the rate of or change the time for payment of interest on any Note;
(d) waive a Default or Event of Default in the payment of principal of, or interest or
premium, or Additional Interest, if any, on the Notes (except a rescission of acceleration
of the Notes (including Additional Notes, if any) by the Holders of at least a majority in
aggregate principal amount of the Notes and a waiver of the payment default that resulted
from such acceleration);
(e) make any Note payable in money other than U.S. dollars;
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(f) make any change in the provisions of this Indenture relating to waivers of past
Defaults or Events of Default or the rights of Holders of Notes to receive payments of
principal of, or interest or premium or Additional Interest, if any, on the Notes;
(g) release any Guarantor from any of its obligations under its Note Guarantee or this
Indenture, except in accordance with the terms of this Indenture;
(h) impair the right to institute suit for the enforcement of any payment on or with
respect to the Notes or the Note Guarantees;
(i) amend, change or modify the obligation of the Company to make and consummate a
Change of Control Offer in the event of a Change of Control in accordance with Section 4.08
hereof after such Change of Control has occurred, including, in each case, amending,
changing or modifying any definition relating thereto;
(j) except as otherwise permitted under Section 5.01 or Section 10.04, consent to the
assignment or transfer by the Company or any Guarantor of any of their rights or obligations
under this Indenture; or
(k) make any change in the preceding amendment and waiver provisions.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall be set forth in an amended
or supplemental Indenture that complies with the TIA as then in effect.
Section 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a
Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holders Note, even if notation of
the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written notice of revocation
before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds every Holder.
Section 9.05 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment, supplement or waiver on any
Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee
shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.
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Section 9.06 Trustee to Sign Amendments, Etc.
The Trustee shall sign any amended or supplemental indenture or Note authorized pursuant to
this Article Nine if the amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. The Company may not sign an amendment or supplemental
Indenture or Note until its Board of Directors approves it. In executing any amended or
supplemental indenture or Note, the Trustee shall be entitled to receive and (subject to Section
7.01 hereof) shall be fully protected in relying upon 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 TEN
NOTE GUARANTEES
Section 10.01 Guarantee.
Subject to this Article Ten each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and
to the Trustee and its successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the
principal of and interest on the Notes will be promptly paid in full when due, whether at maturity,
by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on
the Notes, if any, if lawful (subject in all cases to any applicable grace period provided herein),
and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will
be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(b) in case of any extension of time of payment or renewal of any Notes or any of such other
obligations, that same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever
reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each
Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
The Guarantors hereby agree that their obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with
respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a Guarantor. Subject to Section 6.06 hereof, each Guarantor
hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event
of insolvency or bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenant that this Note Guarantee shall not
be discharged except by complete performance of the obligations contained in the Notes and this
Indenture.
If any Holder or the Trustee is required by any court or otherwise to return to the Company,
the Guarantors or any custodian, trustee, liquidator or other similar official acting in
63
relation
to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder,
this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and
effect.
Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to
the Holders in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on
the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Six hereof for the purposes
of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such obligations as provided in Article Six hereof, such obligations
(whether or not due and payable) shall forthwith become due and payable by the Guarantors for the
purpose of this Note Guarantee. The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the rights of the
Holders under the Note Guarantee.
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 under its Note Guarantee shall be
limited to the extent necessary so that they shall not constitute a fraudulent transfer or
conveyance.
Section 10.03 Execution and Delivery of Note Guarantee.
To evidence its Note Guarantee set forth in Section 10.01, each Guarantor hereby agrees that a
notation of such Note Guarantee substantially in the form included in Exhibit D shall be endorsed
by an Officer or other authorized Person of such Guarantor on each Note authenticated and delivered
by the Trustee.
Each Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01 shall remain
in full force and effect notwithstanding any failure to endorse on each Note a notation of such
Note Guarantee.
If an Officer whose signature is on this Indenture or on the Note Guarantee no longer holds
that office at the time the Trustee authenticates the Note on which a Note Guarantee is endorsed,
the Note Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the
Guarantors.
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In the event that the Company or any of its Subsidiaries creates or acquires any new Domestic
Subsidiaries subsequent to the date of this Indenture, if required by Section 4.11(a) hereof, the
Company shall cause such Domestic Subsidiaries to execute supplemental indentures to this Indenture
and Note Guarantees in accordance with Section 4.11(a) hereof and this Article Ten, to the extent
applicable.
Section 10.04 Releases Following Sale of Assets.
Any Guarantor will be released and relieved of any obligations under its Note Guarantee, (i)
in connection with any sale or other disposition of all of the Capital Stock of a Guarantor to a
Person that is not (either before or after giving effect to such transaction) an Affiliate of the
Company; or (ii) solely in the case of a Note Guarantee created pursuant to Section 4.11(b) hereof,
upon the release or discharge of the Guarantee which resulted in the creation of such Note
Guarantee, except a discharge or release by or as a result of payment under such Guarantee.
Upon delivery by the Company to the Trustee of an Officers Certificate and an Opinion of
Counsel to the effect that such sale or other disposition was made by the Company in accordance
with the provisions of this Indenture, the Trustee shall execute any documents reasonably required
in order to evidence the release of any Guarantor from its obligations under its Note Guarantee.
Any Guarantor not released from its obligations under its Note Guarantee shall remain liable
for the full amount of principal of and interest on the Notes and for the other obligations of any
Guarantor under this Indenture as provided in this Article Ten.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge.
This Indenture shall be discharged and shall cease to be of further effect as to all Notes
issued thereunder, when:
(a) either:
(i) all Notes that have been authenticated (except lost, stolen or destroyed Notes that
have been replaced or paid and Notes for whose payment money has theretofore been deposited
in trust and thereafter repaid to the Company) have been delivered to the Trustee for
cancellation; or
(ii) all Notes that have not been delivered to the Trustee for cancellation have become
due and payable by reason of the making of a notice of redemption or otherwise or will
become due and payable within one year and the Company has irrevocably deposited or caused
to be deposited with the Trustee as trust funds in trust solely for the benefit of the
Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof,
in such amounts as will be sufficient without consideration of any reinvestment of interest,
to pay and discharge the entire Indebtedness on the Notes not
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delivered to the Trustee for
cancellation for principal, premium, accrued interest and Additional Interest, if any, to
the date of maturity or redemption;
(b) no Default or Event of Default shall have occurred and be continuing on the date of
such deposit or shall occur as a result of such deposit and such deposit will not result in
a breach or violation of, or constitute a default under, any other instrument to which the
Company or any Guarantor is a party or by which the Company or any Guarantor is bound;
(c) the Company or any Guarantor has paid or caused to be paid all sums payable by it
under this Indenture; and
(d) the Company has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Notes at maturity or the
redemption date, as the case may be.
The Company shall deliver an Officers Certificate and an Opinion of Counsel to the Trustee
stating that all conditions precedent to satisfaction and discharge have been satisfied.
Notwithstanding the above, the Trustee shall pay to the Company from time to time upon its
request any cash or Government Securities held by it as provided in this section which, in the
opinion of a nationally recognized firm of independent public accountants expressed in a written
certification delivered to the Trustee, are in excess of the amount thereof that would then be
required to be deposited to effect a satisfaction and discharge under this Article Eleven.
Section 11.02 Deposited Money and Government Securities to Be Held in Trust; Other
Miscellaneous Provisions.
Subject to Section 11.03 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 11.02, the Trustee) pursuant to Section 11.01 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders
of such Notes of all sums due and to become due thereon in respect of principal, premium and
Additional Interest, if any, and interest, but such money shall be segregated from other funds
except to the extent required by law.
Section 11.03 Repayment to the Company.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium and Additional Interest, if any, or interest on
any Note and remaining unclaimed for two years after such principal, and premium and Additional
Interest, if any, or interest has become due and payable shall be paid to the Company on its
request or (if then held by the Company) shall be discharged from such trust; and the Holder of
such Note shall thereafter look only to the Company for payment thereof, and all liability
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of the
Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the Company cause to be
published once, in the New York Times or The Wall Street Journal (national edition), notice that
such money remains unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such notification or publication, any unclaimed balance of such money then
remaining shall be repaid to the Company.
ARTICLE TWELVE
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 shall control.
Section 12.02 Notices.
Any notice or communication by the Company or any Guarantor, on the one hand, or the Trustee,
on the other hand, to the other is duly given if in writing and delivered in Person or mailed by
first class mail (registered or certified, return receipt requested), telecopier or overnight air
courier guaranteeing next day delivery, to the others address:
If to the Company or any Guarantor:
Stewart Enterprises, Inc.
1333 S. Clearview Parkway
Jefferson, LA 70121
Telecopier No.: (504) 729-1407
Attention: Lewis J. Derbes, Jr., Senior Vice President, Chief Financial Officer and
Treasurer
If to the Trustee:
U.S. Bank National Association
60 Livingston Avenue
EP-MN-WS3C
St. Paul, MN 55107-1419
Telecopier No.: (651) 495-8097
Attention: Corporate Trust Services
The Company, Guarantors or the Trustee, by notice to the others may designate additional or
different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be deemed to have been
duly given: 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 telecopied; and
the next Business Day after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
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Any notice or communication to a Holder shall be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar. Any notice or communication shall also be
so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.
If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee
and each Agent at the same time.
Section 12.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to its rights
under this Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA § 312(c).
Section 12.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:
(a) an Officers Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 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
(b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 12.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants have been satisfied.
Section 12.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall comply
with the provisions of TIA § 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion has read such
covenant or condition;
(b) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
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(c) a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been satisfied.
Section 12.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar
or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
Section 12.07 No Personal Liability of Directors, Officers, Employees and
Stockholders.
No director, officer, employee, incorporator or stockholder of the Company or any Guarantor as
such shall have any liability for any obligations of the Company or the Guarantors under the Notes,
this Indenture, the 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 these
individuals from this 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.
Section 12.08 Governing Law.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS
INDENTURE, THE NOTES AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
Section 12.09 Consent to Jurisdiction.
Any legal suit, action or proceeding arising out of or based upon this Indenture or the
transactions contemplated hereby (Related Proceedings) may be instituted in the federal courts of
the United States of America located in the City of New York or the courts of the State of New York
in each case located in the City of New York (collectively, the Specified Courts), and each party
irrevocably submits to the non-exclusive jurisdiction (except for proceedings instituted in regard
to the enforcement of a judgment of any such court (a Related Judgment), as to which such
jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of
any process, summons, notice or document by mail to such partys address set forth above shall be
effective service of process for any suit, action or other proceeding brought in any such court.
The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit,
action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and
agree not to plead or claim in any such court has been brought in an inconvenient forum.
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Section 12.10 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the
Company or any of its Subsidiaries or of any other Person. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 12.11 Successors.
All agreements of the Company in this Indenture and the Notes shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors. All agreements of each
Guarantor in this Indenture shall bind its successors, except as otherwise provided in Section
10.04.
Section 12.12 Severability.
In case any provision in this Indenture or the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 12.13 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
Section 12.14 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by the Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders in person or by
agents duly appointed in writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the Act of the
Holders signing such instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company if made in the manner provided in this Section
12.14.
(b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to such witness, notary or officer the execution
thereof. Where such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof of authority. The
fact and date of the execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee deems sufficient.
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(c) Notwithstanding anything to the contrary contained in this Section 12.14, the principal
amount and serial numbers of Notes held by any Holder, and the date of holding the same, shall be
proved by the register of the Notes maintained by the Registrar as provided in Section 2.04 hereof.
(d) If the Company shall solicit from the Holders of the Notes any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by
or pursuant to a resolution of its Board of Directors, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so. Notwithstanding
TIA § 316(c), such record date shall be the record date specified in or pursuant to such
resolution, which shall be a date not earlier than the date 30 days prior to the first solicitation
of Holders generally in connection therewith or the date of the most recent list of Holders
forwarded to the Trustee prior to such solicitation pursuant to Section 2.06 hereof and not later
than the date such solicitation is completed. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the close of business on such record date shall
be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion
of the then outstanding Notes have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that purpose the then
outstanding Notes shall be computed as of such record date; provided that no such authorization,
agreement or consent by the Holders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than eleven months after
the record date.
(e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note
issued upon the registration or transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Note.
(f) Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder
with regard to any particular Note may do so itself with regard to all or any part of the principal
amount of such Note or by one or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such principal amount.
Section 12.15 Benefit of Indenture.
Nothing, in this Indenture or in the Notes, express or implied, shall give to any Person,
other than the parties hereto, any Paying Agent, any Registrar and its successors hereunder, and
the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 12.16 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
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considered a part of
this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
Section 12.17 Waiver of Jury Trial.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS INDENTURE OR THE NOTES.
Section 12.18 U.S.A. Patriot Act.
The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act
(the Patriot Act), the Trustee, like all financial institutions and in order to help fight the
funding of terrorism and money laundering, is required to obtain, verify, and record information
that identifies each person or legal entity that establishes a relationship or opens an account
with the Trustee. The parties to this Indenture agree that they shall provide the Trustee with
such information as it may request in order for the Trustee to satisfy the requirements of the
Patriot Act.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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SIGNATURES
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STEWART ENTERPRISES, INC.
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By: |
/s/ Lewis J. Derbes, Jr.
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Name: |
Lewis J. Derbes, Jr. |
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Title: |
Senior Vice President and Chief Financial Officer |
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GUARANTORS:
FOREST HILLS CEMETERY, INC.
GRIFFIN-LEGGETT INSURANCE AGENCY, INC.
GROSS FUNERAL HOME, INC.
S. E. FUNERAL HOMES OF ARKANSAS, INC.
ALL SOULS MORTUARY, INC.
BARSTOW FUNERAL HOMES, INC.
BUCHHEIM FAMILY, INC.
CALVARY MORTUARY OF LOS ANGELES, CALIFORNIA, INC.
CATHOLIC MORTUARY SERVICES, INC.
DeYOUNG MEMORIAL CHAPEL, INC.
HOLY CROSS MORTUARY OF CULVER CITY, CALIFORNIA, INC.
LOMBARD & CO.
N.D. DAVIS & ASSOCIATES, INC.
QUEEN OF HEAVEN MORTUARY, INC.
S.E. ACQUISITION OF GLENDALE, CALIFORNIA, INC.
S.E. ACQUISITION OF LANCASTER, CALIFORNIA, INC.
S.E. ACQUISITION OF LOS OSOS MORTUARY AND MEMORIAL PARK, INC.
S.E. ACQUISITION OF OAKHURST, CALIFORNIA, INC.
SAN FERNANDO MISSION MORTUARY, INC.
SANTA CLARA MORTUARY, INC.
SDCA HOLDINGS, INC.
SIMPLICITY PLAN OF CALIFORNIA, INC.
STEWART PRE-NEED SERVICES, INC.
STRICKLIN/SNIVELY MORTUARY
SENTINEL CREMATION SOCIETIES, INC.
CREMATION SOCIETY NORTHWEST, INC.
E.R. BUTTERWORTH & SONS
SAN DIEGO CEMETERY ASSOCIATION
CHEATHAM HILL MEMORIAL PARK, INC.
THE SIMPLICITY PLAN, INC.
KILGORE-GREEN FUNERAL HOME, INC.
S.E. CEMETERIES OF ALABAMA, INC.
S.E. COMBINED SERVICES OF ALABAMA, INC.
S.E. FUNERAL HOMES OF ALABAMA, INC.
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ROSE HAVEN FUNERAL HOME AND CEMETERY, INC.
S.E. FUNERAL HOMES OF ILLINOIS, INC.
KNUTSON FUNERAL HOMES, INC.
PAULEY FUNERAL HOME, INC.
D.W. NEWCOMERS SONS, INC.
DWN PROPERTIES, INC.
THE LINCOLN MEMORIAL PARK CEMETERY ASSOCIATION
S.E. FUNERAL HOMES OF TENNESSEE, INC.
PASADENA FUNERAL HOME, INC.
S.E. FUNERAL HOMES OF TEXAS, INC.
S.E. CEMETERIES OF TEXAS, INC.
S.E. CEMETERIES OF WISCONSIN, INC.
FUNERAL SECURITY PLANS, INC.
HAISTEN FUNERAL HOME OF HENRY COUNTY, INC.
BOUNDS FUNERAL HOME, INC.
CEDAR HILL CEMETERY COMPANY, INC.
CREST LAWN MEMORIAL GARDENS, INC.
FORT LINCOLN CEMETERY, INC.
FORT LINCOLN FUNERAL HOME, INC.
HILLCREST MEMORIAL CEMETERY, INC.
HINES-RINALDI FUNERAL HOME, INC.
JOHN M. TAYLOR FUNERAL HOME, INC.
LOUDON PARK CEMETERY COMPANY
LOUDON PARK FUNERAL HOME, INC.
NATIONAL HARMONY MEMORIAL PARK, INC.
PARKLAWN, INC.
SIMPLE TRIBUTE OF MARYLAND, INC.
THE PARKWOOD CEMETERY COMPANY
WILLIAM W. CHAMBERS, INC.
CATAWBA MEMORIAL PARK, INC.
GARRETT HILLCREST, INC.
McLAURINS FUNERAL HOME, INC.
S.E. CEMETERIES OF NORTH CAROLINA, INC.
S.E. FUNERAL HOMES OF NORTH CAROLINA, INC.
GEORGE WASHINGTON MEMORIAL PARK, INC.
KIRK & NICE SUBURBAN CHAPEL, INC.
KIRK & NICE, INC.
S.E. ACQUISITION OF PENNSYLVANIA, INC.
SUNSET MEMORIAL PARK COMPANY
DUNBAR FUNERAL HOME
S.E. CEMETERIES OF SOUTH CAROLINA, INC.
S.E. COMBINED SERVICES OF SOUTH CAROLINA, INC.
S.E. FUNERAL HOMES OF SOUTH CAROLINA, INC.
MONTE VISTA BURIAL PARK, INC.
S.E. COMBINED SERVICES OF TENNESSEE, INC.
CLINCH VALLEY MEMORIAL CEMETERY, INC.
EVERLY PFP, INC.
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BARTLETT-BURDETTE-COX FUNERAL HOME, INC.
CASDORPH & CURRY FUNERAL HOME, INC.
EASTERN CEMETERY ASSOCIATES, INC.
KLINGEL-CARPENTER MORTUARY, INC.
LOI CHARLESTON, INC.
NATIONAL EXCHANGE TRUST, LTD
NATIONAL FUNERAL SERVICES, INCORPORATED
S.E. ACQUISITION OF MALDEN, WEST VIRGINIA, INC.
S.E. CEMETERIES OF WEST VIRGINIA, INC.
S.E. FUNERAL HOMES OF WEST VIRGINIA, INC.
WILSON FUNERAL HOME, INC.
DRUID RIDGE CEMETERY COMPANY
PARKWOOD MANAGEMENT COMPANY
CHAPEL OF THE ROSES, INC.
CHAPEL OF THE VALLEY FUNERAL HOME, INC.
J.P. FINLEY AND SON MORTUARY, INC.
SUNSET HILLS MEMORIAL PARK
ABBY PLAN OF TEXAS, INC.
EMERALD HILLS FUNERAL CORPORATION
GUARDIAN CREMATION SOCIETY, INC.
SIMPLICITY PLAN OF TEXAS, INC.
S.E. COMBINED SERVICES OF TEXAS, INC.
S.E. FUNERAL HOME OF COPPELL, TEXAS, INC.
GRIFFIN-LEGGETT, INC.
DBM-HUNTINGTON, INC.
LASSILA FUNERAL CHAPELS, INC.
S.E. ACQUISITION OF CALIFORNIA, INC.
VICTOR V. DESROSIER, INC.
CEMETERY MANAGEMENT, INC.
EASTLAWN CORPORATION
HOLLY HILL MEMORIAL PARK, INC.
BALLYHOO INNOVATIONS, INC.
STEWART ENTERPRISES (EUROPE), INC.
S.E. MID-ATLANTIC, INC.
LAKEWOOD MEMORIAL PARK, INC.
MONTLAWN MEMORIAL PARK, INC.
S.E. ACQUISITION OF OREGON, INC.
THE NASHVILLE HISTORIC CEMETERY ASSOCIATION, INC.
LAKE LAWN METAIRIE FUNERAL HOME
S.E. FUNERAL HOMES OF FLORIDA, LLC
S.E. CEMETERIES OF FLORIDA, LLC
S.E. COMBINED SERVICES OF FLORIDA, LLC
EMPRESAS STEWART-FUNERARIAS, INC.
ENDURING MEMORIES, INC.
HAWTHORNE & WREN, INC.
NAILKNOT, LLC
S.E. CEMETERIES OF VIRGINIA, LLC
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S.E. FUNERAL HOMES OF VIRGINIA, LLC
STEWART RESOURCE CENTER, LLC
ACME MAUSOLEUM, LLC
S.E. CEMETERIES OF LOUISIANA, LLC
S.E. FUNERAL HOMES OF LOUISIANA, LLC
STEWART SERVICES, LLC
SYMPATHYSHOP.COM, L.L.C.
S.E. SOUTH-CENTRAL, LLC
KANAWHA PLAZA PARTNERSHIP
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/s/ Lewis J. Derbes, Jr.
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Lewis J. Derbes, Jr. |
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Title: |
Authorized Signatory |
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U.S. Bank National Association as Trustee
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EXHIBIT A1
[Face of Note]
CUSIP ___________
STEWART ENTERPRISES, INC.
6.50% Senior Notes due 2019
Issue Date: April 18, 2011
Stewart Enterprises, Inc., a Louisiana Corporation (the Company, which term includes any
successor under the Indenture hereinafter referred to), for value received, promises to pay to CEDE
& CO., or its registered assigns, the principal sum of [ ] DOLLARS ($[ ]) on
April 15, 2019.
Interest Payment Dates: April 15 and October 15, commencing October 15, 2011.
Record Dates: April 1 and October 1.
Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by
its duly authorized officers.
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STEWART ENTERPRISES, INC.
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Name: |
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A1-1
This is one of the 6.50% Senior Notes due 2019 described in the within-mentioned Indenture.
Dated:
U.S. Bank National Association, as Trustee
A1-2
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), TO ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS
NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.
THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE SECURITIES ACT), OR ANY STATE OR FOREIGN SECURITIES LAWS. NEITHER THIS
NOTE NOR THE GUARANTEES ENDORSED HEREON NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON BY
ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE
WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED
HEREON (OR ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON) (THE RESALE
RESTRICTION TERMINATION DATE) ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (RULE 144A), TO A PERSON IT
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE
A1-3
THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT OR (E) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE) OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANYS AND THE TRUSTEES RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D) PRIOR TO THE END OF THE 40-DAY DISTRIBUTION
COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE
(E) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii) IN EACH OF
THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE
IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
A1-4
[Reverse Side of Note]
STEWART ENTERPRISES, INC.
6.50% Senior Notes due 2019
Capitalized terms used herein shall have the meanings assigned to them in this Indenture
referred to below unless otherwise indicated.
1. Interest. The Company promises to pay interest on the principal amount of this Note at
6.50% per annum from the date hereof until maturity and shall pay the Additional Interest, if any,
payable pursuant to Section 5 of the Registration Rights Agreement referred to below. The Company
shall pay interest and Additional Interest, if any, semi-annually in arrears on April 15 and
October 15 of each year, or if any such day is not a Business Day, on the next succeeding Business
Day (each an Interest Payment Date). Interest on the Notes shall accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the date of original
issuance; provided that if there is no existing Default in the payment of interest, and if this
Note is authenticated between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date;
provided further that the first Interest Payment Date shall be October 15, 2011. The Company shall
pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal and premium, if any, from time to time on demand at a rate that is 1% per annum
in excess of the rate then in effect; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest and Additional
Interest (without regard to any applicable grace periods) from time to time on demand at the same
rate to the extent lawful. Interest shall be computed on the basis of a 360-day year of twelve
30-day months.
2. Method of Payment. The Company shall pay interest on the Notes (except defaulted interest)
and Additional Interest, if any, to the Persons who are registered Holders of Notes at the close of
business on the April 1 or October 1 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 2.13 of the Indenture with respect to defaulted interest. The Notes shall be payable as
to principal, premium and Additional Interest, if any, and interest at the office or agency of the
Company maintained for such purpose in The City of New York maintained for such purposes, or, at
the option of the Company, payment of interest and Additional Interest, if any, may be made by
check mailed to the Holders at their addresses set forth in the register of Holders, and provided
that payment by wire transfer of immediately available funds shall be required with respect to
principal of and interest, premium and Additional Interest, if any, on, all Global Notes and all
other Notes the Holders of which shall have provided wire transfer instructions to the Company or
the Paying Agent. Such payment shall be in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, U.S. Bank National Association, the Trustee under
the Indenture, shall act as Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without prior notice to any Holder. The Company or any of its Subsidiaries may act in
any such capacity.
A1-5
4. Indenture. The Company issued the Notes under an Indenture dated as of April 18, 2011
(Indenture) among the Company, the Guarantors and the Trustee. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended. The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. To the extent any provision
of this Note conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling. The Indenture pursuant to which this Note is issued
provides that an unlimited aggregate principal amount of Additional Notes may be issued thereunder.
5. Optional Redemption. (a) Except as set forth in paragraph 5(b) below, the Company shall
not have the option to redeem the Notes prior to April 15, 2014. On or after April 15, 2014, the
Company shall have the option to redeem the Notes, in whole or in part, upon not less than 30 nor
more than 60 days prior notice, at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest and Additional Interest, if any, thereon
to the applicable redemption date, subject to the rights of the Holders of the Notes on the
relevant record date to receive interest on the relevant interest payment date, if redeemed during
the twelve-month period beginning on April 15 of the years indicated below:
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2014 |
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104.875 |
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2016 |
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101.625 |
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2017 and thereafter |
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100.000 |
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(b) At any time prior to April 15, 2014, the Company may redeem all or a part of the Notes,
upon not less than 30 nor more than 60 days notice, at a redemption price equal to the sum of (i)
100% of the principal amount thereof, plus (ii) the Applicable Premium as of the date of
redemption, plus (iii) accrued and unpaid interest and Additional Interest, if any, thereon, to the
applicable redemption date, subject to the rights of the Holders of the Notes on the relevant
record date to receive interest on the relevant interest payment date.
6. Mandatory Redemption. The Company shall not be required to make mandatory redemption
payments or sinking fund payments with respect to the Notes.
7. Selection and Notice of Redemption. If less than all of the Notes are to be redeemed at
any time, the Trustee will select Notes for redemption as follows: (i) if the Notes are listed, in
compliance with the requirements of the principal national securities exchange on which the Notes
are listed, or (ii) if the Notes are not so listed, on a pro rata basis, by lot or by any method as
the Trustee deems fair and appropriate. No Notes of $2,000 or less may be redeemed in part.
Notices of redemption shall 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.
Notices of redemption may not be conditional. If any Note is to be redeemed in part only, the
notice of redemption that relates to that Note shall state the portion of the
A1-6
principal amount thereof to be redeemed. A new Note in principal amount equal to the
unredeemed portion of the original Note will be issued in the name of the Holder thereof upon
cancellation of the original Note. Notes called for redemption become due on the date fixed for
redemption. On and after the redemption date, interest and Additional Interest, if any, cease to
accrue on Notes or portions of them called for redemption.
8. Repurchase at Option of Holder. Upon the occurrence of a Change of Control, each Holder of
Notes shall have the right to require the Company to repurchase all or any part (equal to minimum
denominations of $2,000 and integral multiples of $1,000 in excess thereof) of such Holders Notes
pursuant to the offer described below (the Change of Control Offer") at an offer price in cash
equal to 101% of the aggregate principal amount repurchased plus accrued and unpaid interest and
Additional Interest thereon, if any, to the date of purchase (the Change of Control Payment").
Within 30 days following any Change of Control, the Company shall mail a notice to each Holder
describing the transaction or transactions that constitute the Change of Control and offering to
repurchase Notes on the date specified in such notice which shall be no earlier than 30 days and no
later than 60 days from the date such notice is mailed, pursuant to the procedures required by the
Indenture and described in such notice.
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 thereof. The transfer of Notes
may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer
documents and the Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company is not required to transfer or exchange any Note selected
for redemption. Also, the Company is not required to transfer or exchange any Note for a period of
15 days before a selection of Notes to be redeemed.
10. Persons Deemed Owners. The registered Holder of a Note will be treated as its owner for
all purposes.
11. Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture or the
Notes may be amended or supplemented with the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding and 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), and any existing Default or compliance with any provision
of the Indenture or the Notes may be waived with the consent of the Holders of a majority in
principal of the Notes then outstanding and 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). Without the consent of any Holder of Notes, the Indenture or
the Notes may be amended or supplemented to cure any ambiguity, defect or inconsistency, to provide
for uncertificated Notes in addition to or in place of certificated Notes, to provide for the
assumption of the Companys or any Guarantors obligations to Holders of the Notes in the case of a
merger or consolidation or sale of all or substantially all of the assets of the Company or any
Guarantor, to make any change that would provide any additional rights or benefits to the Holders
of the Notes or that does not adversely affect the legal rights under the Indenture of any such
Holder to comply with the provisions described in Section 4.11 of the Indenture, to evidence and
provide for the acceptance of
A1-7
appointment by a successor Trustee, or to provide for the issuance of Additional Notes in
accordance with the Indenture.
12. Defaults and Remedies. In the case of an Event of Default, as defined in the Indenture
arising from certain events of bankruptcy or insolvency with respect to the Company or any of its
Restricted Subsidiaries, all outstanding Notes will become due and payable immediately without
further action or notice. If any other Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the then outstanding Notes may declare all the
Notes to be due and payable immediately by notice in writing to the Company specifying the Event of
Default. Holders of the Notes may not enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Notes notice of any continuing Default or Event of Default (except a
Default or Event of Default relating to the payment of principal or interest or Additional
Interest, if any) if it determines that withholding notice is in their interest. The Holders of a
majority in aggregate principal amount of the Notes then outstanding by notice to the Trustee may,
on behalf of the Holders of all of the Notes, waive any existing Default or Event of Default and
its consequences under the Indenture except a continuing Default or Event of Default in the payment
of interest or Additional Interest, if any, on, or the principal of, the Notes.
In the case of any Event of Default occurring by reason of any willful action or inaction
taken or not taken by the Company or on their behalf with the intention of avoiding payment of the
premium that the Company would have had to pay if the Company then had elected to redeem the Notes
pursuant to the optional redemption provisions of the Indenture, an equivalent premium shall also
become and be immediately due and payable to the extent permitted by law upon the acceleration of
the Notes. If an Event of Default occurs during any time that the Notes are outstanding, by reason
of any willful action (or inaction) taken (or not taken) by the Company or on its behalf with the
intention of avoiding the prohibition on redemption of the Notes, then the premium specified in the
Indenture shall also become immediately due and payable to the extent permitted by law upon the
acceleration of the Notes.
13. Trustee Dealings with Company. The Trustee, in its individual or any other capacity, may
make loans to, accept deposits from, and perform services for the Company or its Affiliates, and
may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. No director, officer, employee, incorporator or stockholder
of the Company or of any of the Guarantors as such will have any liability for any of the Companys
or any Guarantors obligations under the Notes, the Indenture, any Note Guarantees, or for any
claim based on, in respect of, or by reason of, these obligations or their creation. Each Holder
by accepting a Note waives and releases these individuals from this liability. The waiver and
release are part of the consideration for issuance of the Notes.
15. Authentication. This Note shall not be valid until authenticated by the manual signature
of the Trustee or an authenticating agent.
A1-8
16. 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 shall have all the rights set forth in the Registration
Rights Agreement dated as of April 18, 2011, between the Company, the Guarantors and the parties
named on the signature pages thereof or, in the case of Additional Notes, Holders of Additional
Notes shall have the rights set forth in one or more registration rights agreements, if any,
between the Company, the Guarantors and the other parties thereto, relating to rights given by the
Company and the Guarantors to the purchasers of Additional Notes (the Registration Rights
Agreement").
17. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes
and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
The Company shall 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:
Stewart Enterprises, Inc.
1333 S. Clearview Parkway
Jefferson, LA 70121
Telecopier No.: (504) 729-1407
Attention: Lewis J. Derbes, Jr., Senior Vice President, Chief Financial Officer and Treasurer
A1-9
Assignment Form
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:___________________________________________________________________________
(Insert assignees legal name)
(Insert assignees soc. sec. or tax I.D. no.)
(Print or type assignees name, address and zip code)
to transfer this Note on the books of the Company. The agent may substitute another to act for
him.
Date:________________________
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Your Signature: |
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(Sign exactly as your name appears on the face of this Note) |
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Signature
Guarantee*: ________________________
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Participant in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee). |
A1-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 4.08 of
the Indenture, check the box below:
o
If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 4.08 of the Indenture, state the amount you elect to have purchased:
$
Date:
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Your Signature:
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(Sign exactly as your name appears on the face of this Note) |
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Tax Identification No.:
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Signature
Guarantee*:
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Participant in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee). |
A1-11
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:
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decrease (or increase) |
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A1-12
EXHIBIT A2
[Face of Note]
CUSIP ___________
STEWART ENTERPRISES, INC.
6.50% Senior Notes due 2019
Issue Date: April 18, 2011
Stewart Enterprises, Inc., a Louisiana Corporation (the Company, which term includes any
successor under the Indenture hereinafter referred to), for value received, promises to pay to CEDE
& CO., or its registered assigns, the principal sum of [ ], DOLLARS ($[ ]) on
April 15, 2019.
Interest Payment Dates: April 15 and October 15, commencing October 15, 2011.
Record Dates: April 1 and October 1.
Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by
its duly authorized officers.
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STEWART ENTERPRISES, INC.
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By: |
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Name: |
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Title: |
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This is one of the 6.50% Senior Notes due 2019 described in the within-mentioned Indenture.
A2-1
Dated:
U.S. Bank National Association, as Trustee
A2-2
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), TO ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS
NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES
GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED
HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE
SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE SECURITIES ACT), OR ANY STATE OR FOREIGN SECURITIES LAWS. NEITHER THIS
NOTE NOR THE GUARANTEES ENDORSED HEREON NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON BY
ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE
WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED
HEREON (OR ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON) (THE RESALE
RESTRICTION TERMINATION DATE) ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER
A2-3
THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT (RULE 144A), TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE)
OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
TO THE COMPANYS AND THE TRUSTEES RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO
CLAUSE (D) PRIOR TO THE END OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT
A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.
A2-4
[Reverse Side of Note]
STEWART ENTERPRISES, INC.
6.50% Senior Notes due 2019
Capitalized terms used herein shall have the meanings assigned to them in this Indenture
referred to below unless otherwise indicated.
1. Interest. The Company promises to pay interest on the principal amount of
this Note at 6.50% per annum from the date hereof until maturity and shall pay the Additional
Interest, if any, payable pursuant to Section 5 of the Registration Rights Agreement referred to
below. The Company shall pay interest and Additional Interest, if any, semi-annually in arrears on
April 15 and October 15 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each an Interest Payment Date). Interest on the Notes shall accrue from
the most recent date to which interest has been paid or, if no interest has been paid, from the
date of original issuance; provided that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to on the face hereof
and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding
Interest Payment Date; provided further that the first Interest Payment Date shall be October 15,
2011. The Company shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate
that is 1% per annum in excess of the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Additional Interest (without regard to any applicable grace periods) from time to time
on demand at the same rate to the extent lawful. Interest shall be computed on the basis of a
360-day year of twelve 30-day months.
2. Method of Payment. The Company shall pay interest on the Notes (except
defaulted interest) and Additional Interest, if any, to the Persons who are registered Holders of
Notes at the close of business on the April 1 or October 1 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 2.13 of the Indenture with respect to defaulted interest. The
Notes shall be payable as to principal, premium and Additional Interest, if any, and interest at
the office or agency of the Company maintained for such purpose in The City of New York maintained
for such purposes, or, at the option of the Company, payment of interest and Additional Interest,
if any, may be made by check mailed to the Holders at their addresses set forth in the register of
Holders, and provided that payment by wire transfer of immediately available funds shall be
required with respect to principal of and interest, premium and Additional Interest, if any, on,
all Global Notes and all other Notes the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent. Such payment shall be in such coin or currency of
the United States of America as at the time of payment is legal tender for payment of public and
private debts.
3. Paying Agent and Registrar. Initially, U.S. Bank National Association, the
Trustee under the Indenture, shall act as Paying Agent and Registrar. The Company may change any
Paying Agent or Registrar without prior notice to any Holder. The Company or any of its
Subsidiaries may act in any such capacity.
A2-5
4. Indenture. The Company issued the Notes under an Indenture dated as of April
18, 2011 (Indenture) among the Company, the Guarantors and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended. The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. To the extent any provision
of this Note conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling. The Indenture pursuant to which this Note is issued
provides that an unlimited aggregate principal amount of Additional Notes may be issued thereunder.
5. Optional Redemption. (a) Except as set forth in paragraph 5(b) below, the Company
shall not have the option to redeem the Notes prior to April 15, 2014. On or after April 15, 2014,
the Company shall have the option to redeem the Notes, in whole or in part, upon not less than 30
nor more than 60 days prior notice, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest and Additional Interest, if any,
thereon to the applicable redemption date, subject to the rights of the Holders of the Notes on the
relevant record date to receive interest on the relevant interest payment date, if redeemed during
the twelve-month period beginning on April 15 of the years indicated below:
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Year |
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Percentage |
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2014 |
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104.875 |
% |
2015 |
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103.250 |
% |
2016 |
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101.625 |
% |
2017 and thereafter |
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100.000 |
% |
(b) At any time prior to April 15, 2014, the Company may redeem all or a part of the
Notes, upon not less than 30 nor more than 60 days notice, at a redemption price equal to the sum
of (i) 100% of the principal amount thereof, plus (ii) the Applicable Premium as of the date of
redemption, plus (iii) accrued and unpaid interest and Additional Interest, if any, thereon, to the
applicable redemption date, subject to the rights of the Holders of the Notes on the relevant
record date to receive interest on the relevant interest payment date.
6. Mandatory Redemption. The Company shall not be required to make mandatory redemption
payments or sinking fund payments with respect to the Notes.
7. Selection and Notice of Redemption. If less than all of the Notes are to be redeemed
at any time, the Trustee will select Notes for redemption as follows: (i) if the Notes are listed,
in compliance with the requirements of the principal national securities exchange on which the
Notes are listed, or (ii) if the Notes are not so listed, on a pro rata basis, by lot or by any
method as the Trustee deems fair and appropriate. No Notes of $2,000 or less may be redeemed in
part. Notices of redemption shall 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.
Notices of redemption may not be conditional. If any Note is to be redeemed in part only, the
notice of redemption that relates to that Note shall state the portion of the
A2-6
principal amount thereof to be redeemed. A new Note in principal amount equal to the
unredeemed portion of the original Note will be issued in the name of the Holder thereof upon
cancellation of the original Note. Notes called for redemption become due on the date fixed for
redemption. On and after the redemption date, interest and Additional Interest, if any, cease to
accrue on Notes or portions of them called for redemption.
8. Repurchase at Option of Holder. Upon the occurrence of a Change of Control, each
Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to
minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof) of such
Holders Notes pursuant to the offer described below (the Change of Control Offer") at an offer
price in cash equal to 101% of the aggregate principal amount repurchased plus accrued and unpaid
interest and Additional Interest thereon, if any, to the date of purchase (the Change of Control
Payment"). Within 30 days following any Change of Control, the Company shall mail a notice to each
Holder describing the transaction or transactions that constitute the Change of Control and
offering to repurchase Notes on the date specified in such notice which shall be no earlier than 30
days and no later than 60 days from the date such notice is mailed, pursuant to the procedures
required by the Indenture and described in such notice.
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 thereof. The transfer of Notes
may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer
documents and the Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company is not required to transfer or exchange any Note selected
for redemption. Also, the Company is not required to transfer or exchange any Note for a period of
15 days before a selection of Notes to be redeemed.
10. Persons Deemed Owners. The registered Holder of a Note will be treated as its owner
for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture or the
Notes may be amended or supplemented with the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding and 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), and any existing Default or compliance with any provision
of the Indenture or the Notes may be waived with the consent of the Holders of a majority in
principal of the Notes then outstanding and 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). Without the consent of any Holder of Notes, the Indenture or
the Notes may be amended or supplemented to cure any ambiguity, defect or inconsistency, to provide
for uncertificated Notes in addition to or in place of certificated Notes, to provide for the
assumption of the Companys or any Guarantors obligations to Holders of the Notes in the case of a
merger or consolidation or sale of all or substantially all of the assets of the Company or any
Guarantor, to make any change that would provide any additional rights or benefits to the Holders
of the Notes or that does not adversely affect the legal rights under the Indenture of any such
Holder to comply with the provisions described in Section 4.11 of the Indenture, to evidence and
provide for the acceptance of
A2-7
appointment by a successor Trustee, or to provide for the issuance of Additional Notes in
accordance with the Indenture.
12. Defaults and Remedies. In the case of an Event of Default, as defined in the
Indenture arising from certain events of bankruptcy or insolvency with respect to the Company or
any of its Restricted Subsidiaries, all outstanding Notes will become due and payable immediately
without further action or notice. If any other Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately by notice in writing to the Company
specifying the Event of Default. Holders of the Notes may not enforce the Indenture or the Notes
except as provided in the Indenture. Subject to certain limitations, Holders of a majority in
principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders of the Notes notice of any continuing Default or
Event of Default (except a Default or Event of Default relating to the payment of principal or
interest or Additional Interest, if any) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the Notes then outstanding by
notice to the Trustee may, on behalf of the Holders of all of the Notes, waive any existing Default
or Event of Default and its consequences under the Indenture except a continuing Default or Event
of Default in the payment of interest or Additional Interest, if any, on, or the principal of, the
Notes.
In the case of any Event of Default occurring by reason of any willful action or inaction
taken or not taken by the Company or on their behalf with the intention of avoiding payment of the
premium that the Company would have had to pay if the Company then had elected to redeem the Notes
pursuant to the optional redemption provisions of the Indenture, an equivalent premium shall also
become and be immediately due and payable to the extent permitted by law upon the acceleration of
the Notes. If an Event of Default occurs during any time that the Notes are outstanding, by reason
of any willful action (or inaction) taken (or not taken) by the Company or on its behalf with the
intention of avoiding the prohibition on redemption of the Notes, then the premium specified in the
Indenture shall also become immediately due and payable to the extent permitted by law upon the
acceleration of the Notes.
13. Trustee Dealings with Company. The Trustee, in its individual or any other capacity,
may make loans to, accept deposits from, and perform services for the Company or its Affiliates,
and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. No director, officer, employee, incorporator or
stockholder of the Company or of any of the Guarantors as such will have any liability for any of
the Companys or any Guarantors obligations under the Notes, the Indenture, any Note Guarantees,
or for any claim based on, in respect of, or by reason of, these obligations or their creation.
Each Holder by accepting a Note waives and releases these individuals from this liability. The
waiver and release are part of the consideration for issuance of the Notes.
15. Authentication. This Note shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.
A2-8
16. 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 shall have all the rights set forth in the
Registration Rights Agreement dated as of April 18, 2011, between the Company, the Guarantors and
the parties named on the signature pages thereof or, in the case of Additional Notes, Holders of
Additional Notes shall have the rights set forth in one or more registration rights agreements, if
any, between the Company, the Guarantors and the other parties thereto, relating to rights given by
the Company and the Guarantors to the purchasers of Additional Notes (the Registration Rights
Agreement).
17. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes
and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
The Company shall 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:
Stewart Enterprises, Inc.
1333 S. Clearview Parkway
Jefferson, LA 70121
Telecopier No.: (504) 729-1407
Attention: Lewis J. Derbes, Jr., Senior Vice President, Chief Financial Officer and
Treasurer
A2-9
Assignment Form
To assign this Note, fill in the form below:
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(I) or (we) assign and transfer this Note to: |
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(Insert assignees legal name) |
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(Insert assignees soc. sec. or tax I.D. no.) |
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(Print or type assignees name, address and zip code) |
to transfer this Note on the books of the Company. The agent may substitute another to act for
him.
Date:
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Your Signature:
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(Sign exactly as your name appears on the face of this Note) |
Signature Guarantee*:
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* |
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Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee). |
A2-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 4.08 of
the Indenture, check the box below:
o
If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 4.08 of the Indenture, state the amount you elect to have purchased:
$
Date:
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Your Signature:
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(Sign exactly as your name appears on the face of this Note)
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Tax Identification No.:
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Signature
Guarantee*:
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* |
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Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee). |
A2-11
SCHEDULE OF EXCHANGES OF REGULATION S TEMPORARY GLOBAL NOTE
The following exchanges of a part of this Regulation S Temporary Global Note for an interest
in another Global Note or of other Restricted Global Notes for an interest in this Regulation S
Temporary Global Note, have been made:
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Principal Amount at |
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Amount of Decrease in |
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Amount of Increase in |
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Maturity |
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Signature of |
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Principal Amount at |
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Principal Amount at |
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of this Global Note |
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Authorized Officer |
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Maturity |
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Maturity |
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Following such |
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of Trustee or |
Date of Exchange |
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of this Global Note |
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of this Global Note |
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decrease (or increase) |
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Note Custodian |
A2-12
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Stewart Enterprises, Inc.
1333 S. Clearview Parkway
Jefferson, LA 70121
Telecopier No.: (504) 729-1407
Attention: Lewis J. Derbes, Jr., Senior Vice President, Chief Financial Officer and Treasurer
U.S. Bank National Association
60 Livingston Avenue
EP-MN-WS3C
St. Paul, MN 55107
Telecopier No.: (651) 495-8097
Attention: Corporate Trust Services
Re: 6.50% Senior Notes due 2019
Reference is hereby made to the Indenture, dated as of April 18, 2011 (the Indenture), among
Stewart Enterprises, Inc., a Louisiana Corporation (the Company), the Guarantors, and U.S. Bank
National Association, as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
___________________ (the Transferor) owns and proposes to transfer the Note[s] or interest
in such Note[s] specified in Annex A hereto, in the principal amount at maturity of $___________ in
such Note[s] or interests (the Transfer), to ___________________________ (the Transferee), as
further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby
certifies that:
[CHECK ALL THAT APPLY]
1. o Check if Transferee will take delivery of a beneficial interest in the 144A
Global Note or a Definitive Note Pursuant to Rule 144A. The Transfer is being effected
pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933, as
amended (the Securities Act), and, accordingly, the Transferor hereby further certifies that the
beneficial interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or Definitive Note for its
own account, or for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a qualified institutional buyer
within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such
Transfer is in compliance with any applicable blue sky securities laws of any state of the United
States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture,
the transferred beneficial interest or Definitive Note will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the
Definitive Note and in the Indenture and the Securities Act.
B-1
2. o Check if Transferee will take delivery of a beneficial interest in the
[Regulation S Temporary Global Note, the Regulation S Permanent Global Note] or a Definitive Note
pursuant to Regulation S. The Transfer is being effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United States and either (x)
at the time the buy order was originated, the Transferee was outside the United States or such
Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee
was outside the United States or (y) the transaction was executed in, on or through the facilities
of a designated offshore securities market and neither such Transferor nor any Person acting on its
behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no
directed selling efforts have been made in contravention of the requirements of Rule 903(a) or Rule
904(a) 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
Permanent Global Note, the Regulation S Temporary Global Note] and/or the Definitive Note and in
the Indenture and the Securities Act.
3. o Check and complete if Transferee will take delivery of a beneficial
interest in a Restricted Global Note or 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) o such Transfer is being effected pursuant to and in accordance with Rule
144 under the Securities Act and the requirements of the exemption claimed, which
certification is supported by an Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this certification);
or
(b) o such Transfer is being effected to the Company or a subsidiary thereof;
or
(c) o 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. o Check if Transferee will take delivery of a beneficial interest in
an Unrestricted Global Note or of an Unrestricted Definitive Note.
B-2
(a) o 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) o Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in
compliance with the transfer restrictions contained in the Indenture and any applicable blue sky
securities laws of any state of the United States and (ii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to maintain compliance
with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject
to the restrictions on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.
(c) o Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being
effected pursuant to and in compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any State of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.
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[Insert Name of Transferor]
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By: |
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Name: |
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Title: |
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Dated:
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. |
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The Transferor owns and proposes to transfer the following: |
[CHECK ONE OF (A) OR (B)]
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o a beneficial interest in the: |
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(i) |
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144A Global Note (CUSIP ); or |
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(ii) |
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Regulation S Global Note (CUSIP ); |
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o a Restricted Definitive Note. |
2. |
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After the Transfer the Transferee will hold: |
[CHECK ONE]
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(A) |
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o a beneficial interest in the: |
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(i) |
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144A Global Note (CUSIP ); or |
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(ii) |
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Regulation S Global Note (CUSIP ); |
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(iii) |
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Unrestricted Global Note (CUSIP ); or |
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(B) |
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o a Restricted Definitive Note; or |
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o an Unrestricted Definitive Note, |
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in accordance with the terms of the Indenture. |
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Stewart Enterprises, Inc.
1333 S. Clearview Parkway
Jefferson, LA 70121
Telecopier No.: (504) 729-1761
Attention: Chief Financial Officer
U.S. Bank National Association
60 Livingston Avenue
EP-MN-WS3C
St. Paul, MN 55107
Telecopier No.: (504) 729-1407
Attention: Corporate Trust Services
Re: 6.50% Senior Notes due 2019
Reference is hereby made to the Indenture, dated as of April 18, 2011 (the Indenture), among
Stewart Enterprises, Inc., a Louisiana corporation (the Company), the Guarantors and U.S. Bank
National Association, as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
__________________________ (the Owner) owns and proposes to exchange the Note[s] or interest
in such Note[s] specified herein, in the principal amount at maturity 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 at maturity, 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 United States Securities Act of 1933, as amended (the
Securities Act), (iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act and (iv)
the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
C-1
(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 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 at
maturity, 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
C-2
Definitive Note
for a beneficial interest in the [CHECK ONE] o 144A Global Note, o Regulation S
Global Note, o IAI Global Note with an equal principal amount at maturity, 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 Company.
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[Insert Name of Transferor]
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Dated:
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EXHIBIT D
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor Person under the
Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture dated as of April 18, 2011 (the
Indenture) among Stewart Enterprises, Inc., the other Guarantors (as defined in the Indenture and
U.S. Bank National Association, as trustee (the Trustee), (a) the due and punctual payment of the
principal of, premium, if any, and interest on the Notes (as defined in the Indenture), whether at
maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on
overdue principal and premium, and, to the extent permitted by law, interest, and the due and
punctual performance of all other obligations of the Company to the Holders or the Trustee all in
accordance with the terms of the Indenture and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that the same 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. The obligations of the Guarantors to the Holders of Notes
and to the Trustee pursuant to the Note Guarantee and the Indenture are expressly set forth in
Article Ten of the Indenture and reference is hereby made to the Indenture for the precise terms of
the Note Guarantee. Each Holder of a Note, by accepting the same, agrees to and shall be bound by
such provisions.
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[Name of Guarantor]
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D-1
EXHIBIT E
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental Indenture (this Supplemental Indenture), dated as of _____________, among
__________________ (the Guaranteeing Subsidiary), a subsidiary of Stewart Enterprises, Inc. (or
its permitted successor), a Louisiana corporation (the Company), the Company, the other
Guarantors (as defined in the Indenture referred to herein) and U.S. Bank National Association, as
trustee under the Indenture referred to below (the Trustee).
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the
Indenture), dated as of April 18, 2011 providing for the issuance of an aggregate principal
amount of 6.50% Senior Notes due 2019 (the Notes);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Companys obligations under the
Notes and the Indenture on the terms and conditions set forth herein (the Note Guarantee); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the
Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes
as follows:
1. Capitalized Terms. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees as follows:
(a) Along with all other Guarantors, to jointly and severally Guarantee to each Holder of a
Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of the Indenture, the Notes or the obligations of
the Company hereunder or thereunder, that:
(i) the principal of and interest on the Notes will be promptly paid in full when due,
whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, if lawful, and all other obligations of the Company
to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and
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(ii) in case of any extension of time of payment or renewal of any Notes or any of such
other obligations, the same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever
reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. This
Note Guarantee is a guarantee of payment and not of collection.
(b) The obligations hereunder shall be unconditional, irrespective of the validity, regularity
or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to enforce the same or any other
circumstance that might otherwise constitute a legal or equitable discharge or defense of a
guarantor.
(c) Subject to Section 6.06 of the Indenture, the following is hereby waived: diligence,
presentment, demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever.
(d) The Note Guarantee shall not be discharged except by complete performance of the
obligations contained in the Notes and the Indenture.
(e) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors, or any Custodian, Trustee, liquidator or other similar official acting in
relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such
Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any right of subrogation in relation
to the Holders in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby.
(g) As between the Guarantors, on the one hand, and the Holders and the Trustee, on the other
hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in
Article Six of the Indenture for the purposes of this Note Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as
provided in Article Six of the Indenture, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee.
(h) Pursuant to Section 10.02 of the Indenture, the Trustee, the Holders and the Guarantors
irrevocably agree that the obligations of such Guarantor under its Note Guarantee shall be limited
to the extent necessary so that they shall not constitute a fraudulent transfer or conveyance.
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3. Execution and Delivery. Each Guaranteeing Subsidiary agrees that the Note
Guarantees shall remain in full force and effect notwithstanding any failure to endorse on each
Note a notation of such Note Guarantee.
4. Releases.
(a) Any Guarantor will be released and relieved of any obligations under its Note Guarantee,
(i) in connection with any sale or other disposition of all of the Capital Stock of a Guarantor to
a Person that is not (either before or after giving effect to such transaction) an Affiliate of the
Company; or (ii) solely in the case of a Note Guarantee created pursuant Section 4.11(b) of the
Indenture, upon the release or discharge of the Guarantee which resulted in the creation of such
Note Guarantee, except a discharge or release by or as a result of payment under such Guarantee.
Upon delivery by the Company to the Trustee of an Officers Certificate and an Opinion of Counsel
to the effect that such sale or other disposition was made by the Company in accordance with the
provisions of this Indenture, the Trustee shall execute any documents reasonably required in order
to evidence the release of any Guarantor from its obligations under its Note Guarantee.
(b) Any Guarantor not released from its obligations under its Note Guarantee shall remain
liable for the full amount of principal of and interest on the Notes and for the other obligations
of any Guarantor under the Indenture as provided in Article Ten of the Indenture.
5. No Recourse Against Others. No past, present or future director, officer,
employee, incorporator, stockholder or agent of the Guaranteeing Subsidiary, as such, shall have
any liability for any obligations of the Company or any Guaranteeing Subsidiary under the Notes,
any Note Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by
accepting a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws.
6. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
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.
8. Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.
9. Trustee. The Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary
and the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed and attested, all as of the date first above written.
Dated: _______________, ____
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[Guaranteeing Subsidiary]
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STEWART ENTERPRISES, INC.
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U.S. BANK NATIONAL ASSOCIATION, as Trustee
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