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EXECUTION
COPY
CENVEO
CORPORATION,
as
Issuer,
the
GUARANTORS named herein
and
U.S.
BANK NATIONAL ASSOCIATION
as
Trustee
________________________
INDENTURE
________________________
Dated
as of June 13, 2008
10.5%
Senior Notes due 2016
CROSS-REFERENCE TABLE
i
_____________________
N.A.
means not applicable.
This
Cross-Reference Table is not part of the
Indenture.
ii
Page
iii
Page
iv
Page
v
Page
vi
Page
INDENTURE
dated as of June 13, 2008 among Cenveo Corporation, a Delaware
corporation (the “Company”), the Guarantors (as
defined herein) listed on Schedule A hereto, and U.S. Bank
National Association, a national banking association, as
trustee (the “Trustee”).
The
Company, the Guarantors, and the Trustee agree as follows for
the benefit of each other and for the equal and ratable
benefit of the Holders of the 10.5% Senior Notes due 2016 (the
“Notes”).
ARTICLE
1
“
144A
Global Note ” means the Global Note in the form
of Exhibit A-1 hereto bearing the Global Note Legend and the
Private Placement Legend and deposited with and registered in
the name of the Depositary or its nominee that will be issued
in a denomination equal to the outstanding principal amount of
the Notes sold in reliance on Rule 144A.
“
Acquired
Debt ” means, with respect to any specified
Person: (i) Indebtedness of any other Person
existing at the time such other Person is merged with or into
or became a Subsidiary of such specified Person, whether or
not such Indebtedness is incurred in connection with, or in
contemplation of, such other Person merging with or into, or
becoming a Subsidiary of, such specified Person; and (ii)
Indebtedness secured by a Lien encumbering any asset acquired
by such specified Person.
“
Additional
Notes ” means, subject to the Company’s
compliance with the provisions of Section 4.09, such
additional Notes as the Company may issue under this Indenture
on the same terms and conditions and with the same interest
rate, maturity and CUSIP numbers as the Notes being issued on
the Conversion Date.
“
Affiliate
” of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified
Person. For purposes of this definition,
“control,” as used with respect to any Person,
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
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 that apply to such
transfer or exchange.
“
Asset
Sale ” means (i) the sale, lease, conveyance or
other disposition of any assets or rights, including sales and
leasebacks, but excluding sales of inventory and equipment in
the ordinary course of business consistent with past
practices; provided that the
sale, lease, conveyance or other disposition of all or
substantially all of the assets of the Company and its
Restricted Subsidiaries taken as a whole will be governed by
the provisions of Section 4.06, and/or the provisions of
Article 5 hereof and not by the provisions of Section 4.07;
and (ii) the issuance of Equity Interests by any of the
Company’s Restricted Subsidiaries or the sale of Equity
Interests in any of its
Subsidiaries. Notwithstanding the preceding, the
following items shall not be deemed to be Asset
Sales: (i) any single transaction or series of
related transactions that: (a) involves assets having a
fair market value of less than $20 million; or (b) results in
net proceeds to the Company and its Restricted Subsidiaries of
less than $20 million; (ii) a transfer of assets between or
among the Company and its Wholly Owned Restricted
Subsidiaries; (iii) an issuance of Equity Interests by a
Wholly Owned Restricted Subsidiary to the Company or to
another Wholly Owned Restricted Subsidiary; and (iv) a
Restricted Payment that is permitted under Section 4.08
hereof.
“
Attributable
Debt ” in respect of a sale and leaseback
transaction means, at the time of determination, the present
value of the obligation of the lessee for net rental payments
during the remaining term of the lease included in such sale
and leaseback transaction including any period for which such
lease has been extended or may, at the option of the lessor,
be extended. Such present value shall be calculated
using a discount rate equal to the rate of interest implicit
in such transaction, determined in accordance with
GAAP.
“
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 l3d-5 under the Exchange Act, except that
in calculating the beneficial ownership of any particular
“person” (as such 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, whether
such right is currently exercisable or is exercisable only
upon the occurrence of a subsequent condition.
“
Board of
Directors ” means the Board of Directors of the
Company, or the Parent Company, as applicable, or any
authorized committee of the Board of Directors.
“
Business
Day ” means any day other than a Legal
Holiday.
“
Capital Lease
Obligation ” means, at the time any determination
thereof is to be made, the amount of the liability in respect
of a capital lease that would at such 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
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.
“
Cash
Equivalents ” means (i) United States dollars;
(ii) (a) pounds sterling, euros or any national currency of
any participating member state of the European Economic and
Monetary Union; or (b) such local currencies held by the
Company or any Restricted Subsidiary from time to time in the
ordinary course of business; (iii) securities issued or
directly and fully and unconditionally guaranteed or insured
by the U.S. government or any agency or instrumentality
thereof the securities of which are unconditionally guaranteed
as a full faith and credit obligation of such government with
maturities of not more than twelve months from the date of
acquisition; (iv) certificates of deposit, time deposits and
eurodollar time deposits with maturities of one year or less
from the date of acquisition, bankers’ acceptances with
maturities not exceeding one year and overnight bank deposits,
in each case with any domestic or foreign commercial bank
having capital and surplus of not less than $500 million in
the case of U.S. banks and $100 million (or the U.S. dollar
equivalent as of the date of determination) in the case of
non-U.S. banks; (v) repurchase obligations for underlying
securities of the types described in clauses (iii) and (iv)
entered into with any financial institution meeting the
qualifications specified in clause (iv) above; (vi) money
market instruments, commercial paper or other short-term
obligations rated at least A-2 or the equivalent thereof by
Standard & Poor’s Ratings Services or at least P-2
or the equivalent thereof by Moody’s Investor Services,
Inc. (or if at such time neither is issuing ratings, then a
comparable rating of another nationally recognized rating
agency); (vii) investments in money market funds subject to
the risk limiting conditions of Rule 2a-7 or any successor
rule of the SEC under the Investment Company Act of 1940, as
amended; and (viii) investment funds investing 90% of their
assets in securities of the types described in clauses (i)
through (vii) above.
“
Change of
Control ” means the occurrence of any of the
following: (i) the 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 assets of the Company and its
Subsidiaries taken as a whole to any “person” (as
such term is used in Section 13(d)(3) of the Exchange Act)
other than a Principal or a Related Party of a Principal; (ii)
the adoption of a plan relating to the liquidation or
dissolution of the Company; (iii) the consummation of any
transaction (including, without limitation, any merger or
consolidation) the result of which is that any
“person” (as defined above), other than the
Principals and their Related Parties, becomes the Beneficial
Owner, directly or indirectly, of more than 35% of the Voting
Stock of the Company or the Parent Company, measured by voting
power rather than number of shares; (iv) the first day on
which a majority of the members of the Board of Directors of
the Company or the Parent Company are not Continuing
Directors; or (v) the Company or the Parent Company
consolidates with, or merges with or into, any Person, or any
Person consolidates with, or merges with or into, the Company
or the Parent Company, in any such event pursuant to a
transaction in which any of the outstanding Voting Stock of
the Company or the Parent Company is converted into or
exchanged for cash, securities or other property, other than
any such transaction where the Voting Stock of the Company or
the Parent Company outstanding immediately prior to such
transaction is converted into or exchanged for Voting 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. For the avoidance of doubt,
the
sales of the assets or stocks of Subsidiaries that the Company
is currently holding for sale as part of its strategic plan
will not constitute a Change of Control.
“
Company
” means Cenveo Corporation, a Delaware corporation, and
any and all successors thereto.
“
Consolidated
Cash Flow ” means, with respect to any Person for
any period, the Consolidated Net Income of such Person for
such period plus: (i) an amount equal to any
extraordinary loss plus any net loss realized in connection
with an Asset Sale, to the extent such losses were deducted in
computing such Consolidated Net Income; plus (ii) provision
for taxes based on income or profits of such Person and its
Subsidiaries for such period, to the extent that such
provision for taxes was deducted in computing such
Consolidated Net Income; plus (iii) consolidated interest
expense of such Person and its Subsidiaries for such period,
whether paid or accrued and whether or not capitalized
(including, without limitation, amortization of debt issuance
costs and original issue discount, non-cash interest payments,
the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital
Lease Obligations, imputed interest with respect to
Attributable Debt, commissions, discounts and other fees and
charges incurred in respect of letter of credit or
bankers’ acceptance financings, and net payments, if
any, pursuant to Hedging Obligations), to the extent that any
such expense was deducted in computing such Consolidated Net
Income; plus (iv) depreciation, amortization (including
amortization of goodwill and other intangibles) and other
non-cash expenses, including stock-based compensation
provision and loss on early extinguishment of debt, of such
Person and its Subsidiaries for such period to the extent that
such depreciation, amortization and other non-cash expenses
were deducted in computing such Consolidated Net Income; minus
(v) non-cash items increasing such Consolidated Net Income for
such period, other than items that were accrued in the
ordinary course of business, in each case on a consolidated
basis.
Notwithstanding
the preceding, the provision for taxes based on the income or
profits of, and the depreciation and amortization and other
non-cash charges of, a Subsidiary of the Company shall be
added to Consolidated Net Income to compute Consolidated Cash
Flow of the Company only to the extent that a corresponding
amount would be permitted at the date of determination to be
dividended to the Company by such Subsidiary without prior
approval (that has not been obtained), pursuant to the terms
of its charter and all agreements, instruments, judgments,
decrees, orders, statutes, rules and governmental regulations
applicable to that Subsidiary or its
stockholders.
“
Consolidated Net
Income ” means, with respect to any specified
Person for any period, the aggregate of the Net Income of such
Person and its Restricted Subsidiaries for such period, on a
consolidated basis, provided
that: (i) the Net Income (but not loss) of any
Person that is not a Restricted Subsidiary or that is
accounted for by the equity method of accounting shall be
included only to the extent of the amount of dividends or
distributions paid in cash to the specified Person or a Wholly
Owned Subsidiary thereof; (ii) the Net Income of any
Non-Guarantor Restricted Subsidiary shall be excluded to the
extent that the declaration or payment of dividends or similar
distributions by that Non-Guarantor Restricted Subsidiary of
that Net Income is not at the date of determination permitted
without any prior governmental approval (that has not been
obtained) or, directly or indirectly, by operation of the
terms of its charter or
any
agreement, instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to that Non-Guarantor
Restricted Subsidiary or its stockholders; (iii) the Net
Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such
acquisition shall be excluded; (iv) the Net Income (but not
loss) of any Unrestricted Subsidiary shall be excluded,
whether or not distributed to the specified Person or one of
its Subsidiaries; and (v) any writedowns with respect to, or
losses on dispositions of, Subsidiaries and assets and all
restructuring charges incurred by the Company, the Parent
Company and the Subsidiaries, shall be excluded; (vi)
non-recurring fees, expenses or charges (including integration
charges and, without limitation, the write-off of deferred
financing fees) incurred in connection with the Transactions,
or any merger, acquisition or consolidation shall be excluded;
and (vii) the cumulative effect of or a change in accounting
principles shall be excluded.
“
Consolidated
Secured Debt Ratio ” means, as of the date of
determination, the ratio of (a) the Consolidated Total
Indebtedness of the Company and its Restricted Subsidiaries on
such date that is secured by Liens to (b) Consolidated Cash
Flow of the Company and its Restricted Subsidiaries for the
most recently ended four fiscal quarters ending immediately
prior to such date for which internal financial statements are
available. In the event that the specified Person or any of
its Restricted Subsidiaries incurs, assumes, Guarantees or
redeems any Indebtedness or issues or redeems preferred stock
subsequent to the commencement of the period for which the
Consolidated Secured Debt Ratio is being calculated but prior
to the date on which the event for which the calculation of
the Consolidated Secured Debt Ratio is made (the
“Consolidated Secured Debt Ratio Calculation
Date”), then the Consolidated Secured Debt Ratio shall
be calculated giving pro forma effect
to such incurrence, assumption, Guarantee or redemption of
Indebtedness, or such issuance or redemption of preferred
stock, as if the same had occurred at the beginning of the
applicable four-quarter reference period; provided ,
however ,
borrowings in the ordinary course of business under any
revolving credit agreement shall not be given pro forma effect
and shall be included in the calculation of the Consolidated
Secured Debt Ratio only to the extent such borrowings were
actually outstanding on such date of
determination.
In
addition, for purposes of calculating the Consolidated Secured
Debt Ratio:
(i) acquisitions
that have been made by the specified Person or any of its
Restricted Subsidiaries, including through mergers or
consolidations and including any related financing
transactions, during the four-quarter reference period or
subsequent to such reference period and on or prior to the
Consolidated Secured Debt Ratio Calculation Date shall be
deemed to have occurred on the first day of the four-quarter
reference period and Consolidated Cash Flow for such reference
period shall be calculated without giving effect to clause
(iii) of the proviso set forth in the definition of
Consolidated Net Income;
(ii) if
since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with
or into the Company or any Restricted Subsidiary since the
beginning of such period) shall have made any Investment,
acquisition, disposition, merger or consolidation that would
have required adjustment pursuant to this definition, then the
Consolidated Secured Debt Ratio shall be calculated giving
pro
forma effect thereto for such period as if such
Investment, acquisition, disposition, merger or consolidation
had occurred at the beginning of the applicable four-quarter
period;
(iii) whenever
pro
forma effect is to be given to an Investment,
acquisition, disposition, merger or consolidation and the
amount of income or earnings relating thereto, the pro forma
calculations shall be determined in good faith by a
responsible financial or accounting officer of the Company and
shall comply with the requirements of Rule 11-02 of Regulation
S-X promulgated by the SEC, except that such pro forma
calculations may include operating expense reductions for such
period resulting from such transaction which is being given
pro forma effect that have been realized or (A) for which the
steps necessary for realization have been taken (or are taken
concurrently with such transaction) or (B) with respect to any
transactions, for which the steps necessary for realization
are reasonably expected to be taken within the 12-month period
following such transaction and, in each case, including, but
not limited to, (a) reduction in personnel expenses, (b)
reduction of costs related to administrative functions (c)
reduction of costs related to leased or owned properties and
(d) reductions from the consolidation of operations and
streamlining of corporate overhead; and
(iv) the
Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and
operations or businesses disposed of prior to the Consolidated
Secured Debt Ratio Calculation Date, including, but not
limited to, divested operations EBITDA, shall be
excluded.
“
Consolidated
Total Indebtedness ” means, as at any date of
determination, an amount equal to the sum of (i) the aggregate
amount of all outstanding Indebtedness of the Company and its
Restricted Subsidiaries on a consolidated basis consisting of
Indebtedness for borrowed money, Obligations in respect of
Capital Lease Obligations and debt obligations evidenced by
promissory notes and similar instruments and (ii) the
aggregate amount of all outstanding Disqualified Stock of the
Company on a consolidated basis, with the amount of such
Disqualified Stock equal to the greater of its voluntary or
involuntary liquidation preferences and maximum fixed
repurchase prices, in each case determined on a consolidated
basis in accordance with GAAP. For purposes hereof,
the “maximum fixed repurchase price” of any
Disqualified Stock that does not have a fixed repurchase price
shall be calculated in accordance with the terms of such
Disqualified Stock as if such Disqualified Stock were
purchased on any date on which Consolidated Total Indebtedness
shall be required to be determined pursuant to the Indenture,
and if such price is based upon, or measured by, the fair
market value of such Disqualified Stock, such fair market
value shall be determined reasonably and in good faith by the
Company. Any amount of Indebtedness in a currency
other than U.S. dollars will be converted to U.S. dollars
based on the average exchange rate for such currency for the
most recent twelve month period immediately prior to the date
of determination determined in a manner consistent with that
used in calculating Consolidated Cash Flow for the applicable
period.
“
Continuing
Directors ” means, as of any date of
determination, any member of the Board of Directors of the
Company or the Parent Company who: (i) was a member
of such Board of Directors on the Conversion Date; 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 the Board of Directors of the Parent
Company at the time of such nomination or
election.
“
Conversion
Date ” means June 13,2008, the date of the
Company’s conversion of the Loans into the Notes
pursuant to the Loan Agreement.
“
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, with respect to the Company
or any Restricted Subsidiary, one or more debt facilities or
commercial paper facilities, in each case with banks or other
institutional lenders providing for revolving credit loans,
term loans, receivables financing (including through the sale
of receivables to such lenders or to special purpose entities
formed to borrow from such lenders against such receivables)
or other asset securitizations 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.
“
Default
” means any event that is, or with the passage of time
or the giving of notice or both would be, an Event of
Default.
“
Definitive
Note ” means a certificated Note registered in
the name of the Holder thereof and issued in accordance with
Section 2.06 hereof, in the form of Exhibit A-1 hereto except
that such Note shall not bear the Global Note Legend and shall
not have the “Schedule of Exchanges of Interests in the
Global Note” attached thereto.
“
Depositary
” means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in
Section 2.03 hereof as the Depositary with respect to the
Notes, and any and all successors thereto appointed as
depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
“
Designated
Noncash Consideration ” means the fair market
value of noncash consideration received by the Company or one
of its Restricted Subsidiaries in connection with an Asset
Sale that is so designated as Designated Noncash Consideration
pursuant to an Officers’ Certificate setting forth the
basis of such valuation, less the amount of cash or Cash
Equivalents received in connection with a subsequent sale of
such Designated Noncash Consideration.
“
Disqualified
Stock ” means any Capital Stock that, by its
terms (or by the terms of any security into which it is
convertible, or for which it is exchangeable, in each case at
the option of the holder of the Capital Stock), or upon the
happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder of the Capital Stock,
in whole or in part, on or prior to the date that is 91 days
after the date on which the Notes
mature. Notwithstanding the preceding sentence, any
Capital Stock that would constitute Disqualified Stock solely
because the holders of the Capital Stock have the right to
require the Company to repurchase such Capital Stock upon the
occurrence of a change of control or an asset sale will not
constitute Disqualified Stock if the terms of such Capital
Stock provide that the Company may not repurchase or redeem
any such Capital Stock pursuant to such provisions unless such
repurchase or redemption complies with Section 4.08
hereof.
“
Equity
Interests ” means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but
excluding any debt security that is convertible into, or
exchangeable for, Capital Stock).
“
Equity
Offering ” means any private or underwritten
public offering of common stock of the Company or the Parent
Company in which the gross proceeds to the Company or the
Parent Company, as applicable, are at least $50 million and,
in the case of an offering by the Parent Company, the net
proceeds are contributed to the Company.
“
Exchange
Act ” means the Securities Exchange Act of 1934,
as amended.
“
Existing
Indebtedness ” means Indebtedness of the Company
and its Restricted Subsidiaries in existence on the date of
this Indenture.
“
Fixed
Charges ” means, with respect to any Person for
any period, the sum, without duplication, of: (i)
the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or
accrued, including, without limitation, amortization of debt
issuance costs and original issue discount, non-cash interest
payments, the interest component of any deferred payment
obligations, the interest component of all payments associated
with Capital Lease Obligations, imputed interest with respect
to Attributable Debt, commissions, discounts, and other fees
and charges incurred in respect of letter of credit or
bankers’ acceptance financings, and net payments, if
any, pursuant to Hedging Obligations; plus (ii) the
consolidated interest expense of such Person and its
Restricted Subsidiaries that was capitalized during such
period; plus (iii) any interest expense on Indebtedness of
another Person that is guaranteed by such Person or one of its
Restricted Subsidiaries or secured by a Lien on assets of such
Person or one of its Restricted Subsidiaries, whether or not
such Guarantee or Lien is called upon; plus (iv) cash dividend
payments on any series of preferred stock or Disqualified
Stock of such Person or any of its Restricted
Subsidiaries.
“
Fixed Charge
Coverage Ratio ” means, with respect to any
specified Person for any period, the ratio of the Consolidated
Cash Flow of such Person and its Restricted Subsidiaries for
such period to the Fixed Charges of such Person for such
period. In the event that the specified Person or
any of its Restricted Subsidiaries incurs, assumes,
Guarantees, repays or redeems any Indebtedness or issues or
redeems preferred stock subsequent to the commencement of the
period for which the Fixed Charge Coverage Ratio is being
calculated but prior to the date on which the event for which
the calculation of the Fixed Charge Coverage Ratio is made
(the “Fixed Charge Coverage Ratio Calculation
Date”), then the Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect
to such incurrence, assumption, Guarantee, repayment or
redemption of Indebtedness, or such issuance or redemption of
preferred stock, as if the same had occurred at the beginning
of the applicable four-quarter reference period; provided ,
however ,
borrowings in the ordinary course of business under any
revolving credit agreement shall not be given pro forma effect
and shall be included in the calculation of the Fixed Charge
Coverage Ratio only to the extent such borrowings were
actually outstanding during the applicable four-quarter
reference period.
In
addition, for purposes of calculating the Fixed Charge
Coverage Ratio: (i) acquisitions that have
been made by the specified Person or any of its Restricted
Subsidiaries, including through mergers or consolidations and
including any related financing transactions, during the
four-quarter reference period or subsequent to such reference
period and on or prior to the Fixed Charge Coverage Ratio
Calculation Date shall be deemed to have occurred on the first
day of the four-quarter reference period and Consolidated Cash
Flow for such reference period
shall
be calculated without giving effect to clause (iii) of the
proviso set forth in the definition of Consolidated Net
Income; (ii) if since the beginning of such period any Person
(that subsequently became a Restricted Subsidiary or was
merged with or into the Company or any Restricted Subsidiary
since the beginning of such period) shall have made any
Investment, acquisition, disposition, merger or consolidation
that would have required adjustment pursuant to this
definition, then the Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect
thereto for such period as if such Investment, acquisition,
disposition, merger or consolidation had occurred at the
beginning of the applicable four-quarter period; (iii)
whenever pro
forma effect is to be given to an Investment,
acquisition, disposition, merger or consolidation and the
amount of income or earnings relating thereto, the pro forma
calculations shall be determined in good faith by a
responsible financial or accounting officer of the Company and
shall comply with the requirements of Rule 11-02 of Regulation
S-X promulgated by the SEC, except that such pro forma
calculations may include operating expense reductions for such
period resulting from such transaction which is being given
pro forma effect that have been realized or (A) for which the
steps necessary for realization have been taken (or are taken
concurrently with such transaction) or (B) with respect to any
transactions, for which the steps necessary for realization
are reasonably expected to be taken within the 12-month period
following such transaction and, in each case, including, but
not limited to, (a) reduction in personnel expenses, (b)
reduction of costs related to administrative functions (c)
reduction of costs related to leased or owned properties and
(d) reductions from the consolidation of operations and
streamlining of corporate overhead; (iv) if any Indebtedness
bears a floating rate of interest and is being given
pro
forma effect, the interest on such Indebtedness shall
be calculated as if the rate in effect on the Fixed Charge
Coverage Ratio Calculation Date had been the applicable rate
for the entire period (taking into account any Hedging
Obligations applicable to such Indebtedness); (v) interest on
a Capital Lease Obligation shall be deemed to accrue at an
interest rate reasonably determined by a responsible financial
or accounting officer of the Company to be the rate of
interest implicit in such Capital Lease Obligation in
accordance with GAAP; (vi) interest on any Indebtedness under
a revolving credit facility computed on a pro forma basis
shall be computed based upon the average daily balance of such
Indebtedness during the applicable period, and interest on
Indebtedness that may optionally be determined at an interest
rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rate, shall be
deemed to have been based upon the rate actually chosen, or,
if none, then based upon such optional rate chosen as the
Company may designate; (vii) the Consolidated Cash Flow
attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of
prior to the Fixed Charge Coverage Ratio Calculation Date,
shall be excluded; and (viii) the Fixed Charges attributable
to discontinued operations, as determined in accordance with
GAAP, and operations or businesses disposed of prior to the
Fixed Charge Coverage Ratio Calculation Date, shall be
excluded.
“
GAAP
” means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of
the accounting profession, which are in effect from time to
time.
“
Global Note
Legend ” means the legend set forth in Section
2.06(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, in the form of Exhibit A-1 hereto issued in
accordance with Section 2.01, 2.06(b) or 2.06(d)
hereof.
“
Government
Securities ” means direct obligations of, or
obligations guaranteed by, the United States of America
(including any agency or instrumentality thereof) for the
payment of which guarantee or obligations the full faith and
credit of the United States is pledged.
“
Guarantee
” means a guarantee other than by endorsement of
negotiable instruments for collection in the ordinary course
of business, direct or indirect, in any manner including,
without limitation, by way of a pledge of assets or through
letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness.
“
Guarantors
” means each of: (i) the Parent Company, (ii)
each Subsidiary Guarantor and (iii) any other Subsidiary that
executes a Note Guarantee in accordance with the provisions of
this Indenture, and their respective successors and
assigns.
“
Hedging
Obligations ” means, with respect to any Person,
the obligations of such Person under: (i) interest
rate swap agreements, interest rate cap agreements and
interest rate collar agreements; (ii) other agreements or
arrangements designed to protect such Person against
fluctuations in interest rates or the value of foreign
currencies purchased or received by such Person in the
ordinary course of business; and (iii) any commodity
futures or option contract or similar commodity hedging
contract designed to protect such Person against fluctuations
in commodity prices.
“
Holder
” means the Person in whose name a Note is registered on
the Registrar’s books.
“
Indebtedness
” means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent, in
respect of: (i) borrowed money; (ii) evidenced by
bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof); (iii)
banker’s acceptances; (iv) representing Capital Lease
Obligations; (v) the balance deferred and unpaid of the
purchase price of any property, except any such balance that
constitutes an accrued expense or trade payable; or (vi)
representing any Hedging Obligations, 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 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) and, to the extent not otherwise included, the
Guarantee by such Person of any indebtedness of any other
Person.
The
amount of any Indebtedness outstanding as of any date 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.
“
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.
“
Institutional
Accredited Investor ” means an institution that
is an “accredited investor” as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities
Act.
“
Intercompany
Notes ” means the intercompany notes issued by
Restricted Subsidiaries of the Company that are not Guarantors
in favor of the Company or a Guarantor to evidence advances by
the Company or such Guarantor, in each case, in the form
attached as Exhibit F to this Indenture.
“
Investments
” means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the
forms of direct or indirect loans (including guarantees of
Indebtedness or other obligations), advances or capital
contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course
of business), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other
securities, together with all items that would be classified
as investments on a balance sheet prepared in accordance with
GAAP excluding Hedging Obligations. If the Company
or any Restricted Subsidiary of the Company sells or otherwise
disposes of any Equity Interests of any direct or indirect
Restricted Subsidiary of the Company such that, after giving
effect to any such sale or disposition, such Person is no
longer a Restricted Subsidiary of the Company, the Company
shall be deemed to have made an Investment on the date of any
such sale or disposition equal to the fair market value of the
Equity Interests of such Subsidiary not sold or disposed of in
an amount determined as provided in the final paragraph of
Section 4.08 hereof. The acquisition by the Company
or any Subsidiary of the Company of a Person that holds an
Investment in a third Person will be deemed to be an
Investment by the Company or such Subsidiary in such third
Person in an amount equal to the fair market value of the
Investment held by the acquired Person in such third Person in
an amount determined as provided in the final paragraph of
Section 4.08 of this Indenture.
“
Legal
Holiday ” means a Saturday, a Sunday or a day on
which banking institutions in the City of New York, 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 for the intervening
period.
“
Lien
” means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind
in respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law, including any
conditional sale or other title retention agreement, any lease
in the nature thereof, any option or other agreement to sell
or give a security interest in and any filing of or agreement
to give any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any
jurisdiction.
“
Liquidated
Damages ” means all liquidated damages then owing
pursuant to Section 3 of the Registration Rights
Agreement.
“
Loan
Agreement ” means the Loan Agreement, dated as of
August 30, 2007, among the Company, the Parent Company, Lehman
Commercial Paper Inc., as Administrative Agent, and the
lenders party thereto, relating to a new senior unsecured loan
facility.
“
Loans
” means the $175,000,000 aggregate principal amount of
debt incurred by the Company pursuant to the Loan
Agreement.
“
Net
Income ” means, with respect to any Person, the
net income (loss) of such Person and its Restricted
Subsidiaries, determined in accordance with GAAP and before
any reduction in respect of preferred stock dividends,
excluding, however:
(i) any
gain (but not loss), together with any related provision for
taxes on such gain (but not loss), realized in connection
with: (a) any Asset Sale; or (b) the disposition of any
securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such
Person or any of its Restricted Subsidiaries; and
(ii) any
extraordinary or nonrecurring gain or loss, together with any
related provision for taxes on such extraordinary or
nonrecurring gain or loss.
“
Net
Proceeds ” means the aggregate cash proceeds
received by the Company or any of its Restricted Subsidiaries
in respect of any Asset Sale (including, without limitation,
any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of the
direct costs relating to such Asset Sale, including, without
limitation, legal, accounting and investment banking fees, and
sales commissions, and any relocation expenses incurred as a
result thereof, taxes paid or payable as a result thereof, in
each case after taking into account any available tax credits
or deductions and any tax sharing arrangements and amounts
required to be applied to the repayment of Indebtedness
secured by a Lien on the asset or assets that were the subject
of such Asset Sale and any reserve for adjustment in respect
of the sale price of such asset or assets established in
accordance with GAAP.
“
Non-Guarantor
Restricted Subsidiary ” means any Restricted
Subsidiary of the Company that is not a
Guarantor.
“
Non-Recourse
Debt ” means Indebtedness: (i) as to
which neither the Company nor any of its Restricted
Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable
as a guarantor or otherwise, or (c) constitutes the lender;
and (ii) no default with respect to which (including any
rights that the holders thereof may have to take enforcement
action against an Unrestricted Subsidiary) would permit upon
notice, lapse of time or both any holder of any other
Indebtedness (other than the Notes) of the Company or any of
its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or
payable prior to its stated maturity.
“
Non-U.S.
Person ” means a person who is not a U.S.
Person.
“
North American
Subsidiary ” means a Restricted Subsidiary formed
under the laws of a state of the United States (including the
District of Columbia), or under the laws of a
province
of Canada, that has a principal place of business within the
United States, or Canada, as applicable.
“
Note
Custodian ” means the Trustee, as custodian with
respect to the Global Notes, or any successor entity
thereto.
“
Note
Guarantee ” means, individually and collectively,
the guarantees given by the Guarantors pursuant to Article 10
hereof, including a notation in the Notes substantially in the
form attached hereto as Exhibit D.
“
Notes
” has the meaning assigned to it in the preamble to this
Indenture.
“
Obligations
” means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any
Indebtedness.
“
Offering
” means the resale of the Notes.
“
Officer
” means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief
Operating Officer, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, the Controller, the Secretary or any
Vice-President of such Person, or any Guarantor, as
applicable.
“
Officers’
Certificate ” means a certificate signed on
behalf of the Company by two Officers of the Company, one of
whom must be the principal executive officer, the principal
financial officer or the principal accounting officer of the
Company, that meets the requirements of Section 12.05
hereof.
“
Opinion of
Counsel ” means an opinion from legal counsel who
is reasonably acceptable to the Trustee, that meets the
requirements of Section 12.05 hereof. The counsel
may be an employee of or counsel to the Company (or any
Guarantor, if applicable), the Parent Company, any Subsidiary
of the Company or the Trustee.
“
Parent
Company ” means Cenveo, Inc., a Colorado
corporation.
“
Participant
” means, with respect to DTC, a Person who has an
account with DTC.
“
Permitted
Businesses ” means the printing business
generally including the business conducted by the Company and
its Subsidiaries as of the Conversion Date and any other
business or businesses ancillary, complementary or related
thereto.
“
Permitted
Investments ” means, (i) any Investment in the
Company or in a Restricted Subsidiary of the Company;(ii) any
Investment in Cash Equivalents; (iii) any Investment by
the Company or any Restricted Subsidiary of the Company in a
Person if as a result of such Investment: (a) such
Person becomes a Restricted Subsidiary of the Company; or (b)
such Person, in one transaction or a series of related
transactions, is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets
to, or is liquidated
into,
the Company or a Restricted Subsidiary of the Company; (iv)
any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and
in compliance with Section 4.07 hereof; (v) Investments
existing as of the date of this Indenture; (vi) any
acquisition of assets solely in exchange for the issuance of
Equity Interests of the Company; (vii) accounts
receivable, endorsements for collection, deposits or similar
Investments arising in the ordinary course of business; (viii)
any Investment by the Company or a Restricted Subsidiary in
assets of a Permitted Business or assets to be used in a
Permitted Business; (ix) stock, obligations or securities
received in settlement of debts created in the ordinary course
of business and owing to the Company or any Subsidiary or in
satisfaction of judgments; (x) the acceptance of notes payable
from and loans and advances to officers, directors and
employees of the Company or its Subsidiaries in payment for
the purchase of Capital Stock; and (xi) any other Investment
acquired by the Company or any of its Restricted Subsidiaries;
(a) in exchange for any other Investment or accounts
receivable held by the Company or any such Restricted
Subsidiary in connection with or as a result of a bankruptcy,
workout, reorganization or recapitalization of the issuer of
such other Investment or accounts receivable (including any
trade creditor or customer); or (b) as a result of a
foreclosure by the Company or any of its Restricted
Subsidiaries with respect to any secured Investment or other
transfer of title with respect to any secured Investment in
default; (xii) Hedging Obligations permitted under clause
(vii) of Section 4.09 hereof; (xiii) guarantees of
Indebtedness permitted under Section 4.09 hereof; (xiv)
Investments consisting of purchases and acquisitions of
inventory, supplies, material or equipment; (xv) advances to,
or guarantees of Indebtedness of, employees not in excess of
$5 million outstanding at any one time, in the aggregate;
(xvi) loans and advances to officers, directors and employees
for business-related travel expenses, moving expenses and
other similar expenses, in each case incurred in the ordinary
course of business; (xvii) advances, loans or extensions of
trade credit in the ordinary course of business by the Company
or any of its Restricted Subsidiaries; and (xviii) any other
investment in any Person having an aggregate fair market value
(measured on the date each such Investment was made and
without giving effect to subsequent changes in value), when
taken together with all other Investments made pursuant to
this clause (xviii) since the Conversion Date and existing at
the time such Investment was made, did not exceed $50
million.
“
Permitted
Liens ” means (i) Liens incurred to secure
Obligations in respect of any Indebtedness under Credit
Facilities permitted to be incurred pursuant to Section 4.09
hereof; provided that,
with respect to Liens securing Obligations permitted under
this clause (i), at the time of incurrence and after giving
pro forma effect thereto, the Consolidated Secured Debt Ratio
would be no greater than 3.75 to 1.0; (ii) Liens in favor of
the Company or the Guarantors; (iii) Liens when the Notes are
secured by such Lien on an equal and ratable basis unless the
Obligation secured by any such Lien is subordinate or junior
in right of payment to the Notes, in which case the Lien
securing such Obligation must be subordinate and junior to the
Lien securing the Notes with the same or lesser relative
priority as such Obligation shall have been with respect to
the Notes; (iv) Liens on property of a Person existing at the
time such Person becomes a Restricted Subsidiary or is merged
with or into or consolidated with the Company or any
Restricted Subsidiary of the Company, provided that
such Liens were in existence prior to the contemplation of
such acquisition, merger or consolidation and do not extend to
any assets other than those of the Person acquired or merged
into or consolidated with the Company or the Restricted
Subsidiary; (v) Liens on property existing at the time of
acquisition thereof by the Company or any Restricted
Subsidiary of the Company, provided that
such Liens were in
existence
prior to the contemplation of such acquisition; (vi) Liens to
secure the performance of statutory obligations, surety or
appeal bonds, performance bonds or other obligations of a like
nature incurred in the ordinary course of business; (vii)
Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by Section 4.09 (b)(iv) hereof; (viii)
Liens existing on the Conversion Date; (ix) Liens for taxes,
assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently
concluded, provided that any
reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor;
(x) Liens incurred or deposits made in the ordinary
course of business in connection with workers’
compensation, unemployment insurance and other types of social
security, old age pension or public liability obligations or
to secure the payment or performance of bids, tenders,
statutory or regulatory obligations, surety, stay, or appeal
bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business; (xi) easements,
rights-of-way, restrictions, defects or irregularities in
title and other similar charges or encumbrances not
interfering in any material respect with the business of the
Company or any of its Subsidiaries; (xii) purchase money
liens (including extensions and renewals thereof); (xiii)
Liens securing reimbursement obligations with respect to
letters of credit which encumber only documents and other
property relating to such letters of credit and the products
and proceeds thereof; (xiv) judgment and attachment Liens
not giving rise to an Event of Default; (xv) Liens encumbering
deposits made to secure obligations arising from statutory,
regulatory, contractual or warranty requirements; (xvi) Liens
arising out of consignment or similar arrangements for the
sale of goods; (xvii) any interest or title of a lessor in
property subject to any Capital Lease Obligation or operating
lease; (xviii) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, suppliers, materialmen,
repairmen and other Liens imposed by law incurred in the
ordinary course of business for sums not yet delinquent or
being contested in good faith by appropriate proceeding, if
such reserve or other appropriate provision, if any, as shall
be required by GAAP shall have been made in respect thereof;
(xix) Liens upon specific items of inventory or other goods
and proceeds of any Person securing such Person’s
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; (xx) Liens securing Hedging Obligations that are
otherwise permitted under this Indenture; (xxi) leases or
subleases granted to others that do not materially interfere
with the ordinary course of business of the Company and its
Subsidiaries; (xxii) Liens arising from filing Uniform
Commercial Code financing statements regarding leases; (xxiii)
Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of custom duties in connection
with the importation of goods; (xxiv) Liens in favor of
collecting or payor banks having a right of setoff,
revocation, refund or chargeback with respect to money or
instruments of the Company or any Subsidiary on deposit with
or in possession of such bank; (xxv) Liens to secure
Non-Recourse Debt; (xxvi) Liens in favor of customers and
revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation
of goods in the ordinary course of business; (xxvii) Liens (a)
of a collection bank arising under the Uniform Commercial Code
on items in the course of collection, (b) encumbering
reasonable customary initial deposits and margin deposits and
similar Liens attaching to commodity trading accounts or other
commodity or brokerage accounts incurred in the ordinary
course of business, and (c) in favor of banking institutions
arising as a matter of law encumbering deposits (including the
right of set-off) and which are within the general parameters
customary in the banking industry; (xxviii) any encumbrance or
restriction (including put and
call
arrangements) with respect to capital stock of any joint
venture or similar arrangement pursuant to any joint venture
of similar agreement; (xxix) Liens to secure any Permitted
Refinancing Indebtedness (or successive Permitted Refinancing
Indebtedness) which refinances as a whole, or in part, any
Indebtedness secured by any Lien referred to in the foregoing
clauses (i), (iv), (v), (vii), (viii) and (xii); provided ,
however ,
that: (A) such new Lien shall be limited to all or
part of the same property that secured the original Lien (plus
improvements to or on such property) and (B) the Indebtedness
secured by such Lien at such time is not increased to any
amount greater than the sum of: (1) the outstanding
principal amount or, if greater, committed amount of the
Indebtedness secured by Liens described under clauses (i),
(iv), (v), (vii), (viii) or (xii) at the time the original
Lien became a Permitted Lien under this Indenture and
(2) an amount necessary to pay any fees and expenses,
including premiums, related to such Permitted Refinancing
Indebtedness; and (xxx) Liens not otherwise permitted by
clauses (i) through (xxix) that are incurred in the ordinary
course of business of the Company or any Subsidiary of the
Company with respect to obligations that do not exceed $25
million at any one time outstanding.
“
Permitted
Payments to Parent Company ” means (i) payments
to the Parent Company in an amount sufficient to permit the
Parent Company to pay reasonable and necessary operating
expenses and other general corporate expenses to the extent
such expenses relate or are fairly allocable to the Company
and its Subsidiaries including any reasonable professional
fees and expenses not in excess of $5 million in the aggregate
during any consecutive 12-month period; (ii) payment to the
Parent Company to enable the Parent Company to pay foreign,
federal, state or local tax liabilities (“Tax
Payment”), not to exceed the amount of any tax
liabilities that would be otherwise payable by the Company and
its Subsidiaries to the appropriate taxing authorities if they
filed separate tax returns, to the extent that the Parent
Company has an obligation to pay such tax liabilities relating
to the operations, assets or capital of the Company or its
Subsidiaries; provided ,
however that (a),
notwithstanding the foregoing, in the case of determining the
amount of a Tax Payment that is permitted to be paid by the
Company and any of its U.S. Subsidiaries in respect of their
Federal income tax liability, such payment shall be determined
assuming that the Company is the parent company of an
affiliated group (the “Company Affiliated Group”)
filing a consolidated Federal income tax return and that the
Parent Company and each such U.S. Subsidiary is a member of
the Company Affiliated Group and (b) any Tax Payments shall
either be used by the Parent Company to pay such tax
liabilities within 90 days of the Parent Company’s
receipt of such payment or refunded to the party from whom the
Parent Company received such payments; and (iii) payments to
the Parent Company in an amount sufficient to permit the
Parent Company to repurchase, redeem or other acquire or
retire for value any Equity Interests of the Parent Company or
any Restricted Subsidiary of the Parent Company held by any
member of the Parent Company’s (or any of its
Subsidiaries’) management pursuant to any management
equity subscription agreement or stock option agreement in
effect as of the date of this Indenture; provided that the
aggregate price paid for all such repurchased, redeemed,
acquired or retired Equity Interests shall not exceed $10
million in any calendar year (with unused amounts in any
calendar year being carried over to the next succeeding year,
not to exceed an aggregate of $20 million in any calendar
year).
“
Permitted
Refinancing Indebtedness ” means any Indebtedness
of the Company or any of its Restricted Subsidiaries issued in
exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease or refund other
Indebtedness of the Company or any of its Restricted
Subsidiaries (other than intercompany Indebtedness);
provided
that: (i) the
principal
amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount
of (or accreted value, if applicable), plus accrued interest
on the Indebtedness so extended, refinanced, renewed,
replaced, defeased or refunded (plus the amount of reasonable
expenses incurred in connection therewith including premiums
paid, if any, to the Holder thereof); (ii) such Permitted
Refinancing Indebtedness has a final maturity date either no
earlier than the final maturity date of the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded
or 91 days following the maturity of the Notes, and has a
Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded;
(iii) If the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of
payment to the Notes, such Permitted Refinancing Indebtedness
has a final maturity date no earlier than the final maturity
date of, and is subordinated in right of payment to, the Notes
on terms at least as favorable to the Holders of Notes as
those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; and (iv) such Indebtedness is incurred
either by the Company or by the Restricted Subsidiary who is
the obligor on the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded.
“
Person
” means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust,
unincorporated organization or government or agency or
political subdivision thereof (including any subdivision or
ongoing business of any such entity or substantially all of
the assets of any such entity, subdivision or
business).
“
Principals
” means the officers and directors of the Parent Company
at the date of this Indenture, their Affiliates (as such term
is defined under the Exchange Act) and the Parent
Company’s and Company’s Employee Stock Ownership
Plan and Trust.
“
Private
Placement Legend ” means the legend set forth in
Section 2.06(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 that certain agreement
among the Company, the Guarantors and Lehman Brothers Inc.
that may require the Company to file a shelf registration
statement to register resales of the notes.
“
Regulation
S ” means Regulation S promulgated under the
Securities Act.
“
Regulation S
Global Note ” means a Regulation S Temporary
Global Note or Regulation S Permanent Global Note, as
appropriate.
“
Regulation S
Permanent Global Note ” means a permanent Global
Note in the form of Exhibit A-1 hereto bearing the Global Note
Legend and the Private Placement Legend and deposited with or
on behalf of and registered in the name of the Depositary or
its nominee, issued in a denomination equal to the outstanding
principal amount of the 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 A-2 hereto bearing the Private
Placement Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee,
issued in a denomination equal to the outstanding principal
amount of the Notes initially sold in reliance on Rule 903 of
Regulation S.
“
Related
Party ” with respect to any Principal means (i)
any controlling stockholder, 80% or more owned Subsidiary, or
spouse or immediate family member (in the case of an
individual) of such Principal; or (ii) any trust, corporation,
partnership or other entity, the beneficiaries, stockholders,
partners, owners or Persons beneficially holding an 80% or
more controlling interest of which consist of such Principal
and/or such other Persons referred to in the immediately
preceding clause (i).
“
Representative
” means the indenture trustee or other trustee, agent or
representative for any Senior Debt.
“
Responsible
Officer ,” when used with respect to the Trustee,
means any officer within the corporate trust department 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
Investment ” means an Investment other than a
Permitted Investment.
“
Restricted
Period ” means the 40-day restricted period as
defined in Regulation S.
“
Restricted
Subsidiary ” of a Person means any Subsidiary of
such Person that is not an Unrestricted
Subsidiary.
“
RSTD
Global Note ” means the Global Note in the form
of Exhibit A-1 hereto bearing the Global Note Legend and the
Private Placement Legend and deposited with and registered in
the name of the Depositary or its nominee which will be issued
in a denomination equal to the outstanding principal amount of
the Notes transferred or exchanged to the Company or any of
its Subsidiaries, pursuant to an effective registration
statement under the Securities Act or pursuant to Rule 144
under the Securities Act.
“
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 the Securities
Act.
“
SEC
” means the Securities and Exchange
Commission.
“
Securities
Act ” means the Securities Act of 1933, as
amended.
“
Senior
Debt ” means (i) all Indebtedness outstanding
under Credit Facilities and all Hedging Obligations with
respect thereto; (ii) any other Indebtedness permitted to be
incurred by the Company or any Restricted Subsidiary under the
terms of this Indenture unless the instrument under which such
Indebtedness is incurred expressly provides that it is on a
parity with or subordinated in right of payment to the Notes;
and (iii) all Obligations with respect to the items listed in
the preceding clauses (i) and (ii). Notwithstanding anything
to the contrary in the preceding sentence, Senior Debt will
not include: (i) any liability for federal, state,
local or other taxes owed or owing by the Company; (ii) any
Indebtedness of the Company to any of its Subsidiaries or
other Affiliates; (iii) any trade payables; or (iv) any
Indebtedness that is incurred in violation of this Indenture
other than Indebtedness under a Credit Facility that is
incurred on the basis of a representation by the Company to
the applicable lenders that it is permitted to incur such as
Indebtedness under this Indenture.
“
Shelf
Registration Statement ” shall have the meaning
specified in the Registration Rights Agreement.
“
Significant
Subsidiary ” means any Subsidiary that is, or
would be, a “significant subsidiary” as defined in
Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant
to the Securities Act, as such Regulation is in effect on the
date of this Indenture.
“
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 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 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 of one or more Subsidiaries of such
Person (or any combination thereof).
“
Subsidiary
Guarantor ” means any Restricted Subsidiary that
shall have guaranteed, pursuant to this Indenture or a
supplemental indenture and the requirements therefor set forth
in this Indenture, the payment of all principal of, and
interest and premium, if any, on the Notes and all other
amounts payable under the Notes or this
Indenture.
“
Tax
Payment ” means any payment of foreign, federal,
state or local tax liabilities.
“
TIA
” means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date on which this
Indenture is qualified under the TIA, except as provided in
Section 9.03 hereof.
“ Transactions
”
means the incurrence of the Obligations under the Loan Agreement
and the Company’s Conversion of the Loans into the
Notes.
“
Trustee
” means the party named as such above 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 in
the form of Exhibit A-1 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.
“
Unrestricted
Subsidiary ” means any Subsidiary of the Company
that is designated by the Board of Directors as an
Unrestricted Subsidiary pursuant to a board resolution, but
only to the extent that such Subsidiary: (i) has no
Indebtedness other than Non-Recourse Debt; (ii) is not a party
to any agreement, contract, arrangement or understanding with
the Company or any Restricted Subsidiary of the Company unless
the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the
time from Persons who are not Affiliates of the Company; (iii)
is a Person with respect to which neither the Company nor any
of its Restricted Subsidiaries has any direct or indirect
obligation (a) to subscribe for additional Equity Interests or
(b) to maintain or preserve such Person’s financial
condition or to cause such Person to achieve any specified
levels of operating results; and (iv) has not guaranteed or
otherwise directly or indirectly provided credit support for
any Indebtedness of the Company or any of its Restricted
Subsidiaries.
Any
designation of a Subsidiary of the Company as an Unrestricted
Subsidiary shall be evidenced to the Trustee by filing with
the Trustee a certified copy of the board resolution giving
effect to such designation and an Officers’ Certificate
certifying that such designation complied with the preceding
conditions and was permitted by Section 4.08
hereof. If, at any time, any Unrestricted
Subsidiary would fail to meet the preceding requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any
Indebtedness of such Subsidiary shall be deemed to be incurred
by a Restricted Subsidiary of the Company as of such date and,
if such Indebtedness is not permitted to be incurred as of
such date under Section 4.09 hereof, the Company shall be in
default of such covenant. The Board of Directors of
the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that
such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any
outstanding Indebtedness of such Unrestricted Subsidiary and
such designation shall only be permitted if (i)
such
Indebtedness is permitted under Section 4.09 hereof,
calculated on a pro forma basis
as if such designation had occurred at the beginning of the
four-quarter reference period; and (ii) no Default or Event of
Default would be in existence following such
designation.
“
U.S.
Person ” means a U.S. person as defined in Rule
902(k) 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.
“
Weighted Average
Life to Maturity ” means, when applied to any
Indebtedness at any date, the number of years obtained by
dividing: (i) the sum of the products of (a) the
amount of each then remaining installment, sinking fund,
serial maturity or other required payment of principal,
including payment at final maturity, in respect thereof, and
(b) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making
of such payment; by (ii) the then outstanding principal amount
of such Indebtedness.
“
Wholly Owned
Restricted Subsidiary ” of any Person means a
Restricted Subsidiary of such Person all of the outstanding
Capital Stock or other ownership interests of which (other
than directors’ qualifying shares) shall at the time be
owned by such Person and/or by one or more Wholly Owned
Restricted Subsidiaries of such Person.
“
Wholly Owned
Subsidiary ” of any Person means a Subsidiary of
such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors’
qualifying shares) shall at the time be owned by such Person
or by one or more Wholly Owned Subsidiaries of such Person or
by such Person and one or more Wholly Owned Subsidiaries of
such Person.
SECTION
1.02.
Other
Definitions .
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 and the Note
Guarantees;
“indenture
security Holder” means a Holder of a Note;
“indenture
to be qualified” means this Indenture;
“indenture
trustee” or “institutional trustee” means
the Trustee;
“obligor”
on the Notes means the Company or any Guarantor and any
successor obligor upon the Notes.
All
other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by
SEC rule under the TIA have the meanings so assigned to
them.
SECTION
1.04.
Rules of
Construction .
Unless
the context otherwise requires:
(i) a
term has the meaning assigned to it;
(ii) an
accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(iii) “or”
is not exclusive;
(iv) words
in the singular include the plural, and in the plural include
the singular;
(v) provisions
apply to successive events and transactions; and
(vi) references
to sections of or rules under the Securities Act shall be
deemed to include substitute, replacement or successor
sections or rules adopted by the SEC from time to
time.
ARTICLE
2
SECTION
2.01.
Form and
Dating .
The
Notes and the Trustee’s certificate of authentication
shall be substantially in the form of Exhibit A-1
hereto. The notation on each Note relating to the
Note Guarantees shall be substantially in the form set forth
on Exhibit D, which is a part of this
Indenture. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its
authentication. The Notes shall be in denominations
of $1,000 and integral multiples thereof.
The
terms and provisions contained in the Notes (including the
Note Guarantees) 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.
Notes
issued in global form shall be substantially in the form of
Exhibit A-1 attached hereto (including the Global Note Legend
and the “Schedule of Exchanges in the Global Note”
attached thereto). Notes issued in definitive form
shall be substantially in the form of Exhibit A-1 attached
hereto (but without the Global Note Legend 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 outstanding Notes
from time to time endorsed thereon and that the aggregate
principal amount of outstanding Notes represented thereby may
from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement
of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding
Notes represented thereby shall be made by the Trustee or the
Note Custodian, at the direction of the Trustee, in accordance
with instructions given by the Holder thereof as required by
Section 2.06 hereof.
Notes
offered and sold in reliance on Regulation S shall be issued
initially in the form of the Regulation S Temporary Global
Note (accompanied by a notation of the Note Guarantees duly
endorsed by the Guarantors), which shall be deposited on
behalf of the
purchasers
of the Notes represented thereby with the Trustee, at its St.
Paul, Minnesota office, as custodian for the Depositary, and
registered in the name of the Depositary or the nominee of the
Depositary, 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 the Depositary, together with
copies of certificates from a participant certifying that they
have received certification of non-United States beneficial
ownership of 100% of the aggregate principal amount of the
Regulation S Temporary Global Note (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 will take
delivery of a beneficial ownership interest in a 144A Global
Note or an RSTD Global Note bearing a Private Placement
Legend, all as contemplated by Section 2.06(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.
SECTION
2.02.
Execution and
Authentication .
Two
Officers shall sign the Notes for the Company by manual or
facsimile signature. The Company’s seal shall
be reproduced on the Notes and may be in facsimile
form.
If
an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall
nevertheless be valid.
A
Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be
conclusive evidence that the Note has been authenticated under
this Indenture.
The
Trustee shall, upon a written order of the Company signed by
two Officers, authenticate Notes, with the Note Guarantees
endorsed thereon, for original issue up to the aggregate
principal amount stated in paragraph 4 of the
Notes. The aggregate principal amount of Notes
outstanding at any time may not exceed such amount except as
provided in Section 2.07 hereof. The aggregate
principal amount of the Notes that may be issued under this
Indenture is unlimited.
The
Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating
agent may authenticate Notes whenever the Trustee may do
so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights
as an Agent to deal with Holders or an Affiliate of the
Company.
SECTION
2.03.
Registrar and
Paying Agent .
The
Company and the Guarantors shall maintain an office or agency
where Notes may be presented for registration of transfer or
for exchange (“Registrar”) and an office or agency
where Notes may be presented for payment (“Paying
Agent”). The Registrar shall keep a register
of the Notes and of their transfer and
exchange. The Company may appoint one or more
co-registrars and one or more additional paying
agents. The term “Registrar” includes
any co-registrar and the term “Paying Agent”
includes any additional paying agent. The Company
may change any Paying Agent or Registrar without notice to any
Holder. The Company shall notify the Trustee in
writing of the name and address of any Agent not a party to
this Indenture. The Trustee will initially act as
Paying Agent and Registrar for the Notes. The
Company may change the Paying Agent or Registrar without prior
notice to the Holders of the Notes, or the Company or any of
its Subsidiaries or the Parent Company may act as Paying Agent
or Registrar. 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
the Guarantors may act as Paying Agent or
Registrar.
The
Company initially appoints The Depository Trust Company
(“DTC”) to act as Depositary with respect to the
Global Notes.
The
Company initially appoints the Trustee to act as the Registrar
and Paying Agent and to act as Note Custodian with respect to
the Global Notes.
SECTION
2.04.
Paying Agent to
Hold Money in Trust .
The
Company shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent will hold in trust
for the benefit of Holders or the Trustee all money held by
the Paying Agent for the payment of principal, premium or
Liquidated Damages, if any, or interest on the Notes, and will
notify the Trustee of any default by the Company or the
Guarantors in making any such payment. While any
such default continues, the Trustee may require a Paying Agent
to pay all money held by it to the Trustee. The
Company at any time may require a Paying Agent to pay all
money held by it to the Trustee. Upon payment over
to the Trustee, the Paying Agent (if other than the Company or
a Guarantor) shall have no further liability for the
money. If the Company or a Guarantor acts as Paying
Agent, it shall segregate and hold in a separate trust fund
for the benefit of the Holders all money held by it as Paying
Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve
as Paying Agent for the Notes.
SECTION
2.05.
Holder
Lists .
The
Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names
and addresses of all Holders and shall otherwise comply with
TIA Section 312(a). If the Trustee is not the
Registrar, the Company and/or the Guarantors 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 and the Guarantors
shall otherwise comply with TIA Section 312(a).
SECTION
2.06.
Transfer and
Exchange .
(a)
Transfer and
Exchange of Global Notes . A Global Note may
not be transferred as a whole except by the Depositary to a
nominee of the Depositary, by a nominee of the Depositary to
the Depositary or to another nominee of the Depositary, or by
the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All
Global Notes will be exchanged by the 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 90
days after the date of such notice from the Depositary or (ii)
the Company in its sole discretion determines that the Global
Notes (in whole but not in part) should be exchanged for
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 under the
Securities Act. Upon the occurrence of either of
the preceding events in (i) or (ii) above, Definitive Notes
(accompanied by a notation of the Note Guarantees duly
endorsed by the Guarantors) shall be issued in such names as
the Depositary shall instruct the Trustee. Global
Notes also may be exchanged or replaced, in whole or in part,
as provided in Sections 2.07 and 2.11 hereof. Every
Note authenticated and delivered in exchange for, or in lieu
of, a Global Note or any portion thereof, pursuant to Section
2.07 or 2.11 hereof, shall be authenticated and delivered in
the form of, and shall be, a Global Note. A Global
Note may not be exchanged for another Note other than as
provided in this Section 2.06(a), however, beneficial
interests in a Global Note may be transferred and exchanged as
provided in Section 2.06(b) or (c) 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 in a resale
pursuant to Rule 144A). Beneficial interests in any
Unrestricted Global Note may be transferred only to Persons
who take delivery thereof in the form of a beneficial interest
in an Unrestricted Global Note. No written orders
or instructions shall be required to be delivered to the
Registrar to effect the transfers described in this Section
2.06(b)(i).
(ii)
All
Other Transfers and Exchanges of Beneficial Interests in
Global Notes . In connection with all
transfers and exchanges of beneficial interests in a Global
Note other than a transfer of a beneficial interest in a
Global Note to a Person who takes delivery thereof in the form
of a beneficial interest in the same Global Note, the
transferor of such beneficial interest must deliver to the
Registrar either (A) (i) a written order from a Participant or
an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial
interest to be transferred or exchanged and (ii) instructions
given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited
with such increase or (B) (i) a written order from a
Participant or an Indirect Participant given to the Depositary
in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an
amount equal to the beneficial interest to be transferred or
exchanged and (ii) instructions given by the Depositary to the
Registrar containing information regarding the Person in whose
name such Definitive Note shall be registered to effect the
transfer or exchange referred to in (i) 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
Restricted Period and (y) the receipt by the Registrar of any
certificates required pursuant to Rule 903 under the
Securities Act. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests
in Global Notes contained in this Indenture and the Notes or
otherwise applicable under the Securities Act, the Trustee
shall adjust the principal amount of the relevant Global
Note(s) pursuant to Section 2.06(h) hereof.
(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
clause (ii) above and the Registrar receives the
following:
(A) if
the transferee will take delivery in the form of a beneficial
interest in the 144A Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if
the transferee will take delivery in the form of a beneficial
interest in the Regulation S Temporary Global Note or the
Regulation S Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if
the transferee will take delivery in the form of a beneficial
interest in the RSTD Global Note, then the transferor must
deliver (x) a certificate in the form of Exhibit B hereto,
including the certifications and certificates and Opinion of
Counsel required by item (3) thereof, if
applicable.
(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 clause (ii) above
and:
(A) [Reserved]
(B) any
such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights
Agreement;
(C) [Reserved];
or
(D) the
Registrar receives the following:
(i) if
the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a
beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(a)
thereof;
(ii) if
the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person
who shall take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note, a certificate from
such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof; and
(iii) in
each such case set forth in this subparagraph (D), 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 not
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 (accompanied by a notation of the
Note Guarantees duly endorsed by the Guarantors) in an
aggregate principal amount equal to the 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) If
any holder of a beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a
Definitive Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Definitive
Note, then, upon 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
Definitive Note, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item (2)(a)
thereof;
(B) if
such beneficial interest is being transferred to a QIB in
accordance with Rule 144A 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 in item (3)(a)
thereof;
(E) if
such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other
than those listed in subparagraphs (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if
applicable;
(F) if
such beneficial interest is being transferred to the Company
or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(b) thereof; or
(G) if
such beneficial interest is being transferred pursuant to an
effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c)
thereof,
the
Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to
Section 2.06(h) hereof, and the Company shall execute and the
Trustee shall authenticate and deliver to the Person
designated in the instructions a Definitive Note (accompanied
by a notation of the Note Guarantees duly endorsed by the
Guarantors) in the appropriate principal
amount. Any Definitive Note issued in exchange for
a beneficial interest in a Restricted Global Note pursuant to
this Section 2.06(c)(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 2.06(c)(i)
shall
bear
the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
(ii) Notwithstanding
Sections 2.06(c)(i)(A) and (C) hereof, a beneficial interest
in the Regulation S Temporary Global Note may not be (A)
exchanged for 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 under the
Securities Act or (B) transferred to a Person who takes
delivery thereof in the form of a Definitive Note prior to the
conditions set forth in clause (A) above or unless the
transfer is pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 903 or Rule
904.
(iii) Notwithstanding
Section 2.06(c)(i) hereof, a holder of a beneficial interest
in a Restricted Global Note may exchange such beneficial
interest for an Unrestricted Definitive Note or may transfer
such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note only
if:
(A) [Reserved];
(B) any
such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights
Agreement;
(C) [Reserved];
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;
(2) if
the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person
who shall take delivery thereof in the form of a Definitive
Note that does not bear the Private Placement Legend, a
certificate from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and
in
each such case set forth in this subparagraph (D), an Opinion
of Counsel in form 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 not
required in order to maintain compliance with the Securities
Act.
(iv) If
any holder of a beneficial interest in an Unrestricted Global
Note proposes to exchange such beneficial interest for a
Definitive Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Definitive
Note,
then,
upon satisfaction of the conditions set forth in Section
2.06(b)(ii) hereof, the Trustee shall cause the aggregate
principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the
Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a
Definitive Note (accompanied by a notation of the Note
Guarantees duly endorsed by the Guarantors) in the appropriate
principal amount. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section
2.06(c)(iv) shall be registered in such name or names and in
such authorized denomination or denominations as the holder of
such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver
such Definitive Notes to the Persons in whose names such Notes
are so registered. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section
2.06(c)(iv) shall not bear the Private Placement
Legend. A beneficial interest in an Unrestricted
Global Note cannot be exchanged for a Definitive Note bearing
the Private Placement Legend or transferred to a Person who
takes delivery thereof in the form of a Definitive Note
bearing the Private Placement Legend.
(d)
Transfer and
Exchange of Definitive Notes for Beneficial Interests
.
(i) 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 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 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 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 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 in item (3)(A)
thereof;
(E) if
such Definitive Note is being transferred to an Institutional
Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than
those listed in subparagraphs (B)
through
(D) above, a certificate to the effect set forth in Exhibit B
hereto, including the certifications, certificates and Opinion
of Counsel required by item (3) thereof, if
applicable;
(F) if
such 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
(G) if
such Definitive Note is being transferred pursuant to an
effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(C) thereof, the
Trustee shall cancel the 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, in the
case of clause (C) above, the Regulation S Global Note, and in
all other cases, the RSTD Global Note.
(ii) 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) [Reserved];
(B) any
such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights
Agreement;
(C) [Reserved];
or
(D) the
Registrar receives the following:
(i) if
the Holder of such Definitive Notes proposes to exchange such
Notes for a beneficial interest in the Unrestricted Global
Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(c)
thereof;
(ii) if
the Holder of such Definitive Notes proposes to transfer such
Notes to a Person who shall take delivery thereof in the form
of a beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and
(iii) in
each such case set forth in this subparagraph (D), 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, that the restrictions on transfer
contained herein and in the Private Placement Legend are not
required in order to maintain compliance with the Securities
Act, and such Definitive Notes are being exchanged
or
transferred
in compliance with any applicable blue sky securities laws of
any State of the United States.
Upon
satisfaction of the conditions of any of the subparagraphs in
this Section 2.06(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) 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 (accompanied by a notation
of the Note Guarantees duly endorsed by the Guarantors) in an
aggregate principal amount equal to the principal amount of
beneficial interests transferred pursuant to subparagraphs
(ii)(B), (ii)(D) or (iii) above.
(e)
Transfer and
Exchange of Definitive Notes for Definitive Notes
. Upon request by a Holder of Definitive Notes and
such Holder’s compliance with the provisions of this
Section 2.06(e), the Registrar shall register the transfer or
exchange of Definitive Notes. Pri
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