EXECUTION COPY
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INDENTURE
Dated as of September 30, 2009
Among
APPLETON PAPERS INC.
as Issuer,
THE GUARANTORS NAMED HEREIN
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
and
Collateral Agent
11.25% SECOND LIEN NOTES DUE 2015
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<PAGE>
CROSS-REFERENCE TABLE*
Trust Indenture
Indenture
Act
Section
Section
--------------------- ------------------
310(a)(1)
7.10
(a)(2)
7.10
(a)(3)
N.A.
(a)(4)
N.A.
(a)(5)
7.10
(b)
7.10
(c)
N.A.
311(a)
7.11
(b)
7.11
(c)
N.A.
312(a)
2.05
(b)
12.03
(c)
12.03
313(a)
7.06
(b)
7.06; 7.07
(c)
7.06; 12.02
(d)
7.06
314(a)
4.03;
12.02; 12.05
(b)(1)
N.A.
(b)(2)
13.04
(c)
12.04
(d)
N.A.
(e)
12.05
(f)
N.A.
315(a)
7.01
(b)
7.05; 12.02
(c)
7.01
(d)
7.01
(e)
6.11
316(a)(last sentence) 2.09
(a)(1)(A)
6.05
(a)(1)(B)
6.04
(a)(2)
N.A.
(b)
6.07
(c)
2.12
317(a)(1)
6.08
(a)(2)
6.09
(b)
2.04
318(a)
12.01
(b)
N.A.
(c)
12.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
(i)
<PAGE>
Table of Contents
Page
ARTICLE I Definitions and Incorporation by
Reference...........................1
Section 1.01 Definitions
....................................................1
Section 1.02 Other
Definitions..............................................26
Section 1.03 Incorporation by Reference of Trust Indenture
Act..............26
Section 1.04 Rules of
Construction..........................................27
ARTICLE II The
Notes..........................................................27
Section 2.01 Form and
Dating................................................27
Section 2.02 Execution and
Authentication...................................28
Section 2.03 Registrar and Paying
Agent.....................................29
Section 2.04 Paying Agent to Hold Money in
Trust............................29
Section 2.05 Holder
Lists...................................................30
Section 2.06 Transfer and
Exchange..........................................30
Section 2.07 Replacement
Notes..............................................43
Section 2.08 Outstanding
Notes..............................................43
Section 2.09 Treasury
Notes.................................................43
Section 2.10 Temporary
Notes................................................43
Section 2.11
Cancellation...................................................44
Section 2.12 Defaulted
Interest.............................................44
Section 2.13 Issuance of Additional
Notes...................................44
ARTICLE III Redemption and
Prepayment.........................................45
Section 3.01 Notices to
Trustee.............................................45
Section 3.02 Selection of Notes to Be Redeemed or
Purchased.................45
Section 3.03 Notice of
Redemption...........................................45
Section 3.04 Effect of Notice of
Redemption.................................46
Section 3.05 Deposit of Redemption or Purchase
Price........................46
Section 3.06 Notes Redeemed or Purchased in
Part............................47
Section 3.07 Optional
Redemption............................................47
Section 3.08 Mandatory
Redemption...........................................48
Section 3.09 Offer to Purchase by Application of Excess
Proceeds............48
ARTICLE IV
Covenants..........................................................50
Section 4.01 Payment of
Notes...............................................50
Section 4.02 Maintenance of Office or
Agency................................50
Section 4.03
Reports........................................................51
Section 4.04 Compliance
Certificate.........................................52
Section 4.05
Taxes..........................................................52
Section 4.06 Stay, Extension and Usury
Laws.................................52
Section 4.07 Restricted
Payments............................................53
(ii)
<PAGE>
Table of Contents
(continued)
Page
Section 4.08 Dividend and Other Payment Restrictions
Affecting
Subsidiaries..................................................57
Section 4.09 Incurrence of Indebtedness and Issuance of
Preferred Stock.....58
Section 4.10 Asset
Sales....................................................63
Section 4.11 Transactions with
Affiliates...................................65
Section 4.12
Liens..........................................................66
Section 4.13 Business
Activities............................................67
Section 4.14 Corporate
Existence............................................67
Section 4.15 Offer to Repurchase Upon Change of
Control.....................67
Section 4.16 Amendment of Fox River Indemnity Arrangements,
Security
Holders Agreements or ESOP
Documentation......................69
Section 4.17 Limitation on Sale and Leaseback
Transactions..................70
Section 4.18 Payments for
Consent...........................................70
Section 4.19 Additional Note
Guarantees.....................................70
Section 4.20 Designation of Restricted and Unrestricted
Subsidiaries........71
Section 4.21 Mandatory Payment in Kind upon Change in
Ownership.............72
Section 4.22 Amendment of Security
Documents................................72
Section 4.23 Impairment of Security
Interest................................72
Section 4.24 After-Acquired
Property........................................73
ARTICLE V
Successors..........................................................73
Section 5.01 Merger, Consolidation, or Sale of
Assets.......................73
Section 5.02 Successor Corporation
Substituted..............................74
ARTICLE VI Defaults and
Remedies..............................................75
Section 6.01 Events of
Default..............................................75
Section 6.02
Acceleration...................................................77
Section 6.03 Other
Remedies.................................................77
Section 6.04 Waiver of Past
Defaults........................................78
Section 6.05 Control by
Majority............................................78
Section 6.06 Limitation on
Suits............................................78
Section 6.07 Rights of Holders of Notes to Receive
Payment..................79
Section 6.08 Collection Suit by
Trustee.....................................79
Section 6.09 Trustee May File Proofs of
Claim...............................79
Section 6.10
Priorities.....................................................79
Section 6.11 Undertaking for
Costs..........................................80
ARTICLE VII
Trustee...........................................................80
Section 7.01 Duties of
Trustee..............................................80
Section 7.02 Rights of
Trustee..............................................81
Section 7.03 Individual Rights of
Trustee...................................83
Section 7.04 Trustee's
Disclaimer...........................................83
Section 7.05 Notice of
Defaults.............................................83
(iii)
<PAGE>
Table of Contents
(continued)
Page
Section 7.06 Reports by Trustee to Holders of the
Notes.....................83
Section 7.07 Compensation and
Indemnity.....................................84
Section 7.08 Replacement of
Trustee.........................................85
Section 7.09 Successor Trustee by Merger,
etc...............................86
Section 7.10 Eligibility;
Disqualification..................................86
Section 7.11 Preferential Collection of Claims Against
Company..............86
ARTICLE VIII Legal Defeasance and Covenant
Defeasance.........................86
Section 8.01 Option to Effect Legal Defeasance or Covenant
Defeasance.......86
Section 8.02 Legal Defeasance and
Discharge.................................86
Section 8.03 Covenant
Defeasance............................................87
Section 8.04 Conditions to Legal or Covenant
Defeasance.....................87
Section 8.05 Deposited Money and Government Securities to be
Held in
Trust; Other Miscellaneous
Provisions.........................89
Section 8.06 Repayment to
Company...........................................89
Section 8.07
Reinstatement..................................................90
ARTICLE IX Amendment, Supplement and
Waiver...................................90
Section 9.01 Without Consent of Holders of
Notes............................90
Section 9.02 With Consent of Holders of
Notes...............................91
Section 9.03 Compliance with Trust Indenture
Act............................93
Section 9.04 Revocation and Effect of
Consents..............................93
Section 9.05 Notation on or Exchange of
Notes...............................93
Section 9.06 Trustee to Sign Amendments,
etc................................93
ARTICLE X Note
Guarantees.....................................................93
Section 10.01
Guarantee.....................................................93
Section 10.02 Limitation on Guarantor
Liability.............................95
Section 10.03 Execution and Delivery of Note
Guarantee......................95
Section 10.04 Guarantors May Consolidate, etc., on Certain
Terms............95
Section 10.05
Releases......................................................96
ARTICLE XI Satisfaction and
Discharge.........................................97
Section 11.01 Satisfaction and
Discharge....................................97
Section 11.02 Application of Trust
Money....................................98
ARTICLE XII
Miscellaneous.....................................................99
Section 12.01 Trust Indenture Act
Controls..................................99
Section 12.02
Notices.......................................................99
Section 12.03 Communication by Holders of Notes with Other
Holders of
Notes.......................................................100
Section 12.04 Certificate and Opinion as to Conditions
Precedent...........100
(iv)
<PAGE>
Table of Contents
(continued)
Page
Section 12.05 Statements Required in Certificate or
Opinion................100
Section 12.06 Rules by Trustee and
Agents..................................101
Section 12.07 No Personal Liability of Directors, Officers,
Employees
and Stockholders............................................101
Section 12.08 Governing
Law................................................101
Section 12.09 Waiver of Trial by
Jury......................................101
Section 12.10 No Adverse Interpretation of Other
Agreements................101
Section 12.11
Successors...................................................101
Section 12.12
Severability.................................................102
Section 12.13 Counterpart
Originals........................................102
Section 12.14 Table of Contents, Headings,
etc.............................102
ARTICLE XIII Collateral and
Security.........................................102
Section 13.01 Security
Interest............................................102
Section 13.02 Intercreditor
Agreement......................................103
Section 13.03 Collateral
Agent.............................................103
Section 13.04 Recording and
Opinions.......................................103
Section 13.05 Specified Releases of
Collateral.............................104
Section 13.06 Release of Collateral upon Satisfaction or
Defeasance of
all Outstanding Obligations.................................104
Section 13.07 Purchaser
Protected..........................................105
Section 13.08 Form and Sufficiency of
Release..............................105
EXHIBITS
Exhibit A1 -- Form of Note
Exhibit A2 -- Form of AI Definitive
Note
Exhibit B -- Form of Certificate of
Transfer
Exhibit C -- Form of Certificate of
Exchange
(v)
<PAGE>
INDENTURE,
dated as of September 30, 2009 among Appleton Papers Inc.,
a Delaware corporation (the "Company"), the Guarantors (as defined
herein) and
U.S. Bank National Association, as trustee (in such capacity, the
"Trustee") and
as Collateral Agent (as defined herein).
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 (as defined herein) of the 11.25% Second Lien Notes due
2015 (the
"Notes"):
ARTICLE I
Definitions and Incorporation by Reference
Section 1.01
Definitions.
"144A Global
Note" means a Global Note substantially in the form of
Exhibit A1 hereto bearing the Global Note Legend and the Private
Placement
Legend and deposited with or on behalf of, and registered in the
name of, the
Depositary or its nominee that will be issued in a denomination
equal to the
outstanding principal amount of the Notes sold in reliance on Rule
144A.
"Accredited
Investor" means a Person who is an "accredited investor"
as defined in Rule 501(a) under the Securities Act, who is not also
a QIB.
"Acquired
Debt" means, with respect to any specified Person:
(1)
Indebtedness of any other Person existing at the time such
other
Person is merged with or into or became a Subsidiary of such
specified Person,
whether or not such Indebtedness is incurred in connection with, or
in
contemplation of, such other Person merging with or into, or
becoming a
Restricted Subsidiary of, such specified Person; and
(2)
Indebtedness secured by a Lien encumbering any asset acquired
by
such specified Person.
"Additional
Notes" means additional Notes (other than the Initial
Notes) issued under this Indenture in accordance with Sections 2.02
and 4.09
hereof, as part of the same series as the Initial Notes.
"Affiliate"
of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect
common
control with such specified Person. For purposes of this
definition, "control,"
as used with respect to any Person, means the possession, directly
or
indirectly, of the power to direct or cause the direction of the
management or
policies of such Person, whether through the ownership of voting
securities, by
agreement or otherwise; provided that beneficial ownership of 10%
or more of the
Voting Stock of a Person will be deemed to be control. For purposes
of this
definition, the terms "controlling," "controlled by" and "under
common control
with" have correlative meanings.
<PAGE>
"Agent"
means any Registrar, co-registrar, Paying Agent or additional
paying agent.
"AI
Definitive Note" means a Definitive Note substantially in the
form
of Exhibit A2 hereto bearing the Private Placement Legend.
"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:
(1)
the sale, lease, conveyance or other Disposition of any assets
or
rights; provided that the sale, lease, conveyance or other
Disposition of all or
substantially all of the assets of the Company and its Subsidiaries
taken as a
whole will be governed by Section 4.15 and/or Section 5.01 hereof
and not by the
provisions of Section 4.10 hereof; and
(2)
the issuance of Equity Interests in any of the Company's
Restricted Subsidiaries or the sale of Equity Interests in any of
its Restricted
Subsidiaries.
Notwithstanding the preceding, none of the following items will be
deemed to be
an Asset Sale:
(1)
any single transaction or series of related transactions that
involves assets having a Fair Market Value of less than $2.0
million;
(2) a
sale or transfer of assets between or among the Company and its
Restricted Subsidiaries;
(3) an
issuance of Equity Interests by a Restricted Subsidiary of the
Company to the Company, any Parent Entity or to a Restricted
Subsidiary of the
Company or the issuance by the Parent Entity of its Capital Stock
to the ESOP;
(4)
the sale or lease of equipment, products, services or accounts
receivable in the ordinary course of business and any Disposition
of damaged,
worn-out or obsolete assets in the ordinary course of business;
(5)
the licensing of intellectual property in the ordinary course
of
business;
(6)
the Disposition of cash or Cash Equivalents;
(7) a
Restricted Payment that does not violate Section 4.07 hereof or
a Permitted Investment;
(8)
the granting of Liens that is permitted by Section 4.12 hereof;
and
(9)
surrender or waiver of contract rights or the settlement,
release
or surrender of contract, tort or other claims.
-2-
<PAGE>
"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;
provided,
however, that if such sale and leaseback transaction results in a
Capital Lease
Obligation, the amount of Indebtedness represented thereby will be
determined in
accordance with the definition of "Capital Lease Obligation."
"Authentication Order" means a written request or order signed by
one
Officer of the Company on behalf of the Company and delivered to
the Trustee.
"AWA" means
Arjo Wiggins Appleton p.l.c., a corporation incorporated
in England and Wales with company number 2454830.
"AWA
Bermuda" means Arjo Wiggins Appleton (Bermuda) Limited, a
company
limited by shares organized under the Companies Act of 1981 of
Bermuda.
"Bank
Consolidated Fixed Charge Coverage Ratio" means, for any
period,
the ratio of (a) Consolidated EBITDA for such period minus the
lesser of (i)
$8.0 million per fiscal quarter for such period and (ii) Capital
Expenditures
for such period to (b) the sum of the aggregate amounts of (i)
scheduled
principal payments on Indebtedness during such period, (ii)
Consolidated
Interest Expense during such period and (iii) repurchases of common
stock of the
Parent Entity pursuant to the ESOP Documentation during such
period.
"Bank
Consolidated Leverage Ratio" means, at any time, the ratio of
(a) Consolidated Total Debt as of the last day of the most recently
completed
fiscal quarter to (b) Consolidated EBITDA for the period of four
consecutive
fiscal quarters ended on such last day.
"Bank
Consolidated First Lien Leverage Ratio" means, at any time, the
ratio of (a) Consolidated Total Debt as of the last day of the most
recently
completed fiscal quarter (excluding the Notes, Senior Unsecured
Notes, the
Subordinated Notes, any Permitted Refinancing Indebtedness and any
other
Indebtedness that is (i) subordinated in right of payment or in
right of Lien
priority to the Obligations under the Credit Agreement in a manner
(x) no less
favorable to the lenders under the Credit Agreement than the
payment
subordination provisions of the Subordinated Notes or Lien
subordination
provisions of the Notes, as applicable, or (y) otherwise acceptable
to the
administrative agent under the Credit Agreement or (ii) otherwise
unsecured) to
(b) Consolidated EBITDA for the period of four consecutive fiscal
quarters ended
on such last day.
"Bank
Indebtedness" means any and all amounts payable under or in
respect of the Credit Agreement and the other Senior Credit
Documents as
amended, restated, supplemented, waived, replaced, restructured,
repaid,
refunded, refinanced or otherwise modified from time to time
(including after
termination of the Credit Agreement), which may be in the form of
bank loans,
debt securities or any other Indebtedness, including principal,
premium (if
any), interest (including interest accruing on or after the filing
of any
petition in bankruptcy or
-3-
<PAGE>
for reorganization relating to the Company whether or not a claim
for
post-filing interest is allowed in such proceedings), fees,
charges, expenses,
reimbursement Obligations, guarantees and all other amounts payable
thereunder
or in respect thereof.
"Bankruptcy
Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Beneficial
Owner" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating
the beneficial
ownership of any particular "person" (as that term is used in
Section 13(d)(3)
of the Exchange Act), such "person" will be deemed to have
beneficial ownership
of all securities that such "person" has the right to acquire by
conversion or
exercise of other securities, whether such right is currently
exercisable or is
exercisable only after the passage of time. The terms "Beneficially
Owns" and
"Beneficially Owned" have a corresponding meaning.
"Bermuda
Company Agreements" means the collective reference to (a) the
Relationship Agreement, (b) the Assignment and Assumption Deed,
dated as of
November 9, 2001, between AWA and AWA Bermuda, (c) the by-laws and
memorandum of
association of AWA Bermuda, (d) the certificate of incorporation
and by-laws of
PDC Capital Corporation, and (e) the Bermuda Security
Agreement.
"Bermuda
Security Agreement" means the Collateral Assignment, dated as
of November 9, 2001 by AWA Bermuda in favor of the Company.
"Board of
Directors" means:
(1)
with respect to a corporation, the board of directors of the
corporation or any committee thereof duly authorized to act on
behalf of such
board;
(2)
with respect to a partnership, the board of directors of the
general partner of the partnership;
(3)
with respect to a limited liability company, the managing
member
or members, any controlling committee of managing members or other
governing
body thereof; and
(4)
with respect to any other Person, the board or committee of
such
Person serving a similar function.
"Business
Day" means any day other than a Legal Holiday.
"Capital
Expenditures" means, for any period, with respect to any
Person, the aggregate of all expenditures by such Person and its
Subsidiaries
for the acquisition or leasing (pursuant to a capital lease) of
fixed or capital
assets or additions to equipment (including replacements,
capitalized repairs
and improvements during such period) that should be capitalized
under GAAP on a
consolidated balance sheet of such Person and its Subsidiaries.
"Capital
Lease Obligation" means, at the time any determination is to
be made, the amount of the liability in respect of a capital lease
that would at
that time be required to be
-4-
<PAGE>
capitalized on a balance sheet prepared in accordance with GAAP,
and the Stated
Maturity thereof shall be the date of the last payment of rent or
any other
amount due under such lease prior to the first date upon which such
lease may be
prepaid by the lessee without payment of a penalty.
"Capital
Stock" means:
(1) in
the case of a corporation, corporate stock;
(2) in
the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents
(however
designated) of corporate stock;
(3) in
the case of a partnership or limited liability company,
partnership interests (whether general or limited) or membership
interests; and
(4)
any other interest or participation that confers on a Person
the
right to receive a share of the profits and losses of, or
distributions of
assets of, the issuing Person, but excluding from all of the
foregoing any debt
securities convertible into Capital Stock, whether or not such debt
securities
include any right of participation with Capital Stock.
"Cash
Equivalents" means:
(1)
United States dollars;
(2)
securities issued or directly and fully guaranteed or insured
by
the United States government or any agency or instrumentality of
the United
States government (provided that the full faith and credit of the
United States
is pledged in support of those securities) having maturities of not
more than
one year from the date of acquisition;
(3)
certificates of deposit and eurodollar time deposits with
maturities of one year or less from the date of acquisition,
bankers'
acceptances with maturities not exceeding one year and overnight
bank deposits,
in each case, with any lender party to the Credit Agreement or with
any domestic
commercial bank having capital and surplus in excess of $500.0
million and a
Thomson Bank Watch Rating of "B" or better;
(4)
repurchase Obligations with a term of not more than seven days
for underlying securities of the types described in clauses (2) and
(3) above
entered into with any financial institution meeting the
qualifications specified
in clause (3) above;
(5)
commercial paper having one of the two highest ratings
obtainable
from Moody's Investors Service, Inc. or Standard & Poor's
Rating Services and,
in each case, maturing within one year after the date of
acquisition; and
(6)
money market funds at least 95% of the assets of which
constitute
Cash Equivalents of the kinds described in clauses (1) through (5)
of this
definition.
"Change of
Control" means the occurrence of any of the following:
-5-
<PAGE>
(1)
the direct or indirect sale, transfer, conveyance or other
Disposition (other than by way of merger or consolidation), in one
or a series
of related transactions, of all or substantially all of the
properties or assets
of the Company and its Subsidiaries taken as a whole to any
"person" (as that
term is used in Section 13(d) of the Exchange Act);
(2)
the adoption of a plan relating to the liquidation or
dissolution
of the Company;
(3)
the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is
that any
"person" (as defined above in clause (1) of this definition)
becomes the
Beneficial Owner, directly or indirectly, of more than 50% of the
Voting Stock
of the Company, measured by voting power rather than number of
shares;
(4)
the first day on which a majority of the members of the Board
of
Directors of the Company and the Parent Entity are not Continuing
Directors;
(5)
the first day on which the Parent Entity ceases to own at least
50% of the outstanding Equity Interests of the Company; or
(6)
the failure of the ESOP to own at least 50% of the Parent
Entity.
Notwithstanding anything to the contrary above, if the Company
converts to a limited liability company, such a conversion of
corporate form
alone shall not be deemed to result in a "Change of Control" for
purposes of
this definition.
"Code" means
the Internal Revenue Code of 1986, as amended (or any
successor thereto).
"Collateral"
means, collectively, all Collateral and Mortgaged
Property, each as defined in the Security Documents.
"Collateral
Agent" means the Trustee in its capacity as Collateral
Agent hereunder and under the Security Documents and any successor
thereto in
such capacity.
"Company"
has meaning set forth in the preamble to this Indenture.
"Consolidated EBITDA" means, for any period, the sum of (i)
Consolidated Net Income for such period plus (ii) without
duplication and to the
extent reflected as a charge in the statement of such Consolidated
Net Income
for such period, the sum of (a) income tax expense, (b) interest
expense,
amortization or writeoff of debt discount and debt issuance costs
and
commissions, discounts and other fees and charges associated with
Indebtedness
(including the Loans under the Credit Agreement), (c) depreciation
and
amortization expense (including, but not limited to, goodwill), (d)
any
extraordinary charges or losses determined in accordance with GAAP,
(e) non-cash
charges from employee compensation deferrals and employer matching
contributions
pursuant to the ESOP Documentation relating to ESOP Stock
Issuances, (f) cash
losses from Asset Sales, (g) cash restructuring charges and/or
non-recurring
cash charges or losses not to exceed $2.0 million in any twelve
month period and
(h) any other non-cash charges, non-cash expenses or non-cash
losses of the
Parent Entity or any of its Subsidiaries (provided,
-6-
<PAGE>
however, that cash payments made in any future period in respect of
such
non-cash charges added back in determining Consolidated EBITDA for
periods
ending after the Issue Date (as with any other non-cash charge,
expense or loss
added to Consolidated Net Income pursuant to this clause (h)) shall
be
subtracted from Consolidated Net Income in calculating Consolidated
EBITDA in
the period when such payments are made) minus (iii) to the extent
included in
the statement of such Consolidated Net Income for such period, the
sum of,
without duplication, (a) interest income, (b) any extraordinary
income or gains
determined in accordance with GAAP, (c) any cancellation-of-debt
income
resulting from repurchases of Indebtedness after the Issue Date,
(d) cash gains
from Asset Sales and (e) any other non-cash income (excluding any
items that
represent the reversal of any accrual of, or cash reserve for,
anticipated cash
charges in any prior period that are described in the parenthetical
to clause
(h) above), all as determined on a consolidated basis.
For the
purposes of calculating Consolidated EBITDA for any period of
four consecutive fiscal quarters (each, a "Reference Period")
pursuant to any
determination of the Bank Consolidated Leverage Ratio or the Bank
Consolidated
First Lien Leverage Ratio, (i) if at any time during such Reference
Period the
Company or any Subsidiary shall have made any Material Disposition
(as defined
below), the Consolidated EBITDA for such Reference Period shall be
reduced by an
amount equal to the Consolidated EBITDA (if positive) attributable
to the
property that is the subject of such Material Disposition for such
Reference
Period or increased by an amount equal to the Consolidated EBITDA
(if negative)
attributable thereto for such Reference Period and (ii) if during
such Reference
Period the Company or any Subsidiary shall have made a Material
Acquisition (as
defined below), Consolidated EBITDA for such Reference Period shall
be
calculated after giving pro forma effect thereto as if such
Material Acquisition
occurred on the first day of such Reference Period. As used in this
definition,
"Material Acquisition" means any acquisition of property or series
of related
acquisitions of property that (a) constitutes assets comprising all
or
substantially all of an operating unit of a business or constitutes
all or
substantially all of the common stock of a Person and (b) involves
the payment
of consideration by the Company and its Subsidiaries in excess of
$5.0 million;
and "Material Disposition" means any Disposition of property or
series of
related Dispositions of property that yields gross proceeds to the
Company or
any of its Subsidiaries in excess of $5.0 million.
"Consolidated Interest Expense" means, for any period, total
cash
interest expense (including that attributable to Capital Lease
Obligations but,
for the avoidance of doubt, in any event excluding any amortization
or write-off
of financing costs) of the Parent Entity and its Subsidiaries for
such period
with respect to all outstanding Indebtedness of the Parent Entity
and its
Subsidiaries (including all commissions, discounts and other fees
and charges
owed with respect to letters of credit and bankers' acceptance
financing and net
costs under Hedging Obligations in respect of interest rates to the
extent such
net costs are allocable to such period in accordance with
GAAP).
"Consolidated Net Income" means, with respect to any specified
Person
for any period, the aggregate of the Net Income of such Person and
its
Restricted Subsidiaries for such period, on a consolidated basis,
determined in
accordance with GAAP; provided that:
(1)
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 will be included only to
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<PAGE>
the extent of the amount of dividends or similar distributions paid
in cash to
the specified Person or a Restricted Subsidiary of the Person;
(2)
the Net Income of any Restricted Subsidiary will be excluded to
the extent that the declaration or payment of dividends or similar
distributions
by that Restricted Subsidiary of that Net Income is not at the date
of
determination permitted without any prior governmental approval
(that has not
been obtained) or, directly or indirectly, by operation of the
terms of its
charter or any agreement, instrument, judgment, decree, order,
statute, rule or
governmental regulation applicable to that Restricted Subsidiary or
its
stockholders;
(3)
the cumulative effect of a change in accounting principles will
be excluded; and
(4)
notwithstanding clause (1) above, the Net Income of any
Unrestricted Subsidiary will be excluded, whether or not
distributed to the
specified Person or one of its Subsidiaries.
Notwithstanding anything to the contrary contained above, to
the
extent that Consolidated Net Income for any period is reduced by
fees, expenses,
costs and/or charges incurred in connection with consents,
amendments,
modifications, waivers, repayments and/or refinancings of
Indebtedness, such
amounts shall be added back for purposes of determining
Consolidated Net Income
for the respective period.
"Consolidated Tangible Assets" means, with respect to the Company
as
of any date, the aggregate of the assets of the Company and its
Restricted
Subsidiaries excluding goodwill, environmental indemnification
receivables,
patents, trade names, trade marks, copyrights, franchises,
experimental expense,
organization expense and any other assets properly classified as
intangible
assets in accordance with GAAP, as of such date on a consolidated
basis,
determined in accordance with GAAP. In the event that information
relating to
Consolidated Tangible Assets is not available as of any date, then
the most
recently available information will be used.
"Consolidated Total Debt" means at any date, the aggregate
principal
amount of all Indebtedness of the Parent Entity and its
Subsidiaries at such
date, as the same would be shown on a consolidated balance sheet of
the Parent
Entity and its consolidated Subsidiaries as at such date in
accordance with
GAAP, but in any event excluding Indebtedness permitted under
clauses (8) and
(11) of Section 4.09(b).
"Continuing
Directors" means, as of any date of determination, any
member of the Board of Directors of the Company or the Parent
Entity, as the
case may be, who:
(1)
was a member of such Board of Directors of such company on the
Issue Date; or
(2)
was nominated for election or elected to such Board of
Directors
in accordance with the Security Holders Agreements, or, if
inapplicable, with
the approval of a majority of the Continuing Directors who were
members of such
Board of Directors at the time of such nomination or election.
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"Corporate
Trust Office of the Trustee" means the address of the
Trustee specified in Section 12.02 hereof or such other address as
to which the
Trustee may give notice to the Company.
"Credit
Agreement" means that certain Credit Agreement, entered into
as of June 5, 2007, as amended as of March 23, 2009, and as further
amended on
or prior to the Issue Date, among the Company, the guarantors and
the lenders
from time to time party thereto and Bank of America, N.A., as
administrative
agent, swing line lender and L/C issuer.
"Credit
Enhancement" shall mean the indemnity claim insurance policy
issued by Commerce and Industry Insurance Company, substantially in
the form of
Schedule 6.1.5.1 to the Fox River AWA Environmental Indemnity
Agreement, issued
on November 9, 2001 and amended effective as of June 11, 2004 in
favor of AWA
Bermuda.
"Credit
Facilities" means, one or more debt facilities (including,
without limitation, the Credit Agreement) or commercial paper
facilities, in
each case with banks or other institutional lenders providing for
revolving
credit loans, term loans, receivables financing (including through
the sale of
receivables to such lenders or to special purpose entities formed
to borrow from
such lenders against such receivables) or letters of credit, in
each case, as
amended, restated, modified, renewed, refunded, replaced (whether
upon or after
termination or otherwise) or refinanced whether by the same lenders
or group of
lenders or any other lender or group of lenders (including by means
of sales of
debt securities to institutional investors) in whole or in part
from time to
time.
"Custodian"
means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.
"Default"
means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Definitive
Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.06
hereof,
substantially in the form of Exhibit A1 hereto except that such
Note shall not
bear the Global Note Legend and shall not have the "Schedule of
Exchanges of
Interests in the Global Note" attached thereto.
"Depositary"
means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section
2.03 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.
"Disposition" means the sale, transfer or other disposition
(including
any sale and leaseback transaction, but excluding the granting of
Liens
permitted by this Indenture and any exercise of remedies in
connection
therewith, leases, licenses, sub-leases, sub-licenses and transfers
pursuant to
condemnation and similar proceedings) of any property by any
Person, including
any such sale, assignment, transfer or other disposal, with or
without recourse,
of any notes or accounts receivable or any rights and claims
associated
therewith. "Dispose" has a corresponding meaning.
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<PAGE>
"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 4.07 hereof, and any Capital Stock
that would
constitute Disqualified Stock solely because the holders of that
Capital Stock
have the right to require the Parent Entity or the Parent Entity
has the
obligation to repurchase such Capital Stock pursuant to the terms
of the ESOP
will not constitute "Disqualified Stock." The amount of
Disqualified Stock
deemed to be outstanding at any time for purposes of this Indenture
will be the
maximum amount that the Company and its Restricted Subsidiaries may
become
obligated to pay upon the maturity of, or pursuant to any mandatory
redemption
provisions of, such Disqualified Stock, exclusive of accrued
dividends.
"Environmental Indemnity Agreements" means the Fox River AWA
Environmental Indemnity Agreement and the Fox River PDC
Environmental Indemnity
Agreement.
"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 issuance or sale of Equity Interests
(other than Disqualified Stock or stock issued or sold to employees
or directors
of the Company) of the Company.
"ESOP" means
the Appleton Papers Retirement Savings and Employee Stock
Ownership Plan.
"ESOP
Component" has the meaning set forth in the ESOP.
"ESOP
Documentation" means the collective reference to (a) the ESOP,
(b) the Trust and (c) all amendments, supplements or other
modifications to any
of the foregoing, all schedules, exhibits and annexes thereto and
all agreements
affecting the terms thereof or entered into in connection
therewith.
"ESOP Stock
Issuances" means with respect to any period, any issuance
of common stock by the Parent Entity to the ESOP during such
period.
"Exchange
Act" means the Securities Exchange Act of 1934, as amended.
"Excluded
Restricted Subsidiaries" means PDC Capital Corporation,
provided that it shall become a Guarantor under the circumstances
described in
Section 4.19 hereof, and
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<PAGE>
any Foreign Subsidiary (a) in respect of which the guaranteeing by
such
Subsidiary of the Obligations, would, in the good faith judgment of
the Company,
result in adverse tax consequences to the Company or (b) that,
together with its
Subsidiaries, has, on any date of determination, (i) total assets
constituting
less than five percent (5%) of the consolidated total assets of the
Parent
Entity, the Company and their respective Subsidiaries and (ii) for
the twelve
month period most recently ended, revenues constituting less than
five percent
(5%) of the consolidated revenues of the Parent Entity, the Company
and their
respective Subsidiaries for such period, in each case based upon
the financial
statements most recently delivered to the Trustee pursuant to the
terms of this
Indenture.
"Existing
Indebtedness" means any and all Indebtedness of the Parent
Entity, the Company and its Subsidiaries (other than Indebtedness
under the
Credit Agreement) in existence on the Issue Date, until such
amounts are repaid.
"Fair Market
Value" means the value that would be paid by a willing
buyer to an unaffiliated willing seller in a transaction not
involving distress
or necessity of either party, determined in good faith by the Board
of Directors
of the Company (unless otherwise provided in this Indenture).
"First
Priority After-Acquired Property" means any property (other
than the Collateral as of the Issue Date) of the Company or any
Guarantor that
secures any Secured Bank Indebtedness.
"First
Priority Lien Obligations" means (i) all Secured Bank
Indebtedness, (ii) all other Obligations (not constituting
Indebtedness) of the
Company and its Subsidiaries under the agreements governing Secured
Bank
Indebtedness and (iii) all other Obligations of the Company or any
of its
Subsidiaries in respect of Hedging Obligations or Obligations in
respect of cash
management services in each case owing to a Person that is a holder
of
Indebtedness described in clause (i) or Obligations described in
clause (ii) or
an Affiliate of such holder at the time of entry into such Hedging
Obligations
or Obligations in respect of cash management services.
"Fixed
Charges" means, with respect to any specified Person for any
period, the sum, without duplication, of:
(1)
the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued,
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 of the effect
of all
payments made or received pursuant to Hedging Obligations in
respect of interest
rates; plus
(2)
the consolidated interest expense of such Person and its
Restricted Subsidiaries that was capitalized during such period;
plus
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<PAGE>
(3)
any interest accruing 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
(4)
the product of (a) all dividends, whether paid or accrued and
whether or not in cash, on any series of preferred stock of such
Person or any
of its Restricted Subsidiaries, other than dividends on Equity
Interests payable
solely in Equity Interests of the Company (other than Disqualified
Stock) or to
the Company or a Restricted Subsidiary of the Company, times (b) a
fraction, the
numerator of which is one and the denominator of which is one minus
the then
current combined federal, state and local statutory tax rate of
such Person,
expressed as a decimal, in each case, determined on a consolidated
basis in
accordance with GAAP.
Notwithstanding anything to the contrary contained in this
definition,
to the extent Fixed Charges for any period would otherwise include
any
amortization of fees or expenses paid to obtain consents,
modifications or
waivers to outstanding Indebtedness or the documentation relating
thereto, then
the amortization of such amounts shall be deducted (and excluded)
from Fixed
Charges for such period.
"Foreign
Subsidiary" means a Subsidiary that is organized under the
laws of a jurisdiction other than the United States or any state
thereof or the
District of Columbia.
"Fox River
AWA Environmental Indemnity Agreement" means the Fox River
AWA Environmental Indemnity Agreement by and among the Parent
Entity, New
Appleton, LLC, the Company and AWA dated as of November 9, 2001, as
amended,
modified or supplemented from time to time.
"Fox River
Indemnity Arrangements" means the collective reference to
the Fox River PDC Environmental Indemnity Agreement, the Fox River
AWA
Environmental Indemnity Agreement, the Credit Enhancement, the Fox
River
Security Agreement and the Bermuda Company Agreements.
"Fox River
PDC Environmental Indemnity Agreement" means the Fox River
PDC Environmental Indemnity Agreement by and among the Parent
Entity, New
Appleton, LLC and the Company dated as of November 9, 2001, as
amended, modified
or supplemented from time to time.
"Fox River
Security Agreement" means the Security Agreement,
substantially in the form attached as Exhibit B to the Fox River
AWA
Environmental Indemnity Agreement, by and among the Company, the
Parent Entity,
New Appleton, LLC and AWA.
"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)(2)
hereof, which is required to be placed on all Global Notes issued
under this
Indenture.
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<PAGE>
"Global
Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes deposited
with or on
behalf of and registered in the name of the Depository or its
nominee,
substantially in the form of Exhibit A1 hereto and that bears the
Global Note
Legend and that has the "Schedule of Exchanges of Interests in the
Global Note"
attached thereto, issued in accordance with Section 2.01,
2.06(b)(3), 2.06(b)(4)
or 2.06(d)(2) hereof.
"Government
Securities" means direct Obligations of, or Obligations
guaranteed by (or certificates representing an ownership interest
in such
Obligations), the United States of America (including any agency
or
instrumentality thereof) for the payment of which the full faith
and credit of
the United States of America is pledged and which are not callable
or redeemable
at the issuer's option.
"Guarantee"
means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business,
direct or
indirect, in any manner including, without limitation, by way of a
pledge of
assets or through letters of credit or reimbursement agreements in
respect
thereof, of all or any part of any Indebtedness (whether arising by
virtue of
partnership arrangements, or by agreements to keep-well, to
purchase assets,
goods, securities or services, to take or pay or to maintain
financial statement
conditions or otherwise).
"Guarantors"
means each of:
(1)
the Parent Entity;
(2)
the Company's direct and indirect Restricted Subsidiaries,
other
than the Excluded Restricted Subsidiaries, existing on the Issue
Date; and
(3)
any other Subsidiary of the Company that executes a
supplemental
indenture evidencing its Note Guarantee in accordance with the
provisions of
this Indenture;
and their respective successors and assigns, in each case, until
the Note
Guarantee of such Person has been released in accordance with the
provisions of
this Indenture.
"Hedging
Obligations" means, with respect to any specified Person, the
Obligations of such Person under:
(1)
interest rate swap agreements (whether from fixed to floating
or
from floating to fixed), interest rate cap agreements and interest
rate collar
agreements;
(2)
other agreements or arrangements designed to manage interest
rates or interest rate risk; and
(3)
other agreements or arrangements designed to protect such
Person
against fluctuations in currency exchange rates or commodity
prices.
"Holder"
means the Person in whose name a Note is registered on the
Registrar's books.
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<PAGE>
"Immaterial
Subsidiary" means, as of any date, any Restricted
Subsidiary whose total assets, as of that date, are less than $2.0
million and
whose total revenues for the most recent fiscal year do not exceed
$2.0 million;
provided that a Restricted Subsidiary will not be considered to be
an Immaterial
Subsidiary if it, directly or indirectly, guarantees or otherwise
provides
direct credit support for any Indebtedness of the Company.
"Indebtedness" with respect to any specified Person, means,
without
duplication, any indebtedness of such Person (excluding accrued
expenses and
trade payables), whether or not contingent:
(1) in
respect of borrowed money;
(2)
evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement agreements in respect
thereof);
(3) in
respect of banker's acceptances;
(4)
representing Capital Lease Obligations or Attributable Debt in
respect of sale and leaseback transactions;
(5)
representing the balance deferred and unpaid of the purchase
price of any property or services due more than six months after
such property
is acquired or such services are completed; or
(6)
representing net Obligations under any Hedging Obligations,
if and to the extent any of the preceding items (other than letters
of credit,
Attributable Debt 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 the specified Person of any Indebtedness of any other
Person.
"Indenture"
means this Indenture, as amended, supplemented or
otherwise modified from time to time.
"Indirect
Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"Initial
Notes" means the $161,766,000 aggregate principal amount of
Notes initially issued under this Indenture and any Notes issued in
replacement
or substitution therefor in accordance with the provisions of this
Indenture.
"Intercreditor Agreement" means, as the context may require, (i)
the
intercreditor agreement, dated as of the Issue Date, among Bank of
America,
N.A., as agent under the Senior Credit Documents, the Trustee, as
Collateral
Agent, the Company and each Guarantor and (ii) any other
intercreditor agreement
entered into in connection with Credit Facilities not otherwise
prohibited by
this Indenture substantially in the form of the intercreditor
agreement referred
to in
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<PAGE>
clause (i) of this definition, entered into by the Company or any
Guarantor
following the termination of the intercreditor agreement referred
to in clause
(i) of this definition, in each case, as it may be amended,
restated,
supplemented and/or otherwise modified from time to time.
"Investments" means, with respect to any Person, all direct or
indirect investments by such Person in other Persons (including
Affiliates) in
the forms of loans (including Guarantees or other Obligations but
excluding
receivables owing to the Company or any Restricted Subsidiary
created in the
ordinary course of business), advances or capital contributions
(excluding
commission, travel and similar advances to directors, 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 are or would be classified as investments on a
balance sheet
prepared in accordance with GAAP. If the Company or any Subsidiary
of the
Company sells or otherwise disposes of any Equity Interests of any
direct or
indirect Subsidiary of the Company such that, after giving effect
to any such
Disposition, such Person is no longer a Subsidiary of the Company,
the Company
will be deemed to have made an Investment on the date of any such
Disposition
equal to the Fair Market Value of the Company's Investments in such
Subsidiary
that were not sold or disposed of in an amount determined as
provided in the
final paragraph of Section 4.07 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
Investments held
by the acquired Person in such third Person in an amount determined
as provided
in the final paragraph of Section 4.07 hereof. Except as otherwise
provided in
this Indenture, the amount of an Investment will be determined at
the time the
Investment is made and without giving effect to subsequent changes
in value.
"Issue Date"
means the date on which the Initial Notes are issued
pursuant to this Indenture.
"Legal
Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are
authorized by
law, regulation or executive order to remain closed.
"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.
"Loans under
the Credit Agreement" means extensions of credit by
lenders to the Company under the commitments and credit extensions
pursuant to
the terms of the Credit Agreement, as amended, in the form of a
term B loan, a
revolving credit loan or a swing line loan.
"Make-Whole
Price" with respect to any Notes to be redeemed, means an
amount equal to the sum of the present values of the remaining
scheduled
payments of interest on such
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<PAGE>
Notes (not including any portion of such payments of interest
accrued as of the
redemption date), in each case discounted back to the redemption
date, computed
on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day
months) using a discount rate equal to the Treasury Rate plus 50
basis points
plus accrued and unpaid interest on such Notes to the redemption
date.
"Mortgages"
means the mortgages, deeds of trust or similar instruments
entered into from time to time creating security interests in the
Collateral as
contemplated by this Indenture, including, without limitation,
those certain
Second-Lien Open-End Mortgage & Security Agreements, dated as
of the Issue Date,
made by the Company and the Guarantors, as the case may be, in
favor of the
Collateral Agent.
"Net Income"
means, with respect to any specified Person, the net
income (loss) of such Person, determined in accordance with GAAP
and before any
reduction in respect of preferred stock dividends, excluding,
however:
(1)
any gain or loss, together with any related provision for taxes
on such gain or 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
(2)
any extraordinary gain or loss, together with any related
provision for taxes on such extraordinary gain or loss.
"Net
Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries or the Parent Entity
in respect of
any Asset Sale (including, without limitation, any cash received
upon the
Disposition of any non-cash consideration received in any Asset
Sale), net of
(i) 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 of the Asset Sale, (ii)
payments
required to be made to holders of minority interests in Restricted
Subsidiaries
as a result of such Asset Sale, (iii) taxes paid or payable as a
result of the
Asset Sale, in each case, after taking into account any available
tax credits or
deductions and any tax sharing arrangements, (iv) 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 (v) any reserve for
adjustment in
respect of the sale price of such asset or assets established in
accordance with
GAAP.
"Non-Recourse Debt" means Indebtedness:
(1) as
to which neither the Company nor any of its Restricted
Subsidiaries (a) provides credit support of any kind (including any
undertaking,
agreement or instrument that would constitute Indebtedness other
than the pledge
of stock of an Unrestricted Subsidiary), (b) is directly or
indirectly liable as
a guarantor or otherwise, or (c) constitutes the lender;
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<PAGE>
(2) no
default with respect to which (including any rights that the
holders of the Indebtedness may have to take enforcement action
against an
Unrestricted Subsidiary) would permit upon notice, lapse of time or
both any
holder of any other Indebtedness (other than the Notes) of the
Company or any of
its Restricted Subsidiaries to declare a default on such other
Indebtedness or
cause the payment of the Indebtedness to be accelerated or payable
prior to its
Stated Maturity; and
(3) as
to which the lenders have been notified in writing that they
will not have any recourse to the stock or assets of the Company or
any of its
Restricted Subsidiaries.
"Non-U.S.
Person" means a Person who is not a U.S. Person.
"Note
Guarantee" means the Guarantee by each Guarantor of the
Company's Obligations under this Indenture and the Notes, pursuant
to the
provisions of Article X hereof.
"Notes" has
the meaning assigned to it in the preamble to this
Indenture. The Initial Notes, the PIK Notes, if any, and the
Additional Notes,
if any, shall be treated as a single class for all purposes under
this
Indenture, and unless the context otherwise requires, all
references to the
Notes shall include the Initial Notes, any PIK Notes and any
Additional Notes.
"Obligations" means any principal, interest (including, without
limitation, with respect to interest on the Notes, interest
accruing after the
commencement of any bankruptcy, insolvency, or similar proceeding,
whether or
not a claim for post-filing or post-petition interest is allowed in
such
proceeding), penalties, fees, indemnifications, reimbursements,
damages and
other liabilities payable under the documentation governing any
Indebtedness.
"Officer"
means, with respect to any Person, the chairman of the
board, chief executive officer, chief financial officer, president,
any
executive vice president, senior vice president or vice president,
the treasurer
or the secretary of such Person.
"Officers'
Certificate" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the
principal
executive officer, the principal financial officer, the treasurer
or the
principal accounting officer of the Company, that meets the
requirements of
Section 12.05 hereof.
"Opinion of
Counsel" means an opinion from legal counsel 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, any
Subsidiary of the Company or the Trustee.
"Parent
Entity" means Paperweight Development Corp. and any future
direct or indirect parent of the Company.
"Pari Passu
Indebtedness" means:
(1)
the Notes and any Indebtedness which ranks equally in right of
payment to the Notes; and
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<PAGE>
(2)
with respect to any Guarantor, its Note Guarantee and any
Indebtedness which ranks equally in right
of payment to such Guarantor's
Note Guarantee.
"Participant" means, with respect to the Depositary, a Person who
has
an account with the Depositary.
"PDC Capital
Corporation" means PDC Capital Corporation, a Delaware
corporation.
"Permitted
Business" means any of the lines of business conducted by
the Company and its Subsidiaries on the Issue Date and any
businesses similar,
related, incidental or ancillary thereto or that constitutes a
reasonable
extension or expansion thereof.
"Permitted
Investments" means:
(1)
any Investment in the Company or in a Restricted Subsidiary of
the Company;
(2)
any Investment in Cash Equivalents;
(3)
any Investment existing on the Issue Date;
(4)
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 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;
(5)
any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance
with Section 4.10 hereof;
(6)
any acquisition of assets or Capital Stock solely in exchange
for
the issuance of Equity Interests (other than Disqualified Stock) of
the Company;
(7)
any Investments received in compromise or resolution of
(A) Obligations of trade creditors or customers that were incurred
in the
ordinary course of business of the Company or any of its
Restricted
Subsidiaries, including pursuant to any plan of reorganization or
similar
arrangement upon the bankruptcy or insolvency of any trade creditor
or customer;
or (B) litigation, arbitration or other disputes with Persons who
are not
Affiliates;
(8)
Investments represented by Hedging Obligations;
(9)
loans or advances to employees made in the ordinary course of
business of the Company or the Restricted Subsidiary of the Company
in an
aggregate principal amount not to exceed $2.0 million at any one
time
outstanding;
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<PAGE>
(10)
repurchases of the Notes;
(11)
extensions of trade credit (including accounts receivable) by
the
Company and its Restricted Subsidiaries on commercially reasonable
terms in the
ordinary course of business; and
(12) other
Investments 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 (12) that are at the time
outstanding
not to exceed the greater of (x) $25.0 million and (y) 3.0% of
Consolidated
Tangible Assets.
"Permitted
Liens" means:
(1)
Liens on assets of the Company or any Restricted Subsidiary
securing Indebtedness and other Obligations under Credit Facilities
incurred
under clause (1) of the definition of "Permitted Debt" (provided
that the total
principal amount of First Priority Lien Obligations (including
amounts secured
under clause (6)(B) of this definition of "Permitted Liens," but
excluding
Hedging Obligations and Obligations in respect of cash management
services, in
each case, specified in the definition of "First Priority Lien
Obligations")
shall not exceed $463.125 million) and/or securing Hedging
Obligations and
Obligations in respect of cash management services, in each case,
specified in
the definition of "First Priority Lien Obligations";
(2)
Liens in favor of the Company or the Guarantors;
(3)
Liens on property of a Person existing at the time such Person
is
merged with or into or consolidated with the Company or any
Subsidiary of the
Company; provided that such Liens were in existence prior to the
contemplation
of such merger or consolidation and do not extend to any assets
other than those
of the Person merged into or consolidated with the Company or the
Subsidiary;
(4)
Liens on property (including Capital Stock) existing at the
time
of acquisition of the property by the Company or any Subsidiary of
the Company,
provided that such Liens were in existence prior to, such
acquisition, and not
incurred in contemplation of, such acquisition;
(5)
Liens 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;
(6)
Liens to secure Indebtedness (including Capital Lease
Obligations) (A) permitted by clause (4) of Section 4.09(b) hereof
covering only
the assets acquired with or financed by such Indebtedness, and (B)
incurred
pursuant to Section 4.09(a) hereof, or clause (l) of Section
4.09(b) hereof
and/or Hedging Obligations to the extent such Lien is incurred
pursuant to this
clause (6)(B) as designated by the Company; provided, however, that
(a) the
total principal amount of the First Priority Lien Obligations
(including amounts
secured under clause (1) of this definition of "Permitted Liens,"
but excluding
Hedging Obligations and
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<PAGE>
Obligations in respect of cash management services, in each case,
specified in
the definition of "First Priority Lien Obligations") shall not
exceed $463.125
million, (b) any other Indebtedness secured under this clause
(6)(B) shall (i)
constitute Notes issued after the Issue Date (and Note Guarantees
in respect
thereof) or (ii) be secured by Liens pari passu with the Liens
securing the
Notes and the Note Guarantees in an aggregate principal amount, in
the case of
(i) and (ii) taken together, not to exceed $50.0 million plus, in
the case of
(i), the amount of any PIK Notes issued in respect thereof under
Section 4.21
hereof;
(7)
Liens existing on the Issue Date and any extensions or renewals
thereof otherwise permitted by the terms of this Indenture;
(8)
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
conducted; provided
that any reserve or other appropriate provision as is required in
conformity
with GAAP has been made therefor;
(9)
Liens imposed by law, such as carriers', warehousemen's,
landlord's and mechanics' Liens, in each case, incurred in the
ordinary course
of business or good faith deposits in connection with bids,
tenders, contracts
or leases to which the Company or any Restricted Subsidiary is a
party;
(10) survey
exceptions, easements or reservations of, or rights of
others for, licenses, rights-of-way, sewers, electric lines,
telegraph and
telephone lines and other similar purposes, or zoning or other
restrictions as
to the use of real property that were not incurred in connection
with
Indebtedness and that do not in the aggregate materially adversely
affect the
value of said properties or materially impair their use in the
operation of the
business of such Person;
(11) Liens
created for the benefit of (or to secure) the Initial Notes
plus the amount of any PIK Notes issued in respect thereof under
Section 4.21
hereof (or the Note Guarantees in respect thereof);
(12) Liens
to secure any Permitted Refinancing Indebtedness permitted
to be incurred under this Indenture; provided, however, that:
(A)
the new Lien shall be limited to all or part of the same
property
and assets that secured or, under the
written agreements pursuant to which
the original Lien arose, could secure the
original Lien (plus improvements
and accessions to, such property or
proceeds or distributions thereof); and
(B)
the Indebtedness secured by the new Lien is not increased to
any
amount greater than the sum of (x) the
outstanding principal amount or, if
greater, committed amount, of the
Permitted Refinancing Indebtedness and
(y) an amount necessary to pay any fees
and expenses, including premiums,
related to such renewal, refunding,
refinancing, replacement, defeasance or
discharge;
(13) Liens
on rights of "Recovery" in favor of AWA pursuant to and as
defined in the Fox River Indemnity Arrangements;
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<PAGE>
(14) Liens
incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and
other types of social security;
(15)
licenses of intellectual property in the ordinary course of
business;
(16) Liens
arising out of judgments, decrees, orders or awards in
respect of which the Company shall in good faith be prosecuting on
appeal or
proceeding for review, which appeal or proceeding shall not have
been finally
terminated or if the period within such appeal or proceeding may be
initiated
shall not have expired;
(17) Liens
on Capital Stock of an Unrestricted Subsidiary that secure
Indebtedness or other Obligations of such Unrestricted
Subsidiary;
(18) leases,
subleases, licenses or sublicenses to third parties
entered into in the ordinary course of business;
(19) any
interest or title of a lessor under any lease entered into by
the Company or any of its Subsidiaries in the ordinary course of
its business
and covering only the assets so leased;
(20) Liens
in favor of customs or revenue authorities arising as a
matter of law to secure payment of customs duties in connection
with the
importation of goods so long as such Lien covers only the goods
being imported;
and
(21) Liens
on assets of the Company or any Restricted Subsidiary
securing Indebtedness up to 5% of Consolidated Tangible Assets that
was
permitted by the terms of this Indenture to be incurred.
"Permitted
Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange
for, or the net
proceeds of which are used to renew, refund, refinance, replace,
defease or
discharge other Indebtedness of the Company or any of its
Restricted
Subsidiaries (other than intercompany Indebtedness); provided
that:
(1)
the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal
amount (or
accreted value, if applicable) of the Indebtedness renewed,
refunded,
refinanced, replaced, defeased or discharged (plus all accrued
interest on the
Indebtedness and the amount of all fees and expenses, including
premiums
incurred in connection therewith);
(2)
such Permitted Refinancing Indebtedness has a final maturity
date
later than the final maturity date of, and has a Weighted Average
Life to
Maturity equal to or greater than the Weighted Average Life to
Maturity of, the
Indebtedness being renewed, refunded, refinanced, replaced,
defeased or
discharged;
(3) if
the Indebtedness being refinanced, renewed, replaced,
defeased, discharged or refunded is subordinated in right of
payment to the
Notes, such Permitted Refinancing Indebtedness has a final maturity
date later
than the final maturity date of, and is
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<PAGE>
subordinated in right of payment to, the Notes on terms at least as
favorable,
taken as a whole, to the Holders of Notes as those contained in
the
documentation governing the Indebtedness being renewed, refunded,
refinanced,
replaced, defeased or discharged; and
(4)
such Permitted Refinancing Indebtedness is incurred either by
the
Company or by the Restricted Subsidiary who is the obligor on the
Indebtedness
being renewed, refunded, refinanced, replaced, defeased or
discharged.
"Person"
means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization,
limited liability company or government or other entity.
"Private
Placement Legend" means the legend set forth in Section
2.06(g)(1) hereof to be placed on all Notes issued under this
Indenture except
where otherwise permitted by the provisions of this Indenture.
"QIB" means
a "qualified institutional buyer" as defined in Rule 144A.
"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 applicable.
"Regulation
S Permanent Global Note" means a permanent Global Note in
the form of Exhibit A1 hereto bearing the Global Note Legend and
the Private
Placement Legend and deposited with or on behalf of and registered
in the name
of the Depositary or its nominee, issued in a denomination equal to
the
outstanding principal amount 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 A1 hereto bearing the Global Note Legend, the
Private
Placement Legend and the Regulation S Temporary Global Note 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.
"Regulation
S Temporary Global Note Legend" means the legend set forth
in Section 2.06(g)(3) hereof.
"Relationship Agreement" means the Agreement dated as of November
9,
2001 and amended effective as of the Issue Date by and among AWA,
Arjo Wiggins
(Bermuda) Holdings Limited, the Parent Entity, PDC Capital
Corporation and AWA
Bermuda.
"Responsible
Officer" when used with respect to the Trustee, means any
officer within the Corporate Trust Office 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 such officer's
knowledge of
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<PAGE>
and familiarity with the particular subject and who shall have
direct
responsibility for the administration of this Indenture.
"Restricted
Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted
Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted
Investment" means an Investment other than a Permitted
Investment.
"Restricted
Period" means the 40-day distribution compliance period as
defined in Regulation S.
"Restricted
Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"Rule 144"
means Rule 144 promulgated under the Securities Act.
"Rule 144A"
means Rule 144A promulgated under the Securities Act.
"Rule 903"
means Rule 903 promulgated under the Securities Act.
"Rule 904"
means Rule 904 promulgated under the Securities Act.
"SEC" means
the U.S. Securities and Exchange Commission.
"Secured
Bank Indebtedness" means any Bank Indebtedness that is
secured by a Permitted Lien incurred or deemed incurred pursuant to
clause (1)
and (6)(B) of the definition of "Permitted Liens."
"Securities
Act" means the Securities Act of 1933, as amended.
"Security
Agreement" means the Second-Lien Collateral Agreement, dated
as of the Issue Date, made by the Company and the Guarantors in
favor of the
Collateral Agent, as amended, supplemented or otherwise modified
from time to
time.
"Security
Documents" means the security agreements (including the
Security Agreement), Mortgages, pledge agreements, collateral
assignments,
account control agreements and related agreements, as amended,
supplemented,
restated, renewed, refunded, replaced, restructured, repaid,
refinanced or
otherwise modified from time to time, creating the security
interests in the
Collateral as contemplated by this Indenture.
"Security
Holders Agreements" means, collectively, the Security
Holders Agreement by and between the Parent Entity and the Trust
dated as of
November 9, 2001 and the Security Holders Agreement by and between
the Company
and the Trust dated as of November 9, 2001.
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<PAGE>
"Senior
Credit Documents" means the collective reference to the Credit
Agreement, any notes issued pursuant thereto and the guarantees
thereof, and the
collateral documents relating thereto, as amended, supplemented,
restated,
renewed, refunded, replaced, restructured, repaid, refinanced or
otherwise
modified from time to time.
"Senior
Unsecured Notes" means the 8.125% senior unsecured notes of
the Company due 2011.
"Significant
Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of
Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is
in effect on
the Issue Date.
"Stated
Maturity" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which the
payment of
interest or principal was scheduled to be paid in the documentation
governing
such Indebtedness as of the Issue Date, and will not include any
contingent
Obligations to repay, redeem or repurchase any such interest or
principal prior
to the date originally scheduled for the payment thereof.
"Subordinated Notes" means the 9.75% senior subordinated notes of
the
Company due 2014.
"Subsidiary"
means, with respect to any specified Person:
(1)
any corporation, association or other business entity of which
more than 50% of the total voting power of shares of Capital Stock
entitled
(without regard to the occurrence of any contingency and after
giving effect to
any voting agreement or stockholders' agreement that effectively
transfers
voting power) to vote in the election of directors, managers or
trustees of the
corporation, association or other business entity is at the time
owned or
controlled, directly or indirectly, by that Person or one or more
of the other
Subsidiaries of that Person (or a combination thereof); and
(2)
any partnership (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 that Person or one or more
Subsidiaries
of that Person (or any combination thereof).
"TIA" means
the Trust Indenture Act of 1939, as amended (15 U.S.C.
Sections 77aaa-77bbbb).
"Treasury
Rate" means, as of any redemption date, the yield to
maturity as of such redemption date of United States Treasury
securities with a
constant maturity (as compiled and published in the most recent
Federal Reserve
Statistical Release H.15 (519) that has become publicly available
at least two
Business Days prior to the redemption date (or, if such Statistical
Release is
no longer published, any publicly available source of similar
market data)) most
nearly equal to the period from the redemption date to December 15,
2015;
provided, however, that if the period from the redemption date to
December 15,
2015, is less than one year, the weekly average yield on actually
traded United
States Treasury securities adjusted to a constant maturity of one
year will be
used.
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<PAGE>
"Trust"
means the Appleton Papers Inc. Employee Stock Ownership Trust
adopted July 19, 2001, as amended, effective June 20, 2004.
"Trustee"
means the party named as such in the preamble to this
Indenture until a successor replaces it in accordance with the
applicable
provisions of this Indenture and thereafter means the successor
serving
hereunder.
"Unrestricted Definitive Note" means a Definitive Note that does
not
bear and is not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a Global Note that does not bear
and
is not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary of the Company
designated by the Board of Directors of the Company as an
Unrestricted
Subsidiary pursuant to a resolution of the Board of Directors of
the Company,
but only to the extent that such Subsidiary:
(1)
has no Indebtedness other than Non-Recourse Debt;
(2)
except as permitted by Section 4.11 hereof, is not party to any
agreement, contract, arrangement or understanding with the Company
or any
Restricted Subsidiary of the Company unless the terms of any such
agreement,
contract, arrangement or understanding are no less favorable to the
Company or
such Restricted Subsidiary, taken as a whole, than those that might
be obtained
at the time from Persons who are not Affiliates of the Company;
(3) 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
(4)
has not guaranteed or otherwise directly or indirectly provided
credit support for any Indebtedness of the Company or any of its
Restricted
Subsidiaries.
"U.S.
Person" means a U.S. Person as defined in Rule 902(k)
promulgated under the Securities Act.
"Voting
Stock" of any specified Person as of any date means the
Capital Stock of such Person that is at the time entitled to vote
in the
election of the Board of Directors of such Person.
"Weighted
Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by
dividing:
(1)
the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund, serial
maturity or
other required payments of principal, including payment at final
maturity, in
respect of the Indebtedness, by (b) the number of years (calculated
to the
nearest one-twelfth) that will elapse between such date and the
making of such
payment; by
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<PAGE>
(2)
the then outstanding principal amount of such Indebtedness.
Section 1.02
Other Definitions.
Term
Defined in Section
-----------------------------------
-----------------------------------
"Affiliate
Transaction"
4.11
"Article 9
Collateral"
13.04
"Asset Sale
Offer"
3.09
"Calculation
Time"
4.09
"Change of Control
Offer"
4.15
"Change of Control
Payment"
4.15
"Change of Control Payment
Date"
4.15
"Covenant
Defeasance"
8.03
"DTC"
2.03
"Equivalent
Property"
4.24
"Event of
Default"
6.01
"Excess
Proceeds"
4.10
"Hazardous
Materials"
7.07
"incur"
4.09
"Legal
Defeasance"
8.02
"Material
Acquisition"
1.01
"Material
Disposition"
1.01
"Offer
Amount"
3.09
"Offer
Period"
3.09
"Paying
Agent"
2.03
"Payment
Default"
6.01
"Payment in
Kind"
4.21
"Permitted
Debt"
4.09
"PIK
Notes"
4.21
"PIK Payment
Date"
4.21
"PIK Record Date"
4.21
"Purchase
Date"
3.09
"Reference
Period"
1.01
"Registrar"
2.03
"Restricted
Payments"
4.07
Section 1.03
Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is
incorporated by reference in and made a part of this Indenture.
The
following TIA terms used in this Indenture have the following
meanings:
"indenture
securities" means the Notes;
"indenture
security Holder" means a Holder of a Note;
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<PAGE>
"indenture
to be qualified" means this Indenture;
"indenture
trustee" or "institutional trustee" means the Trustee; and
"obligor" on
the Notes and the Note Guarantees means the Company and
the Guarantors, respectively, and any successor obligor upon the
Notes and the
Note Guarantees, respectively.
All other
terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule
under the TIA
have the meanings so assigned to them.
Section 1.04
Rules of Construction. Unless the context otherwise
requires:
(1) a
term has the meaning assigned to it;
(2) an
accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3)
"or" is not exclusive;
(4)
words in the singular include the plural, and in the plural
include the singular;
(5)
"will" shall be interpreted to express a command;
(6)
the term "including" is not limiting;
(7)
provisions apply to successive events and transactions;
and
(8)
references to sections of or rules under the Securities Act
will
be deemed to include substitute, replacement of successor sections
or rules
adopted by the SEC from time to time.
ARTICLE II
The Notes
Section 2.01
Form and Dating.
(a)
General. The Notes and the Trustee's certificate of
authentication will be substantially in the form of Exhibits A1 and
A2 hereto.
The Notes may have notations, legends or endorsements required by
law, stock
exchange rule or usage; provided, that any such notations, legends
or
endorsements are in a form acceptable to the Company. Each Note
will be dated
the date of its authentication. The Notes shall be in denominations
of $1,000
and integral multiples of $1,000 in excess thereof.
The terms
and provisions contained in the Notes will constitute, and
are hereby expressly made, a part of this Indenture and the
Company, the
Guarantors and the Trustee, by
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their execution and delivery of this Indenture, expressly agree to
such terms
and provisions and to be bound thereby. However, to the extent any
provision of
any Note conflicts with the express provisions of this Indenture,
the provisions
of this Indenture shall govern and be controlling.
(b)
Global Notes. Notes issued in global form will be substantially
in the form of Exhibit A1 hereto (including the Global Note Legend
thereon and
the "Schedule of Exchanges of Interests in the Global Note"
attached thereto).
Each Global Note will represent such of the outstanding Notes as
will be
specified therein and each shall provide that it represents the
aggregate
principal amount of outstanding Notes from time to time endorsed
thereon and
that the aggregate principal amount of outstanding Notes
represented thereby may
from time to time be reduced or increased, as appropriate, to
reflect exchanges
and redemptions. Any endorsement of a Global Note to reflect the
amount of any
increase or decrease in the aggregate principal amount of
outstanding Notes
represented thereby will be made by the Trustee or the Custodian,
at the
direction of the Trustee, in accordance with instructions given by
the Holder
thereof as required by Section 2.06 hereof.
(c)
Temporary Global Notes. Notes offered and sold in reliance on
Regulation S will be issued initially in the form of a Regulation S
Temporary
Global Note, which will be deposited on behalf of the purchasers of
the Notes
represented thereby with the Trustee, at its New York 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 will be terminated upon
the receipt
by the Trustee of:
(1) a
written certificate from the Depositary or the Company
certifying that it has 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 bearing a Private Placement
Legend, all as contemplated by
Section 2.06(b) hereof); and
(2) an
Officers' Certificate from the Company.
Following
the termination of the Restricted Period, beneficial
interests in the Regulation S Temporary Global Note will be
exchanged for
beneficial interests in the Regulation S Permanent Global Note
pursuant to the
Applicable Procedures. Simultaneously with the authentication of
the Regulation
S Permanent Global Note, the Trustee will cancel the Regulation S
Temporary
Global Note. The aggregate principal amount of the Regulation S
Temporary Global
Note and the Regulation S Permanent Global Note 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. At least one Officer must
sign the Notes for the Company by manual or facsimile
signature.
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If an
Officer whose signature is on a Note no longer holds that
office
at the time a Note is authenticated, the Note will nevertheless be
valid.
A Note will
not be valid until authenticated by the manual signature
of the Trustee. The signature will be conclusive evidence that the
Note has been
authenticated under this Indenture.
The Trustee
will, upon receipt of an Authentication Order,
authenticate Notes for original issue that may be validly issued
under this
Indenture, including any Additional Notes. Such Authentication
Order shall
specify the principal amount of the Notes to be authenticated, the
date on which
the issue of the Notes is to be authenticated, the number of
separate Notes
certificates to be authenticated, the registered Holder of each
such Note and
delivery instructions, and, in the case of an issuance of
Additional Notes after
the Issue Date, shall certify that such issuance is in compliance
with Sections
4.09 and 4.12 hereof. The aggregate principal amount of Notes
outstanding at any
time may not exceed the aggregate principal amount of Notes
authorized for
issuance by the Company pursuant to one or more Authentication
Orders, except as
provided in Section 2.07 hereof.
The Trustee
may appoint an authenticating agent acceptable to the
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 will maintain an
office or agency where Notes may be presented for registration of
transfer or
for exchange ("Registrar") and an office or agency where Notes may
be presented
for payment ("Paying Agent"). The Registrar will keep a register of
the Notes
and of their transfer and exchange. The 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 will notify the Trustee in
writing of the name
and address of any Agent not a party to this Indenture. If the
Company fails to
appoint or maintain another entity as Registrar or Paying Agent,
the Trustee
shall act as such. The Company or any of its Subsidiaries may act
as Paying
Agent or Registrar.
The Company
initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
The Company
initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with respect to the Global
Notes.
Section 2.04
Paying Agent to Hold Money in Trust. The Company will
require each Paying Agent other than the Trustee to agree in
writing that the
Paying Agent will hold in trust for the benefit of Holders or the
Trustee all
money held by the Paying Agent for the payment of principal,
premium, if any, or
interest on the Notes, and will notify the Trustee of any default
by the Company
in making any such payment. While any such default continues,
the
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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 of all amounts
that it is
obligated to pay, the Paying Agent (if other than the Company or a
Subsidiary)
will have no further liability for the money. If the Company or a
Subsidiary
acts as Paying Agent, it will segregate and hold in a separate
trust fund for
the benefit of the Holders all money held by it as Paying Agent.
Upon any
bankruptcy or reorganization proceedings relating to the Company,
the Trustee
will serve as Paying Agent for the Notes.
Section 2.05
Holder Lists. The Trustee will preserve in as current a
form as is reasonably practicable the most recent list available to
it of the
names and addresses of all Holders and shall otherwise comply with
TIA Section
312(a). If the Trustee is not the Registrar, the Company will
furnish to the
Trustee at least two Business Days before each interest payment
date and at such
other times as the Trustee may request in writing, a list in such
form and as of
such date as the Trustee may reasonably require of the names and
addresses of
the Holders of Notes and the Company shall otherwise comply with
TIA
Section 312(a).
Section 2.06
Transfer and Exchange.
(a)
Transfer and Exchange of Global Notes. A Global Note may not be
transferred except as a whole by the Depositary to a nominee of
the
Depositary, by a nominee of the Depositary to the Depositary or to
another
nominee of the Depositary, or by the Depositary or any such nominee
to a
successor Depositary or a nominee of such successor Depositary. All
Global Notes
will be exchanged by the Company for Definitive Notes if:
(1)
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
has ceased to be a clearing agency
registered under the Exchange Act and,
in either case, a successor Depositary is
not appointed by the Company
within 120 days after the date of such
notice from the Depositary;
(2)
the Company, at its option, notifies the Trustee in writing
that
it elects to cause the issuance of
Definitive Notes; provided that in no
event shall the Regulation S Temporary
Global Note be exchanged by the
Company for Definitive Notes prior to (A)
the expiration of the Restricted
Period and (B) the receipt by the
Registrar of any certificates required
pursuant to Rule 903(b)(3)(ii)(B) under
the Securities Act; or
(3)
there has occurred and is continuing a Default or Event of
Default with respect to the Notes.
Upon the
occurrence of any of the preceding events in (1), (2) or (3)
above, Definitive Notes shall be issued in such names as the
Depositary shall
instruct the Trustee. Global Notes also may be exchanged or
replaced, in whole
or in part, as provided in Sections 2.07 and 2.10 hereof. Every
Note
authenticated and delivered in exchange for, or in lieu of, a
Global Note or any
portion thereof, pursuant to this Section 2.06 or Section 2.07 or
2.10 hereof,
shall be authenticated and delivered in the form of, and shall be,
a Global
Note. A Global Note may not be exchanged for another Note other
than as provided
in this
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Section 2.06(a); provided, however, that 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
will be effected through the Depositary, in accordance with the
provisions of
this Indenture and the Applicable Procedures. None of the Company,
the Trustee,
the Paying Agent, nor any agent of the Company shall have any
responsibility or
liability for any aspect of the records relating to or payments
made on account
of beneficial ownership interests in a Global Note, or for
maintaining,
supervising or reviewing any records relating to such beneficial
ownership
interests. Beneficial interests in the Restricted Global Notes will
be subject
to restrictions on transfer comparable to those set forth herein to
the extent
required by the Securities Act. Transfers of beneficial interests
in the Global
Notes also will require compliance with either subparagraph (1) or
(2) below, as
applicable, as well as one or more of the other following
subparagraphs, as
applicable:
(1)
Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted
Global Note may be transferred to
Persons who take delivery thereof in the
form of a beneficial interest in
the same Restricted Global Note in
accordance with the transfer
restrictions set forth in the Private
Placement Legend; provided, however,
that prior to the expiration of the
Restricted Period, transfers of
beneficial interests in the Regulation S
Temporary Global Note may not be
made to a U.S. Person or for the account
or benefit of a U.S. Person.
Beneficial interests in any Unrestricted
Global Note may be transferred to
Persons who take delivery thereof in the
form of a beneficial interest in
an Unrestricted Global Note. No written
orders or instructions shall be
required to be delivered to the Registrar
to effect the transfers described
in this Section 2.06(b)(1).
(2)
All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all
transfers and exchanges of beneficial
interests that are not subject to Section
2.06(b)(1) above, the transferor
of such beneficial interest must deliver
to the Registrar either:
(A) both:
(i) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or
cause
to be credited a beneficial interest in another Global Note in
an
amount equal to the beneficial interest to be transferred or
exchanged; and
(ii) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant
account to be credited with such increase; or
(B) both:
(i) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the
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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 the immediately preceding clause (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 (A) the expiration
of
the Restricted Period and (B) 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(i)
hereof.
(3)
Transfer of Beneficial Interests to Another Restricted Global
Note. A beneficial interest in any
Restricted Global Note may be
transferred to a Person who takes delivery
thereof in the form of a
beneficial interest in another Restricted
Global Note if the transfer
complies with the requirements of Section
2.06(b)(2) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial
interest in the 144A Global Note, then the transferor must
deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form of a
beneficial
interest in the Regulation S Temporary Global Note or the
Regulation S
Permanent Global Note, then the transferor must deliver a
certificate
in the form of Exhibit B hereto, including the
certifications in item (2) thereof.
(4)
Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in an
Unrestricted Global Note. A
beneficial interest in any Restricted
Global Note may be exchanged by any
holder thereof for a beneficial interest
in an Unrestricted Global Note or
transferred to a Person who takes delivery
thereof in the form of a
beneficial interest in an Unrestricted
Global Note if the exchange or
transfer complies with the requirements of
Section 2.06(b)(2) above and the
Registrar receives the following:
(A) if
the holder of such beneficial interest in a Restricted
Global Note
proposes to exchange such beneficial interest for a
beneficial
interest in an Unrestricted Global Note, a certificate from
such holder
in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(B) 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
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certificate
from such holder in the form of Exhibit B hereto,
including
the certifications in item (4) thereof;
and, if the Registrar so requests or if
the Applicable Procedures so
require, an Opinion of Counsel in form
reasonably acceptable to the
Registrar to the effect that such exchange
or transfer is in compliance
with the Securities Act and that the
restrictions on transfer contained
herein and in the Private Placement Legend
are no longer required in
order to maintain compliance with the
Securities Act.
If any such
transfer is effected pursuant to this clause (4) at a time
when an Unrestricted Global Note has not yet been issued, the
Company shall
issue and, upon receipt of an Authentication Order in accordance
with Section
2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global
Notes in an aggregate principal amount equal to the aggregate
principal amount
of beneficial interests transferred pursuant to this clause
(4).
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.
(1)
Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If any holder of a
beneficial interest in a Restricted
Global Note proposes to exchange such
beneficial interest for a Restricted
Definitive Note or to transfer such
beneficial interest to a Person who
takes delivery thereof in the form of a
Restricted Definitive Note, then,
upon receipt by the Registrar of the
following documentation:
(A) if the holder of such beneficial interest in a
Restricted
Global Note
proposes to exchange such beneficial interest for a
Restricted
Definitive Note, a certificate from such holder in the form
of Exhibit C
hereto, including the certifications in item (2)(a)
thereof;
(B) if such beneficial interest is being transferred to a QIB
in
accordance
with Rule 144A, a certificate to the effect set forth in
Exhibit B
hereto, including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S.
Person in an offshore transaction in accordance with Rule 903
or Rule 904,
a certificate to the effect set forth in Exhibit B
hereto,
including the certifications in item (2) thereof;
(D) if such beneficial interest
is being transferred pursuant to
an exemption
from the registration requirements of the Securities Act
in
accordance with Rule 144, a certificate to the effect set forth
in
Exhibit B
hereto, including the certifications in item (3)(a) thereof;
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(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(i) hereof,
and the Company shall execute and the
Trustee shall authenticate and
deliver to the Person designated in the
instructions a Definitive Note in
the appropriate principal amount. Any
Definitive Note issued in exchange
for a beneficial interest in a Restricted
Global Note pursuant to this
Section 2.06(c) shall be registered in
such name or names and in such
authorized denomination or denominations
as the holder of such beneficial
interest shall instruct the Registrar
through instructions from the
Depositary and the Participant or Indirect
Participant. The Trustee shall
deliver such Definitive Notes to the
Persons in whose names such Notes are
so registered. Any Definitive Note issued
in exchange for a beneficial
interest in a Restricted Global Note
pursuant to this Section 2.06(c)(1)
shall bear the Private Placement Legend
and shall be subject to all
restrictions on transfer contained
therein.
(2)
Beneficial Interests in Regulation S Temporary Global Note
to
Definitive Notes. Notwithstanding Sections
2.06(c)(1)(A) and (C) hereof, a
beneficial interest in the Regulation S
Temporary Global Note may not be
exchanged for a Definitive Note or
transferred to a Person who takes
delivery thereof in the form of a
Definitive Note prior to (A) the
expiration of the Restricted Period and
(B) the receipt by the Registrar of
any certificates required pursuant to Rule
903(b)(3)(ii)(B) under the
Securities Act, except in the case of a
transfer pursuant to an exemption
from the registration requirements of the
Securities Act other than
Rule 903 or Rule 904.
(3)
Beneficial Interests in Restricted Global Notes to Unrestricted
Definitive Notes. A holder of a beneficial
interest in a Restricted Global
Note may exchange such beneficial interest
for an Unrestricted Definitive
Note or may transfer such beneficial
interest to a Person who takes
delivery thereof in the form of an
Unrestricted Definitive Note only if the
Registrar receives the following:
(A) if the holder of such beneficial interest in a
Restricted
Global Note
proposes to exchange such beneficial interest for an
Unrestricted
Definitive Note, a certificate from such holder in the
form of
Exhibit C hereto, including the certifications in item (1)(b)
thereof;
or
(B) if the holder of such beneficial interest in a
Restricted
Global Note
proposes to transfer such beneficial interest to a Person
who shall
take delivery thereof in the form of an Unrestricted
Definitive
Note, a certificate from such holder in the form of Exhibit
B hereto,
including the certifications in item (4) thereof;
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and, if the Registrar so requests or if
the Applicable Procedures so
require, an Opinion of Counsel in form
reasonably acceptable to the
Registrar to the effect that such exchange
or transfer is in compliance
with the Securities Act and that the
restrictions on transfer contained
herein and in the Private Placement Legend
are no longer required in order
to maintain compliance with the Securities
Act.
(4)
Beneficial Interests in Unrestricted Global Notes to
Unrestricted
Definitive Notes. If any holder of a
beneficial interest in an Unrestricted
Global Note proposes to exchange such
beneficial interest for a Definitive
Note or to transfer such beneficial
interest to a Person who takes delivery
thereof in the form of a Definitive Note,
then, upon satisfaction of the
conditions set forth in Section 2.06(b)(2)
hereof, the Trustee will cause
the aggregate principal amount of the
applicable Unrestricted Global Note
to be reduced accordingly pursuant to
Section 2.06(i) hereof, and the
Company will execute and the Trustee will
authenticate and deliver to the
Person designated in the instructions a
Definitive Note in the appropriate
principal amount. Any Definitive Note
issued in exchange for a beneficial
interest pursuant to this Section
2.06(c)(4) will be registered in such
name or names and in such authorized
denomination or denominations as the
holder of such beneficial interest
requests through instructions to the
Registrar from or through the Depositary
and the Participant or Indirect
Participant. The Trustee will deliver such
Definitive Notes to the Persons
in whose names such Notes are so
registered. Any Definitive Note issued in
exchange for a beneficial interest
pursuant to this Section 2.06(c)(4) will
not bear the Private Placement Legend.
(d)
Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(1)
Restricted Definitive Notes to Beneficial Interests in
Restricted
Global Notes. If any Holder of a
Restricted Definitive Note proposes to
exchange such Note for a beneficial
interest in a Restricted Global Note or
to transfer such Restricted Definitive
Notes to a Person who takes delivery
thereof in the form of a beneficial
interest in a Restricted Global Note,
then, upon receipt by the Registrar of the
following documentation:
(A) if the Holder of such Restricted Definitive Note proposes
to
exchange
such Note for a beneficial interest in a Restricted Global
Note, a
certificate from such Holder in the form of Exhibit C hereto,
including
the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred
to a
QIB in
accordance with Rule 144A, a certificate to the effect set
forth in
Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such Restricted Definitive Note is being transferred
to a
Non-U.S.
Person in an offshore transaction in accordance with Rule 903
or Rule 904,
a certificate to the effect set forth in Exhibit B
hereto,
including the certifications in item (2) thereof;
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(D) if such Restricted Definitive Note is being
transferred
pursuant to
an exemption from the registration requirements of the
Securities
Act in accordance with Rule 144, a certificate to the
effect set
forth in Exhibit B hereto, including the certifications in
item (3)(a)
thereof;
(E) if such Restricted Definitive Note is being transferred
to
the Company
or any of its Subsidiaries, a certificate to the effect
set forth in
Exhibit B hereto, including the certifications in item
(3)(b)
thereof; or
(F) if such
Restricted Definitive Note is being transferred
pursuant to
an effective registration statement under the Securities
Act, a
certificate to the effect set forth in Exhibit B hereto,
including
the certifications in item (3)(c) thereof,
the Trustee will cancel the Restricted
Definitive Note, increase or cause
to be increased the aggregate principal
amount of, in the case of clause
(A) above, the appropriate Restricted
Global Note, in the case of clause
(B) above, the 144A Global Note and in the
case of clause (C) above, the
Regulation S Global Note.
(2)
Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a
Restricted Definitive Note may
exchange such Note for a beneficial
interest in an Unrestricted Global Note
or transfer such Restricted Definitive
Note to a Person who takes delivery
thereof in the form of a beneficial
interest in an Unrestricted Global Note
only if the Registrar receives the
following:
(A) if the Holder of such Definitive Notes proposes to
exchange
such Notes
for a beneficial interest in the Unrestricted Global Note,
a
certificate from such Holder in the form of Exhibit C hereto,
including
the certifications in item (1)(c) thereof; or
(B) if the Holder of such Definitive Notes proposes to
transfer
such Notes
to a Person who shall take delivery thereof in the form of
a beneficial
interest in the Unrestricted Global Note, a certificate
from such
Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this
clause (2), if the Registrar so
requests or if the Applicable Procedures
so require, an Opinion of Counsel
in form reasonably acceptable to the
Registrar to the effect that such
exchange or transfer is in compliance with
the Securities Act and that the
restrictions on transfer contained herein
and in the Private Placement
Legend are no longer required in order to
maintain compliance with the
Securities Act.
Upon
satisfaction of the conditions of any of the subparagraphs in
this Section 2.06(d)(2), the Trustee will cancel the Definitive
Notes and
increase or cause to be increased the aggregate principal amount of
the
Unrestricted Global Note.
(3)
Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an
Unrestricted Definitive Note may
exchange such Note for
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a beneficial interest in an Unrestricted
Global Note or transfer such
Definitive Notes to a Person who takes
delivery thereof in the form of a
beneficial interest in an Unrestricted
Global Note at any time. Upon
receipt of a request for such an exchange
or transfer, the Trustee will
cancel the applicable Unrestricted
Definitive Note and increase or cause to
be increased the aggregate principal
amount of one of the Unrestricted
Global Notes.
If any such
exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to clause (2) above or
this clause (3)
at a time when an Unrestricted Global Note has not yet been issued,
the Company
will issue and, upon receipt of an Authentication Order in
accordance with
Section 2.02 hereof, the Trustee will authenticate one or more
Unrestricted
Global Notes in an aggregate principal amount equal to the
principal amount of
Definitive Notes so transferred.
(e)
Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's
compliance with
the provisions of this Section 2.06(e), the Registrar will register
the transfer
or exchange of Definitive Notes. Prior to such registration of
transfer or
exchange, the requesting Holder must present or surrender to the
Registrar the
Definitive Notes duly endorsed or accompanied by a written
instruction of
transfer in form satisfactory to the Registrar duly executed by
such Holder or
by its attorney, duly authorized in writing. In addition, the
requesting Holder
must provide any additional certifications, documents and
information, as
applicable, required pursuant to the following provisions of this
Section
2.06(e).
(1)
Restricted Definitive Notes to Restricted Definitive Notes. Any
Restricted Definitive Note may be
transferred to and registered in the name
of Persons who take delivery thereof in
the form of a Restricted Definitive
Note if the Registrar receives the
following:
(A) if the transfer will be made pursuant to Rule 144A, then
the
transferor
must deliver a certificate in the form of Exhibit B hereto,
including
the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or
Rule 904,
then the transferor must deliver a certificate in the form
of Exhibit B
hereto, including the certifications in item (2) thereof;
and
(C) if the transfer will be made pursuant to any other
exemption
from the
registration requirements of the Securities Act, then the
transferor
must deliver a certificate in the form of Exhibit B hereto,
including
the certifications, certificates and Opinion of Counsel
required by
item (3) thereof, if applicable.
(2)
Restricted Definitive Notes to Unrestricted Definitive Notes.
Any
Restricted Definitive Note may be
exchanged by the Holder thereof for an
Unrestricted Definitive Note or
transferred to a Person or Persons who take
delivery thereof in the form of an
Unrestricted Definitive Note if the
Registrar receives the following:
(A) if the Holder of such Restricted Definitive Notes
proposes
to exchange
such Notes for an Unrestricted Definitive Note, a
certificate
from such
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Holder in
the form of Exhibit C hereto, including the certifications
in item
(1)(d) thereof; or
(B) if the Holder of such Restricted Definitive Notes
proposes
to transfer
such Notes to a Person who shall take delivery thereof in
the form of
an Unrestricted Definitive Note, a certificate from such
Holder in
the form of Exhibit B hereto, including the certifications
in item (4)
thereof;
and, if the Registrar so requests, an
Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect
that such exchange or transfer is
in compliance with the Securities Act and
that the restrictions on transfer
contained herein and in the Private
Placement Legend are no longer required
in order to maintain compliance with the
Securities Act.
(3)
Unrestricted Definitive Notes to Unrestricted Definitive Notes.
A Holder of Unrestricted Definitive Notes
may transfer such Notes to a
Person who takes delivery thereof in the
form of an Unrestricted Definitive
Note. Upon receipt of a request to
register such a transfer, the Registrar
shall register the Unrestricted Definitive
Notes pursuant to the
instructions from the Holder thereof.
(f)
Limitations on Availability of Definitive Notes. Notes issued
in
definitive form will be substantially in the form of Exhibit A1
hereto (but
without the Global Note Legend thereon and without the "Schedule of
Exchanges of
Interests in the Global Note" attached thereto); provided that AI
Definitive
Notes will be substantially in the form of Exhibit A2 hereto.
Notwithstanding
any other provision of this Section 2.06, (i) no beneficial
interests in a
Global Note may be exchanged for Definitive Notes unless one or
more of the
conditions set forth in clauses (1) through (3) of Section 2.06(a)
is applicable
and (ii) unless and until the Global Notes are exchanged for
Definitive Notes
pursuant to this Section 2.06, no Definitive Notes may be
transferred or
exchanged other than upon exchange thereof for a beneficial
interest in a Global
Note.
(g)
Legends. The following legends will appear on the face of all
Global Notes and Definitive Notes issued under this Indenture
unless
specifically stated otherwise in the applicable provisions of this
Indenture.
(1)
Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each
Global
Note and
each Definitive Note (and all Notes issued in exchange
therefor or
substitution thereof) shall bear the legend in
substantially the following form:
"THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF
IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT
SUBJECT TO, REGISTRATION.
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BY ITS
ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER: (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB") OR (B) IT
IS NOT A U.S.
PERSON, IS NOT ACQUIRING THIS SECURITY FOR THE ACCOUNT OR BENEFIT
OF A U.S.
PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN
COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT [INSERT FOR AI
DEFINITIVE NOTES: OR
(C) IT IS AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501 OF
REGULATION D
PROMULGATED UNDER THE SECURITIES ACT)], (2) AGREES THAT IT WILL NOT
RESELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY
SUBSIDIARY
THEREOF, (B) TO A PERSON WHOM THE HOLDER REASONABLY BELIEVES IS A
QIB PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN COMPLIANCE WITH
RULE 144A
UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN
OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(D) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT
(IF AVAILABLE) OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH APPLICABLE
STATE SECURITIES
LAWS, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THIS SECURITY
OR AN INTEREST HEREIN IS TRANSFERRED (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE
(2)(D) OR 2(E) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND.
AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER
THE SECURITIES ACT."
(B) Notwithstanding the foregoing, any Global
Note or Definitive
Note issued
pursuant to subparagraphs (b)(4), (c)(3), (c)(4), (d)(2),
(d)(3),
(e)(2) or (e)(3) of this Section 2.06 (and all Notes issued in
exchange
therefor or substitution thereof) will not bear the Private
Placement
Legend.
(2) Global
Note Legend. Each Global Note will bear a legend in
substantially the following form:
"THIS GLOBAL
NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON
UNDER ANY
CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS
GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a)
OF THE
INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION
PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS
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GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE
PRIOR WRITTEN
CONSENT OF THE COMPANY.
UNLESS AND
UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW
YORK) ("DTC"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER
NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED
BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
(3)
Regulation S Temporary Global Note Legend. The Regulation S
Temporary Global Note will bear a legend
in substantially the following
form:
"THE RIGHTS
ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
CERTIFICATED NOTES, ARE
AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE
HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL
BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON."
(h)
Applicable Procedures for Removal of Legends.
(1)
After one year has elapsed following (A) the Issue Date or (B)
if
the Company has issued any Additional
Notes with the same terms and the
same CUSIP number as the Notes pursuant to
the Indenture within one year
following the date of original issuance of
the Notes, the date of original
issuance of such Additional Notes,
Restricted Definitive Notes and
beneficial interests in Restricted Global
Notes may be exchanged for
beneficial interests in an Unrestricted
Global Note. Any Restricted
Definitive Note or Restricted Global Note
(or security issued in exchange
or substitution therefor) as to which such
restrictions on transfer shall
have expired in accordance with their
terms may, upon surrender of such
Restricted Definitive Note or Restricted
Global Note for exchange to the
Registrar in accordance with the
provisions of this Article II, be
exchanged for a new Note or Notes, of like
tenor and aggregate principal
amount, which shall not bear the Private
Placement Legend. To accomplish
the exchange of beneficial interests in
any Restricted Global Note for
beneficial interests in an Unrestricted
Global
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Note following the expiration referred to
above, the Company may, without
requiring any action or consent by the
Holder of such Restricted Global
Note:
(A) instruct the Trustee in writing to remove the Private
Placement
Legend from the Notes, and upon such instruction the Private
Placement
Legend shall be deemed removed from any Notes without
further
action on the part of Holders;
(B) notify the Holders that the Private Placement Legend
has
been removed
or deemed removed; and
(C) instruct the Depositary to change the CUSIP number for
the
Notes to the
unrestricted CUSIP number for the Notes;
provided that, if the Trustee so requests,
the Company will deliver an
Opinion of Counsel in form reasonably
acceptable to the Trustee to the
effect that such exchange is in compliance
with the Securities Act and that
the restrictions on transfer contained
herein and in the Private Placement
Legend are no longer required in order to
maintain compliance with the
Securities Act.
(2)
Notwithstanding any provision of this Section 2.06(h) to the
contrary, in the event that Rule 144 is
amended to change the one-year
holding period thereunder (or the
corresponding period under any successor
rule), (i) each reference in this Section
2.06(h) to "one year" shall be
deemed for all purposes hereof to be
references to such changed period, and
(ii) all corresponding references in the
Notes shall be deemed for all
purposes hereof to be references to such
changed period, provided that such
changes shall not become effective if they
are otherwise prohibited by, or
would otherwise cause a violation of, the
then-applicable federal
securities laws. This Section 2.06(h)(2)
shall apply to successive
amendments to Rule 144 (or any successor
rule) changing the holding period
thereunder.
(i)
Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been
exchanged for
Definitive Notes or a particular Global Note has been redeemed,
repurchased or
canceled in whole and not in part, each such Global Note will be
returned to or
retained and canceled by the Trustee in accordance with Section
2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in
a Global Note
is exchanged for or transferred to a Person who will take delivery
thereof in
the form of a beneficial interest in another Global Note or for
Definitive
Notes, the principal amount of Notes represented by such Global
Note will be
reduced accordingly and an endorsement will be made on such Global
Note by the
Trustee or by the Depositary at the direction of the Trustee to
reflect such
reduction; and if the beneficial interest is being exchanged for or
transferred
to a Person who will take delivery thereof in the form of a
beneficial interest
in another Global Note, such other Global Note will be increased
accordingly and
an endorsement will be made on such Global Note by the Trustee or
by the
Depositary at the direction of the Trustee to reflect such
increase.
(j)
General Provisions Relating to Transfers and Exchanges.
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(1) To
permit registrations of transfers and exchanges, the Company
will execute and the Trustee will authenticate Global Notes and
Definitive Notes
upon receipt of an Authentication Order in accordance with Section
2.02 hereof
or at the Registrar's request.
(2) No
service charge will be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for
any
registration of transfer or exchange, but the Company may require
payment of a
sum sufficient to cover any transfer tax or similar governmental
charge payable
in connection therewith (other than any such transfer taxes or
similar
governmental charge payable upon exchange or transfer pursuant to
Sections 2.10,
3.06, 3.09, 4.10, 4.15 and 9.05 hereof).
(3)
The Registrar will not be required to register the transfer of
or
exchange of any Note selected for redemption in whole or in part,
except the
unredeemed portion of any Note being redeemed in part.
(4)
All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes will be
the valid obligations of the Company, evidencing the same debt, and
entitled to
the same benefits under this Indenture, as the Global Notes or
Definitive Notes
surrendered upon such registration of transfer or exchange.
(5)
Neither the Registrar nor the Company will be required:
(A) to issue, to register the transfer of or to exchange
any
Notes during
a period beginning at the opening of business 15 days
before the
day of any selection of Notes for redemption under
Section 3.02
hereof and ending at the close of business on the day of
selection;
(B) to register the transfer of or to exchange any Note
selected
for
redemption in whole or in part, except the unredeemed portion
of
any Note
being redeemed in part; or
(C) to register the transfer of or to exchange a Note between
a
record date
and the next succeeding interest payment date.
(6)
Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Company may deem and treat
the Person
in whose name any Note is registered as the absolute owner of such
Note for the
purpose of receiving payment of principal of and interest on such
Notes and for
all other purposes, and none of the Trustee, any Agent or the
Company shall be
affected by notice to the contrary.
(7)
The Trustee will authenticate Global Notes and Definitive Notes
in accordance with the provisions of Section 2.02 hereof.
(8)
All certifications, certificates and Opinions of Counsel
required
to be submitted to the Registrar pursuant to this Section 2.06 to
effect a
registration of transfer or exchange may be submitted by facsimile
or email,
with originals thereof to be delivered to the Registrar thereafter
in a timely
manner.
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Section 2.07
Replacement Notes. If any mutilated Note is surrendered
to the Trustee or the Company and the Trustee receives evidence to
its
satisfaction of the destruction, loss or theft of any Note, the
Company will
issue and the Trustee, upon receipt of an Authentication Order,
will
authenticate a replacement Note if the Trustee's requirements are
met. If
required by the Trustee or the Company, an indemnity bond must be
supplied by
the Holder that is sufficient in the judgment of the Trustee and
the Company to
protect the Company, the Trustee, any Agent and any authenticating
agent from
any loss or liability that any of them may suffer if a Note is
replaced. The
Company may charge for its expenses in replacing a Note.
Every
replacement Note is a contractual obligation of the Company and
will be entitled to all of the benefits of this Indenture equally
and
proportionately with all other Notes duly issued hereunder.
Section 2.08
Outstanding Notes. The Notes outstanding at any time are
all the Notes authenticated by the Trustee except for those
canceled by it,
those delivered to it for cancellation, those reductions in the
interest in a
Global Note effected by the Trustee in accordance with the
provisions hereof,
and those described in this Section 2.08 as not outstanding. Except
as set forth
in Section 2.09 hereof, a Note does not cease to be outstanding
because the
Company or an Affiliate of the Company holds the Note; however,
Notes held by
the Company or a Subsidiary of the Company shall not be deemed to
be outstanding
for purposes of Section 3.07(a) hereof.
If a Note is
replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless a Responsible Officer of the Trustee receives
proof
satisfactory to it that the replaced Note is held by a protected
purchaser.
If the
principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases
to accrue.
If the
Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity
date, money
sufficient to pay Notes payable on that date, then on and after
that date such
Notes will be deemed to be no longer outstanding and will cease to
accrue
interest.
Section 2.09
Treasury Notes. In determining whether the Holders of the
required principal amount of Notes have concurred in any direction,
waiver or
consent, Notes owned by the Company or any Guarantor, or by any
Person directly
or indirectly controlling or controlled by or under direct or
indirect common
control with the Company or any Guarantor, will be considered as
though not
outstanding, except that for the purposes of determining whether
the Trustee
will be protected in relying on any such direction, waiver or
consent, only
Notes that a Responsible Officer of the Trustee knows are so owned
will be so
disregarded.
Section 2.10
Temporary Notes. Until certificates representing Notes
are ready for delivery, the Company may prepare and the Trustee,
upon receipt of
an Authentication Order, will authenticate temporary Notes.
Temporary Notes will
be substantially in the form of certificated Notes but may have
variations that
the Company considers appropriate for temporary Notes and as may be
reasonably
acceptable to the Trustee. Without unreasonable delay, the
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Company will prepare and the Trustee will authenticate definitive
Notes in
exchange for temporary Notes.
Holders of
temporary Notes will be entitled to all of the benefits of
this Indenture.
Section 2.11
Cancellation. The Company at any time may deliver Notes
to the Trustee for cancellation. The Registrar and Paying Agent
will forward to
the Trustee any Notes surrendered to them for registration of
transfer, exchange
or payment. The Trustee and no one else will cancel all Notes
surrendered for
registration of transfer, exchange, payment, replacement or
cancellation and
will destroy canceled Notes (subject to the record retention
requirement of the
Exchange Act). Certification of the destruction of all canceled
Notes will be
delivered to the Company. The Company may not issue new Notes to
replace Notes
that it has paid or that have been delivered to the Trustee for
cancellation.
Section 2.12
Defaulted Interest. If the Company defaults in a payment
of interest on the Notes, it will pay the defaulted interest in any
lawful
manner plus, to the extent lawful, interest payable on the
defaulted interest,
to the Persons who are Holders on a subsequent special record date,
in each case
at the rate provided in the Notes and in Section 4.01 hereof. The
Company will
notify the Trustee in writing of the amount of defaulted interest
proposed to be
paid on each Note and the date of the proposed payment. The Company
will fix or
cause to be fixed each such special record date and payment date;
provided that
no such special record date may be less than 10 days prior to the
related
payment date for such defaulted interest. At least 15 days before
the special
record date, the Company (or, upon the written request of the
Company, the
Trustee in the name and at the expense of the Company) will mail or
cause to be
mailed to Holders a notice that states the special record date, the
related
payment date and the amount of such interest to be paid.
Section 2.13
Issuance of Additional Notes. The Company shall be
entitled, from time to time, subject to its compliance with
Sections 4.09 and
4.12 hereof, without consent of the Holders, to issue Additional
Notes under
this Indenture with identical terms as the Initial Notes other than
with respect
to (i) the date of issuance, (ii) the issue price, (iii) the amount
of interest
payable on the first interest payment date and (iv) any adjustments
in order to
conform to and ensure compliance with the Securities Act (or other
applicable
securities laws). The Initial Notes and any Additional Notes shall
be treated as
a single class for all purposes under this Indenture.
With respect
to any Additional Notes, the Company shall set forth in
an Officers' Certificate pursuant to a resolution of the Board of
Directors of
the Company, copies of which shall be delivered to the Trustee, the
following
information:
(1)
the aggregate principal amount of such Additional Notes to be
authenticated and delivered pursuant to
this Indenture; and
(2)
the issue price, the issue date and the CUSIP number of such
Additional Notes and the date on which
interest on such Additional Notes
shall begin to accrue.
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ARTICLE III
Redemption and Prepayment
Section 3.01
Notices to Trustee. If the Company elects to redeem Notes
pursuant to the optional redemption provisions of Section 3.07
hereof, it must
furnish to the Trustee, at least 30 days but not more than 60 days
before a
redemption date, an Officers' Certificate setting forth:
(1)
the clause of this Indenture pursuant to which the redemption
shall occur;
(2)
the redemption date;
(3)
the principal amount of Notes to be redeemed; and
(4)
the redemption price.
Section 3.02
Selection of Notes to Be Redeemed or Purchased. If less
than all of the Notes are to be redeemed or purchased in an offer
to purchase at
any time, the Trustee will select Notes for redemption or purchase
on a pro rata
basis except:
(1) if
the Notes are listed on any national securities exchange, in
compliance with the requirements of the
principal national securities
exchange on which the Notes are listed;
or
(2) if
otherwise required by law.
In the event
of partial redemption, the particular Notes to be
redeemed or purchased will be selected, unless otherwise provided
herein, not
less than 30 nor more than 60 days prior to the redemption or
purchase date by
the Trustee from the outstanding Notes not previously called for
redemption or
purchase.
The Trustee
will promptly notify the Company in writing of the Notes
selected for redemption or purchase and, in the case of any Note
selected for
partial redemption or purchase, the principal amount thereof to be
redeemed or
purchased. Notes and portions of Notes selected will be in amounts
of $1,000 or
whole multiples of $1,000; except that if all of the Notes of a
Holder are to be
redeemed or purchased, the entire outstanding amount of Notes held
by such
Holder, even if not a multiple of $1,000, shall be redeemed or
purchased. Except
as provided in the preceding sentence, provisions of this Indenture
that apply
to Notes called for redemption or purchase also apply to portions
of Notes
called for redemption or purchase.
Section 3.03
Notice of Redemption. Subject to the provisions of
Section 3.09 hereof, at least 30 days but not more than 60 days
before a
redemption date, the Company will mail or cause to be mailed, by
first class
mail, a notice of redemption to each Holder whose Notes are to be
redeemed at
its registered address, except that redemption notices may be
mailed more than
60 days prior to a redemption date if the notice is issued in
connection with a
defeasance of the Notes or a satisfaction and discharge of this
Indenture
pursuant to Articles VIII or XI hereof.
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The notice
will identify the Notes to be redeemed and will state:
(1)
the redemption date;
(2)
the redemption price;
(3) if
any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
redemption date
upon surrender of such Note, a new Note or Notes in principal
amount equal to
the unredeemed portion will be issued upon cancellation of the
original Note;
(4)
the name and address of the Paying Agent;
(5)
that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price and the CUSIP numbers
for such
Notes;
(6)
that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue
on and after
the redemption date;
(7)
the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being
redeemed; and
(8)
that no representation is made as to the correctness or
accuracy
of the CUSIP number, if any, listed in such notice or printed on
the Notes.
At the
Company's request, the Trustee will give the notice of
redemption in the Company's name and at its expense; provided,
however, that the
Company has delivered to the Trustee, at least 45 days prior to the
redemption
date, an Officers' Certificate requesting that the Trustee give
such notice,
which shall include a form of the notice setting forth the
information to be
stated in such notice as provided in the preceding paragraph.
Section 3.04
Effect of Notice of Redemption. Once notice of redemption
is mailed in accordance with Section 3.03 hereof, Notes called for
redemption
become irrevocably due and payable on the redemption date at the
redemption
price. A notice of redemption may not be conditional.
Section 3.05
Deposit of Redemption or Purchase Price. Prior to 11:00
a.m. New York City time on the redemption or purchase date, the
Company will
deposit with the Trustee or with the Paying Agent money sufficient
to pay the
redemption or purchase price of and accrued interest on all Notes
to be redeemed
or purchased on that date. The Trustee or the Paying Agent will
promptly return
to the Company any money deposited with the Trustee or the Paying
Agent by the
Company in excess of the amounts necessary to pay the redemption or
purchase
price of, and accrued interest on, all Notes to be redeemed or
purchased.
If the
Company complies with the provisions of the preceding
paragraph, on and after the redemption or purchase date, interest
will cease to
accrue on the Notes or the portions of Notes called for redemption
or purchase.
If a Note is redeemed or purchased on or after an interest record
date but on or
prior to the related interest payment date, then any accrued
and
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unpaid interest shall be paid to the Person in whose name such Note
was
registered at the close of business on such record date. If any
Note called for
redemption or purchase is not so paid upon surrender for redemption
or purchase
because of the failure of the Company to comply with the preceding
paragraph,
interest shall be paid on the unpaid principal, from the redemption
or purchase
date until such principal is paid, and to the extent lawful on any
interest not
paid on such unpaid principal, in each case at the rate provided in
the Notes
and in Section 4.01 hereof.
Section 3.06
Notes Redeemed or Purchased in Part. Upon surrender and
cancellation of a Note that is redeemed or purchased in part, the
Company will
issue and, upon receipt of an Authentication Order, the Trustee
will
authenticate for the Holder at the expense of the Company a new
Note equal in
principal amount to the unredeemed or unpurchased portion of the
Note
surrendered.
Section 3.07
Optional Redemption. (a) The Company may on any one or
more occasions redeem up to 35% of the aggregate principal amount
of Notes
issued under this Indenture (including the amount of PIK Notes, if
any, applied
as provided under Section 4.21 hereof) at a redemption price of
105.625% of the
principal amount thereof, plus accrued and unpaid interest to the
redemption
date, with the net cash proceeds of one or more Equity Offerings;
provided that:
(1) at
least 65% of the aggregate principal amount of Notes
originally issued under this Indenture
(excluding Notes held by the Company
and its Subsidiaries but including the
amount of PIK Notes, if any, applied
as provided under Section 4.21 hereof)
remains outstanding immediately
after the occurrence of such redemption;
and
(2)
the redemption occurs within 90 days of the date of the closing
of such Equity Offering.
(b) At
any time on or prior to March 15, 2011, the Company may redeem
the Notes, in whole but not in part, upon not less than 30 nor more
than 60
days' prior notice, at a redemption price of 122.50% of the
principal amount
thereof, plus accrued and unpaid interest to the redemption date,
subject to the
rights of Holders of Notes on the relevant record date to receive
interest due
on the relevant interest payment date; provided, however, that if
prior to the
date of such redemption, the Payment in Kind has been made pursuant
to Section
4.21 hereof, then the redemption price will be 111.25% of the
principal amount,
plus accrued and unpaid interest to the redemption date, subject to
the rights
of Holders of Notes on the relevant record date to receive interest
due on the
relevant interest payment date.
(c) At
any time after March 15, 2011, the Company may redeem the
Notes, in whole but not in part, upon not less than 30 nor more
than 60 days'
prior notice, at a redemption price equal to the Make-Whole Price,
subject to
the rights of Holders of Notes on the relevant record date to
receive interest
due on the relevant interest payment date. The notice of redemption
with respect
to the redemption described in this Section 3.07(c) need not set
forth the
Make-Whole Price but only the manner of calculation thereof. The
Company will
notify the Trustee of the Make-Whole Price with respect to any
redemption
promptly after the calculation and the Trustee shall not be
responsible for such
calculation.
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(d)
Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Sections 3.01 through 3.06
hereof.
Section 3.08
Mandatory Redemption. The Company is not required to make
mandatory redemption or sinking fund payments with respect to the
Notes.
Section 3.09
Offer to Purchase by Application of Excess Proceeds. In
the event that, pursuant to Section 4.10 hereof, the Company is
required to
commence an offer to all Holders to purchase Notes (an "Asset Sale
Offer"), it
will follow the procedures specified below.
The Asset
Sale Offer shall be made to all Holders and all holders of
other Indebtedness that is pari passu with the Notes containing
provisions
similar to those set forth in this Indenture with respect to offers
to purchase
or redeem with the proceeds of sales of assets. The Asset Sale
Offer will remain
open for a period of at least 20 Business Days following its
commencement and
not more than 30 Business Days, except to the extent that a longer
period is
required by applicable law (the "Offer Period"). No later than
three Business
Days after the termination of the Offer Period (the "Purchase
Date"), the
Company will apply all Excess Proceeds (the "Offer Amount") to the
purchase of
Notes and such other Pari Passu Indebtedness (on a pro rata basis,
if
applicable) or, if less than the Offer Amount has been tendered,
all Notes and
other Indebtedness tendered in response to the Asset Sale Offer.
Payment for any
Notes so purchased will be made in the same manner as interest
payments are
made.
If the
Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid
interest will
be paid to the Person in whose name a Note is registered at the
close of
business on such record date, and no additional interest will be
payable to
Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the
commencement of an Asset Sale Offer, the Company will send,
by first class mail, a notice to the Trustee and each of the
Holders, with a
copy to the Trustee. The notice will contain all instructions and
materials
necessary to enable such Holders to tender Notes pursuant to the
Asset Sale
Offer. The notice, which will govern the terms of the Asset Sale
Offer, will
state:
(1)
that the Asset Sale Offer is being made pursuant to this
Section 3.09 and Section 4.10 hereof and the length of time the
Asset Sale Offer
will remain open;
(2)
the Offer Amount, the purchase price and the Purchase Date;
(3)
that any Note not tendered or accepted for payment will
continue
to accrue interest;
(4)
that, unless the Company defaults in making such payment, any
Note accepted for payment pursuant to the Asset Sale Offer will
cease to accrue
interest after the Purchase Date;
(5)
that Holders electing to have a Note purchased pursuant to an
Asset Sale Offer may elect to have Notes purchased in integral
multiples of
$1,000 only;
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(6)
that Holders electing to have Notes purchased pursuant to any
Asset Sale Offer will be required to surrender the Note, with the
form entitled
"Option of Holder to Elect Purchase" attached to the Notes
completed, or
transfer by book-entry transfer, to the Company, a Depositary, if
appointed by
the Company, or a Paying Agent at the address specified in the
notice at least
three days before the Purchase Date;
(7)
that Holders will be entitled to withdraw their election if the
Company, the Depositary or the Paying Agent, as the case may be,
receives, not
later than the expiration of the Offer Period, a telegram, telex,
facsimile
transmission or letter setting forth the name of the Holder, the
principal
amount of the Note the Holder delivered for purchase and a
statement that such
Holder is withdrawing his election to have such Note purchased;
(8)
that, if the aggregate principal amount of Notes and other Pari
Passu Indebtedness surrendered by holders thereof exceeds the Offer
Amount, the
Trustee will select the Notes and other Pari Passu Indebtedness to
be purchased
on a pro rata basis based on the principal amount of Notes and such
other Pari
Passu Indebtedness surrendered (with such adjustments as may be
deemed
appropriate by the Trustee so that only Notes in denominations of
$1,000, or
integral multiples thereof, will be purchased); and
(9)
that Holders whose Notes were purchased only in part will be
issued new Notes equal in principal amount to the unpurchased
portion of the
Notes surrendered (or transferred by book-entry transfer).
On or before
the Purchase Date, the Company will, to the extent
lawful, accept for payment, on a pro rata basis to the extent
necessary, the
Offer Amount of Notes or portions thereof tendered pursuant to the
Asset Sale
Offer, or if less than the Offer Amount has been tendered, all
Notes tendered,
and will deliver or cause to be delivered to the Trustee the Notes
properly
accepted together with an Officers' Certificate stating that such
Notes or
portions thereof were accepted for payment by the Company in
accordance with the
terms of this Section 3.09. The Company, the Depositary or the
Paying Agent, as
the case may be, will promptly (but in any case not later than five
days after
the Purchase Date) mail or deliver to each tendering Holder an
amount equal to
the purchase price of the Notes tendered by such Holder and
accepted by the
Company for purchase, and the Company will promptly issue a new
Note, and the
Trustee, upon written request from the Company, will authenticate
and mail or
deliver (or cause to be transferred by book entry) such new Note to
such Holder,
in a principal amount equal to any unpurchased portion of the Note
surrendered.
Any Note not so accepted shall be promptly mailed or delivered by
the Company to
the Holder thereof. The Company will publicly announce the results
of the Asset
Sale Offer on the Purchase Date.
Other than
as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the
provisions of
Sections 3.01 through 3.06 hereof.
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ARTICLE IV
Covenants
Section 4.01
Payment of Notes. The Company will pay or cause to be
paid the principal of, premium, if any, and interest on, the Notes
on the dates
and in the manner provided in the Notes. Principal, premium, if
any, and
interest will be considered paid on the date due if the Paying
Agent, if other
than the Company or a Subsidiary thereof, holds as of 12:00 p.m.
New York City
time on the due date money deposited by the Company in immediately
available
funds and designated for and sufficient to pay all principal,
premium, if any,
and interest then due.
Such Paying
Agent shall return to the Company promptly, and in any
event, no later than two Business Days following the date of
payment, any money
(including accrued interest) that exceeds such amount of principal,
premium, if
any, and interest paid on the Notes. If a payment date is a Legal
Holiday at a
place of payment, payment may be made at that place on the next
succeeding day
that is not a Legal Holiday, and no interest shall accrue on such
payment for
the intervening period.
The Company
will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to
1% per annum in excess of the then applicable interest rate on the
Notes to the
extent lawful; it will pay interest (including post-petition
interest in any
proceeding under any Bankruptcy Law) on overdue installments of
interest
(without regard to any applicable grace period) at the same rate to
the extent
lawful.
Interest
will be computed on the basis of a 360-day year comprised of
twelve 30-day months.
Section 4.02
Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, the City of New York, an
office or agency
(which may be an office of the Trustee or an affiliate of the
Trustee, Registrar
or co-registrar) where Notes may be surrendered for registration of
transfer or
for exchange and where notices and demands to or upon the Company
in respect of
the Notes and this Indenture may be served. The Company will give
prompt written
notice to the Trustee of the location, and any change in the
location, of such
office or agency. If at any time the Company fails to maintain any
such required
office or agency or fails to furnish the Trustee with the address
thereof, such
presentations, surrenders, notices and demands may be made or
served at the
Corporate Trust Office of the Trustee.
The Company
may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered
for any or
all such purposes and may from time to time rescind such
designations; provided,
however, that no such designation or rescission will in any manner
relieve the
Company of its obligation to maintain an office or agency in the
Borough of
Manhattan, the City of New York for such purposes. The Company will
give prompt
written notice to the Trustee of any such designation or rescission
and of any
change in the location of any such other office or agency.
The Company
hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance
with Section
2.03 hereof.
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Section 4.03
Reports. (a) Whether or not required by the rules and
regulations of the SEC, so long as any Notes are outstanding, the
Company will
furnish to the Trustee and the Holders of Notes, or cause the
Trustee to furnish
to the Holders of Notes, within the time periods specified in the
SEC's rules
and regulations:
(1)
all quarterly and annual reports that would be required to be
filed with the SEC on Forms 10-Q and 10-K
if the Parent Entity were
required to file such reports; and
(2)
all current reports that would be required to be filed with or
furnished to the SEC on Form 8-K if the
Parent Entity were required to file
or furnish such reports.
All such
reports will be prepared in all material respects in
accordance with all of the rules and regulations applicable to such
reports.
Each annual report on Form 10-K will include a report on the
Company's
consolidated financial statements by the Company's certified
independent
accountants. In addition, the Company will file or furnish a copy
of each of the
reports referred to in clauses (1) and (2) above with or to the SEC
for public
availability within the time periods specified in the rules and
regulations
applicable to such reports (unless the SEC will not accept such a
filing) and
will post the reports on its website within those time periods. The
availability
of the reports referred to in clauses (1) and (2) on the SEC's
EDGAR service or
on the Company's website shall be deemed to satisfy the Company's
delivery
obligation hereunder; provided that, the Company will notify
(including, without
limitation, by email or facsimile) the Trustee of such availability
of the
reports referred to in clause (1) within ten Business Days after
the date such
reports are so available, which notification shall include, if
applicable, any
access instructions or password necessary to access such
reports.
If, at any
time, the Company is no longer subject to the periodic
reporting requirements of the Exchange Act for any reason, the
Company will
nevertheless continue filing the reports specified in clause (a) of
this Section
4.03 with the SEC within the time periods specified in clause (a)
of this
Section 4.03 unless the SEC will not accept such a filing. The
Company agrees
that it will not take any action for the purpose of causing the SEC
not to
accept any such filings. If, notwithstanding the foregoing, the SEC
will not
accept the Company's filings for any reason, the Company will post
the reports
referred to in the preceding paragraph on its website within the
time periods
that would apply if the Company were required to file those reports
with the
SEC.
(b) If
the Company has designated any of its Subsidiaries as
Unrestricted Subsidiaries, then the quarterly and annual financial
information
required by clause (a) of this Section 4.03 will include a
reasonably detailed
presentation, either on the face of the financial statements or in
the footnotes
thereto, and in Management's Discussion and Analysis of Financial
Condition and
Results of Operations, of the financial condition and results of
operations of
the Company and its Restricted Subsidiaries separate from the
financial
condition and results of operations of the Unrestricted
Subsidiaries of the
Company.
(c)
For so long as any Notes remain outstanding, if at any time
they
are not required to file with the SEC the reports required by
clauses (a) and
(b) of this Section 4.03, the Company and the Guarantors will
furnish to the
Holders and to securities analysts and
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prospective investors, upon their request, the information required
to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
Section 4.04
Compliance Certificate. (a) The Company and each
Guarantor (to the extent that such Guarantor is so required under
the TIA) shall
deliver to the Trustee, within 90 days after the end of each fiscal
year, an
Officers' Certificate stating that a review of the activities of
the Company and
its Subsidiaries during the preceding fiscal year has been made
under the
supervision of the signing Officers with a view to determining
whether the
Company has complied with its obligations under this Indenture, and
further
stating, as to each such Officer signing such certificate, that to
the best of
his or her knowledge the Company has complied with each and every
covenant
contained in this Indenture applicable to it and is not in default
in the
performance or observance of any of the terms, provisions and
conditions of this
Indenture (or, if a Default or Event of Default has occurred,
describing all
such Defaults or Events of Default of which he or she may have
knowledge and
what action the Company is taking or proposes to take with respect
thereto) and
that to the best of his or her knowledge no event has occurred and
remains in
existence by reason of which payments on account of the principal
of or
interest, if any, on the Notes is prohibited or if such event has
occurred, a
description of the event and what action the Company is taking or
proposes to
take with respect thereto.
(b) So
long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the
year-end financial
statements delivered pursuant to Section 4.03 above shall be
accompanied by a
written statement of the Company's independent public accountants
(who shall be
a firm of established national reputation) that in making the
examination
necessary for certification of such financial statements, nothing
has come to
their attention that would lead them to believe that the Company
has violated
any provisions of Article IV or Article V hereof or, if any such
violation has
occurred, specifying the nature and period of existence thereof, it
being
understood that such accountants shall not be liable directly or
indirectly to
any Person for any failure to obtain knowledge of any such
violation and that
such certification may be limited by such accountants to accounting
matters.
(c) So
long as any of the Notes are outstanding, the Company will
deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default
or Event of Default, an Officers' Certificate specifying such
Default or Event
of Default and what action the Company is taking or proposes to
take with
respect thereto.
Section 4.05
Taxes. The Company will pay, and will cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes,
assessments, and
governmental levies except such as are contested in good faith and
by
appropriate negotiations or pr
