Rating Agency
|
|
|
|
|
|
|
|
|
Rating Level
|
|
Moody's*
|
|
S&P*
|
|
Percentage
|
|
1
|
|
Ba1
|
|
BB+
|
|
|
0.25
|
%
|
2
|
|
Ba2
|
|
BB
|
|
|
0.50
|
%
|
3
|
|
Ba3
|
|
BB
|
|
|
0.75
|
%
|
4
|
|
B1 or below
|
|
B+ or below
|
|
|
1.00
|
%
|
-
*
-
Including
the equivalent ratings of any Substitute Rating Agency
If
at any time the interest rate on the notes has been adjusted upward as a result of a decrease in a rating by a Rating Agency and that Rating Agency subsequently increases its rating
with respect to the notes to any of the threshold ratings set forth above, the per annum interest rate on the notes will be
decreased such that the per annum interest rate equals the interest rate set forth on the cover page of this prospectus plus the percentage set forth opposite the rating for such Rating Agency in
effect immediately following the increase in the table above; provided that if Moody's or any Substitute Rating Agency subsequently increases its rating of the notes to "Baa3" (or its equivalent if
with respect
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to
any Substitute Rating Agency) or higher and S&P or any Substitute Rating Agency subsequently increases its rating of the notes to "BBB" (or its equivalent if with respect to any
Substitute Rating Agency) or higher, the interest rate on the notes will be decreased to the per annum interest rate on the notes set forth on the cover page of this prospectus.
No
adjustment in the interest rate of notes shall be made solely as a result of a Rating Agency ceasing to provide a rating. If at any time less than two Rating Agencies provide a rating
of the notes for a reason outside of the Company's control, the Company will use its commercially reasonable efforts to obtain a rating of the notes from another nationally recognized statistical
rating organization, to the extent one exists, and if another nationally recognized statistical rating organization rates the notes (such organization, as certified by a resolution of the Board of
Directors of the Company, a "Substitute Rating Agency"), for purposes of determining any increase or decrease in the per annum interest rate on the notes pursuant to the table above (a) such
Substitute Rating Agency will be substituted for the last Rating Agency to provide a rating of the notes but which has since ceased to provide such rating, (b) the relative ratings scale used
by such Substitute Rating Agency to assign ratings to senior unsecured debt will be determined in good faith by an independent investment banking institution of national standing appointed by the
Company and, for purposes of determining the applicable ratings included in the table above with respect to such Substitute Rating Agency, such ratings shall be deemed to be the equivalent ratings
used by Moody's or S&P, as applicable, in such table and (c) the per annum interest rate on the notes will increase or decrease, as the case may be, such that the interest rate equals the
interest rate set forth on the cover page of this prospectus plus the appropriate percentage, if any, set forth opposite the rating from such Substitute Rating Agency in the table above (taking into
account the provisions of clause (b) above). Subject to the second to last paragraph of this section, for so long as (i) only one Rating Agency provides a rating of the notes, any
increase or decrease in the interest rate of the notes necessitated by a reduction or increase in the rating by that Rating Agency shall be twice the applicable percentage set forth in the table above
and (ii) no Rating Agency provides a rating of the notes, the interest rate on the notes will increase to, or remain at, as the case may be, 2.00% above the interest rate set forth on the cover
page of this prospectus.
If
Moody's or S&P ceases to rate the notes or make a rating of the notes publicly available for reasons within our control, the Company will not be entitled to obtain a rating from a
Substitute Rating Agency and the increase or decrease in the interest rate on the notes shall be determined in the manner described herein as if either only one or no Rating Agency provides a rating
on the notes, as the case may be.
Each
adjustment required by any decrease or increase in a rating set forth above, whether occasioned by the action of Moody's, S&P or any Substitute Rating Agency, shall be made
independent of (and in addition to) any and all other adjustments. For example, if only one of the Rating Agencies decreases its rating of the notes to Rating Level 1 (and the rating provided
by the other Rating Agency is above Rating Level 1), then the interest rate payable on the notes will increase by 0.25%, and if each of the Rating Agencies decreases its rating of the notes to
Rating Level 1, then the interest rate borne by the notes will increase by 0.25% on account of each such rating provided by both Rating Agencies, or 0.50% in the aggregate. In no event shall
(1) the per annum interest rate on the notes be reduced below the interest rate set forth on the cover page of this prospectus or (2) the per annum interest rate on the notes exceed a
rate that is 2.00% above the interest rate set forth on the cover page of this prospectus.
Any
interest rate increase or decrease described above will take effect on the first day of the interest period following the period in which the rating change has occurred. If any
Rating Agency changes its rating of the notes more than once during any particular interest period, the last such change to occur will control in the event of a conflict.
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The
interest rates on the notes will permanently cease to be subject to any adjustment described above (notwithstanding any subsequent decrease in the ratings by any Rating Agency) if
the notes become rated "Baa1" (or its equivalent) or higher by Moody's (or any Substitute Rating Agency) and "BBB+" (or its equivalent) or higher by S&P (or any Substitute Rating Agency), or one of
those ratings if only rated by one Rating Agency, in each case with a stable or positive outlook.
Ranking
The notes will be senior unsecured obligations of the Company and will rank
pari passu
with all existing and future unsecured and unsubordinated obligations of the Company, including, without limitation, obligations under the Credit Facility. As described under "Subsidiary
Guarantees," certain of the Company's Subsidiaries that guarantee certain Indebtedness of the Company, including the Credit Facility will initially also guarantee the notes. The guarantees will be
senior unsecured obligations of the guarantors and will rank
pari passu
with all other existing and future unsecured unsubordinated obligations of such
guarantors, including, without limitation, obligations under the Credit Facility.
Claims
of creditors of the Company's Subsidiaries generally will have priority with respect to the assets and earnings of such Subsidiaries over the claims of the Company's creditors,
including holders of the
notes. Accordingly, the notes will be effectively subordinated to creditors, including trade creditors and preferred shareholders, if any, of the Company's Subsidiaries. As of July 3, 2016, the
Company had approximately $1.3 billion of secured indebtedness (including the notes) and the Company's Subsidiaries had total liabilities of approximately $1.8 billion.
The
notes will:
-
-
rank equally in right of payment to all of the Company's existing and future senior unsecured and unsubordinated indebtedness
including, without limitation, the Credit Facility;
-
-
rank senior in right of payment to all of the Company's existing and future indebtedness that is subordinated in right of payment to
the notes;
-
-
be effectively subordinated to all of the Company's and any guarantor's existing and future secured indebtedness to the extent of the
value of the assets of the Company and such guarantor securing such indebtedness; and
-
-
be structurally subordinated to all of the existing and future indebtedness and other liabilities of the Company's non-guarantor
Subsidiaries; and
-
-
be guaranteed on a senior unsecured basis by each guarantor.
Subsidiary Guarantees
The notes will initially be fully and unconditionally guaranteed, jointly and severally on a senior unsecured basis, by each of the
Company's Subsidiaries that guarantees Primary Senior Indebtedness. The guarantee of each guarantor will be an unsecured, unsubordinated obligation of that guarantor and
will:
-
-
rank equally in right of payment to all existing and future senior unsecured and unsubordinated indebtedness of that guarantor
including, without limitation, its guarantee of the Credit Facility;
-
-
rank senior in right of payment to all existing and future indebtedness of that guarantor that is subordinated in right of payment to
its guarantee of the notes;
-
-
be effectively subordinated to all existing and future secured indebtedness of that guarantor to the extent of the value of the assets
securing such indebtedness; and
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-
-
be structurally subordinated to all of the existing and future indebtedness and other liabilities of Subsidiaries of that guarantor
that are not guarantors of the notes.
Each
subsidiary guarantee will be a continuing guarantee and will inure to the benefit of and be enforceable by the trustee, the holders of the notes and their successors, transferees
and assigns.
A
guarantor will be automatically and unconditionally released from its obligations under the notes and the indenture: (a) if the Company exercises its legal defeasance option or
its covenant defeasance option as described under "Defeasance and Covenant Defeasance" or if its obligations under the indenture are discharged in accordance with the terms of the
indenture; (b) upon the issuance, sale, exchange, transfer or other disposition (including through merger, consolidation, amalgamation or otherwise) of the capital stock of the applicable
guarantor following which the applicable guarantor is no longer a subsidiary of the Company, provided that such issuance, sale, exchange, transfer or other disposition is made in a manner not in
violation of the indenture; or (c) upon the substantially simultaneous release or discharge of the guarantee by such guarantor of all of the Company's Primary Senior Indebtedness other than
through discharges as a result of payment by such guarantor on such guarantees (but including any release or discharge that would be conditioned only on the release or discharge of the guarantee
hereunder or of the guarantee of other Primary Senior Indebtedness).
At
the Company's request, and upon delivery to the trustee of an officers' certificate and an opinion of counsel, each stating that all conditions precedent under the indenture relating
to such release have been complied with, the trustee will execute any documents reasonably requested by the Company evidencing such release.
If
at any time after the issuance of the notes, including following any release of a guarantor from its guarantee under the indenture, a subsidiary of the Company guarantees any existing
or future Primary Senior Indebtedness of the Company, the Company will cause such subsidiary to guarantee the notes by promptly executing and delivering a supplemental indenture in accordance with the
indenture.
The
notes will be structurally subordinated to the indebtedness and other liabilities of the Company's non-guarantor Subsidiaries. As of July 3, 2016, the Company's non-guarantor
Subsidiaries had no material indebtedness. The Company's non-guarantor Subsidiaries represented less than 20% of the Company's Consolidated EBITDA as of July 3, 2016.
Optional Redemption
The Company may redeem the notes at its option at any time, either in whole or in part. If the Company elects to redeem the notes, it
will pay a redemption price equal to the greater of the following amounts:
-
(1)
-
100%
of the aggregate principal amount of the notes to be redeemed; and
-
(2)
-
the
sum of the present values of the Remaining Scheduled Payments, plus, in each case, accrued and unpaid interest thereon to, but not including, the
redemption date; provided that if the Company redeems any notes on or after, September 3, 2025 (three months prior to the stated maturity date of the notes), the redemption price for those
notes will equal 100% of the principal amount of the notes to be redeemed, plus accrued and unpaid interest thereon to, but not including, the redemption date.
In
determining the present values of the Remaining Scheduled Payments, the Company will discount such payments to the redemption date on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) using a discount rate equal to the Treasury Rate plus 45 basis points.
The
following terms are relevant to the determination of the redemption price. "Comparable Treasury Issue" means the U.S. Treasury security selected by an Independent
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Investment
Banker as having an actual or interpolated maturity comparable to the remaining term of the notes to be redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such notes.
"Comparable
Treasury Price" means, with respect to any redemption date, (1) the arithmetic average of the Reference Treasury Dealer Quotations for such redemption date after
excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if the Company obtains fewer than four Reference Treasury Dealer Quotations, the arithmetic average of all
Reference Treasury Dealer Quotations for such redemption date.
"Independent
Investment Banker" means each of J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC or their respective successors as may be appointed from
time to time by the Company; provided, however, that if any of the foregoing ceases to be a primary U.S. Government securities dealer in New York City (a "primary treasury dealer"), the Company will
substitute another primary treasury dealer.
"Reference
Treasury Dealer" means J.P. Morgan Securities LLC or Morgan Stanley & Co. LLC, and two other primary treasury dealers selected by the Company, and
each of their respective successors and any other primary treasury dealers selected by the Company.
"Reference
Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any redemption date, the arithmetic average, as determined by the Company, of the bid and
asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Company by such Reference Treasury Dealer as of
3:30 p.m., New York City time, on the third business day preceding such redemption date.
"Remaining
Scheduled Payments" means, with respect to any note to be redeemed, the remaining scheduled payments of the principal of and premium, if any, and interest thereon that would
be due after the related redemption date but for such redemption; provided, however, that, if such redemption date is not an interest payment date with respect to such note, the amount of the next
scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to such redemption date.
"Treasury
Rate" means, with respect to any redemption date, the rate per annum equal to the semiannual equivalent yield to maturity (computed as of the third business day immediately
preceding that redemption date) of the Comparable Treasury Issue. In determining this rate, the Company will assume a price for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such redemption date.
A
partial redemption of the notes may be effected pro rata or by lot or by such method as the trustee may deem fair and appropriate and may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for the notes or any integral multiple thereof) of the principal amount of notes of a denomination larger than the minimum authorized
denomination for the notes.
Notice
of any redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each holder of the notes to be redeemed.
Unless
the Company defaults in payment of the redemption price, on and after the redemption date interest will cease to accrue on the notes, or portions thereof, called for redemption.
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Purchase of Notes upon a Change of Control Repurchase Event
If a Change of Control Repurchase Event occurs, unless the Company has exercised its right to redeem the notes as described above under
"Optional Redemption," the Company will be required to make an offer to each holder of the notes to repurchase all or any part (in excess of $2,000 and in integral multiples of $1,000) of
that holder's notes at a repurchase price in cash equal to 101% of the aggregate principal amount of the notes repurchased plus any accrued and unpaid interest on the notes repurchased to, but not
including, the date of repurchase. Within 30 days following any Change of Control Repurchase Event or, at the option of the Company, prior to any Change of Control, but after the public
announcement of the Change of Control, the Company will mail a notice to each holder, with a copy to the trustee, describing the transaction or transactions that constitute or may constitute the
Change of Control Repurchase Event and offering to repurchase the notes on the payment date specified in the notice, which date will be no earlier than 30 days and no later than 60 days
from the date such notice is mailed. The notice shall, if mailed prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on a Change of Control
Repurchase Event occurring on or prior to the payment date
specified in the notice. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act of 1934, as amended (the "Exchange Act"), to the extent applicable, and any other
securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the notes as a result of a Change of Control Repurchase Event.
To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the notes, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Repurchase Event provisions of the notes by virtue of such conflict.
On
the repurchase date following a Change of Control Repurchase Event, the Company will, to the extent lawful:
-
-
accept for payment all the notes or portions of the notes properly tendered pursuant to its offer;
-
-
deposit with the paying agent an amount equal to the aggregate purchase price in respect of all the notes or portions of the notes
properly tendered; and
-
-
deliver or cause to be delivered to the trustee the notes properly accepted, together with an officers' certificate stating the
aggregate principal amount of notes being purchased by the Company.
The
paying agent will promptly mail to each holder of notes properly tendered the purchase price for the notes, and the trustee will promptly authenticate after receipt of an
authentication order and mail (or cause to be transferred by book-entry) to each holder a new note equal in principal amount to any unpurchased portion of any notes surrendered.
The
Company will not be required to make an offer to repurchase the notes upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and
otherwise in compliance with the requirements for an offer made by the Company and such third party purchases all notes properly tendered and not withdrawn under its offer.
Notes
repurchased by the Company pursuant to a Change of Control Repurchase Event will have the status of notes issued but not outstanding or will be retired and canceled at the option
of the Company. Notes purchased by a third party pursuant to the preceding paragraphs will have the status of notes issued and outstanding.
The
Change of Control Repurchase Event feature of the notes may in certain circumstances make more difficult or discourage a sale or takeover of the Company and, thus, the removal of
incumbent management. The Change of Control Repurchase Event feature is a result of negotiations between the
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Company
and the initial purchasers of the original notes. The Company has no present intention to engage in a transaction involving a Change of Control, although it is possible that the Company could
decide to do so in the future. Subject to the limitations discussed below, the Company could, in the future, enter into certain transactions, including acquisitions, refinancings or other
recapitalizations, that would not constitute a Change of Control under the indenture, but that could increase the amount of Indebtedness outstanding at such time or otherwise affect the capital
structure of the Company or credit ratings on the notes. Restrictions on the ability of the Company to incur Liens and enter into sale and leaseback transactions are contained in the covenants as
described under "Certain CovenantsLimitation on Liens" and "Certain CovenantsLimitation on Sale and Leaseback Transactions." Except for the
limitations contained in such covenants and the covenant relating to repurchases upon the occurrence of a Change of Control Repurchase Event, however, the indenture will not contain any covenants or
provisions that may afford holders of the notes protection in the event of a highly leveraged transaction.
The
Company may not have sufficient funds to repurchase all the notes upon a Change of Control Repurchase Event. In addition, even if it has sufficient funds, the Company may be
prohibited from repurchasing the notes under the terms of its other Indebtedness then outstanding. See "Risk FactorsRisks Relating to this OfferingWe may not be able to
repurchase the notes upon a Change of Control Repurchase Event."
The
definition of "Change of Control" includes a phrase relating to the sale, lease or transfer of "all or substantially all" the assets of the Company and its Subsidiaries taken as a
whole. Although there is a developing body of case law interpreting the phrase "substantially all," there is no precise established definition of the phrase under applicable law. Accordingly, the
ability of a holder of notes to require the Company to repurchase such notes as a result of a sale, lease or transfer of less than all of the assets of the Company and its Subsidiaries taken as a
whole to another Person or group may be uncertain.
For
purposes of the foregoing discussion of a repurchase at the option of holders, the following definitions are applicable:
"Change
of Control" means:
(1) any
"person" or "group" of related Persons (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) becomes the beneficial owner (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that such Person or group shall be deemed to have "beneficial ownership" of all shares that any such Person or group has the right to
acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the total ordinary voting power of the Voting Stock of the
Company (or its successor by merger, consolidation or purchase of all or substantially all of its assets); or
(2) the
merger or consolidation of the Company with or into another Person or the merger of another Person with or into the Company or the merger of any Person with or into
a Subsidiary of the Company, unless the holders of a majority of the aggregate ordinary voting power of the Voting Stock of the Company, immediately prior to such transaction, hold securities of the
surviving or transferee Person that represent, immediately after such transaction, at least a majority of the aggregate ordinary voting power of the Voting Stock of the surviving or transferee Person;
or
(3) the
first day on which a majority of the members of the Board of Directors of the Company are not Continuing Directors; or
(4) the
sale, assignment, conveyance, transfer, lease or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all
or substantially all of the assets of the Company and its Subsidiaries taken as a whole to any "person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act); or
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(5) the
adoption by the stockholders of the Company of a plan or proposal for the liquidation or dissolution of the Company.
"Change
of Control Repurchase Event" means the occurrence of both a Change of Control and a Ratings Event.
"Continuing
Director" means, as of any date of determination, any member of the Board of Directors who (1) was a member of such Board of Directors on the initial issue date for
the notes or (2) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were member of such Board of Directors at the
time of such nomination or election.
"Investment
Grade" means a rating of Baa3 or better by Moody's (or its equivalent under any successor Rating Categories of Moody's); a rating of BBB or better by S&P (or
its equivalent under any successor Rating Categories of S&P); and the equivalent investment grade credit rating from any additional Rating Agency or Rating Agencies selected by the Company.
"Rating
Agency" means (1) each of Moody's and S&P; and (2) if either of Moody's or S&P ceases to rate the notes or fails to make a rating of the notes publicly available
for reasons outside of the control of the Company, a "nationally recognized statistical rating organization" within the meaning of Section 3(a)(62) under the Exchange Act, selected by the
Company (as certified by a resolution of the Board of Directors of the Company) as a replacement agency for Moody's or S&P, or both, as the case may be.
"Rating
Category" means (1) with respect to S&P, any of the following categories: BBB, BB, B, CCC, CC, C and D (or equivalent successor categories); (2) with respect to
Moody's, any of the following categories: Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories); and (3) the equivalent of any such category of S&P or Moody's used by another Rating
Agency. In determining whether the rating of the notes has decreased by one or more gradations, gradations within Rating Categories (+ and for S&P; 1, 2 and 3 for Moody's; or the
equivalent gradations for another Rating Agency) shall be taken into account (e.g., with respect to S&P, a decline in a rating from BB+ to BB, as well as from BB to B+, will
constitute a decrease of one gradation).
"Rating
Date" means the date that is 60 days prior to the earlier of, (1) a Change of Control or (2) public notice of the occurrence of a Change of Control or of the
intention by the Company to effect a Change of Control.
"Ratings
Event" means the occurrence of the events described in (a) or (b) below on, or within 60 days after, the earlier of (1) the occurrence of a Change of
Control and (2) public notice of the occurrence of a Change of Control or the intention by the Company to effect a Change of Control (which period shall be extended so long as the rating of the
notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies): (a) in the event the notes are rated by both Rating Agencies on the Rating Date as
Investment Grade, the rating of the notes shall be reduced so that the notes are rated below Investment Grade by both Rating Agencies, or (b) in the event the notes (i) are rated
Investment Grade by one Rating Agency and below Investment Grade by the other Rating
Agency or (ii) below Investment Grade by both Rating Agencies on the Rating Date, the rating of the notes by either Rating Agency shall be decreased by one or more gradations (including
gradations within Rating Categories, as well as between Rating Categories).
"Voting
Stock" of any specified "Person" (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date means the capital stock of such Person that is at the time
entitled to vote generally in the election of the Board of Directors of such Person.
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Open Market Purchases
The Company or any of its affiliates may at any time and from time to time repurchase notes in the open market or otherwise.
Further Issuances
The Company may from time to time, without notice to or the consent of the holders of the notes, create and issue notes under the
indenture in one or more series, which may have terms and conditions that differ from those that are set forth herein. In addition, the Company may, without the consent of the holders of any series of
the notes, issue additional notes having the same terms as, and ranking equally and ratably with, the notes in all respects (other than with respect to the date of issuance, issue price and amount of
interest payable on the first payment date applicable thereto); provided that if the additional notes are not fungible with the notes for U.S. federal income tax purposes, the additional notes will
have a separate CUSIP number. Such additional notes may be consolidated and form a single series with, and will have the same terms as to ranking, redemption, waivers, amendments and otherwise
as, the notes, and will vote together as one class on all matters with respect to the notes.
Certain Covenants
Except as set forth below, neither the Company nor any of its Subsidiaries will be restricted by the indenture
from:
-
-
incurring any indebtedness or other obligation,
-
-
paying dividends or making distributions on the capital stock of the Company or of such Subsidiaries, or
-
-
purchasing or redeeming capital stock of the Company or such Subsidiaries.
In
addition, the Company will not be required to maintain any financial ratios or specified levels of net worth or liquidity or to repurchase or redeem or otherwise modify the terms of
any of the notes upon a Change of Control or other events involving the Company or any of its Subsidiaries that may adversely affect the creditworthiness of the notes, except to the limited extent
provided under "Purchase of Notes upon a Change of Control Repurchase Event." Among other things, the indenture will not contain covenants designed to afford holders of the notes any
protections in the event of a highly leveraged or other transaction involving the Company that may adversely affect holders of the notes, except to the limited extent provided under
"Purchase of Notes upon a Change of Control Repurchase Event."
The
indenture contains the following principal covenants:
The Company will not directly or indirectly incur, and will not permit any of its Subsidiaries to directly or indirectly incur, any
Indebtedness secured by a mortgage, security interest, pledge, lien, charge or other similar encumbrance (collectively, "Liens") upon (1) any properties or assets, including capital stock, of
the Company or any of its Subsidiaries or (2) any shares of stock or Indebtedness of any of its Subsidiaries (whether such property, assets, shares or Indebtedness are now existing or owned or
hereafter created or acquired), in each case, unless prior to or at the same time, the notes (together with, at the option of the Company, any other Indebtedness of the Company or any of its
Subsidiaries ranking equally in right of payment with the notes) are equally and ratably secured with or, at the option of the Company, prior to, such secured Indebtedness.
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The
foregoing restriction does not apply to:
(1) Liens
on property, shares of stock or Indebtedness existing with respect to any Person at the time such Person becomes a Subsidiary of the Company;
provided
that such Lien was not incurred in anticipation of
such Person becoming a Subsidiary, does not extend to any property, shares of stock or
Indebtedness other than those of such Person becoming a Subsidiary and the Indebtedness so secured is not increased;
(2) Liens
on property, shares of stock or Indebtedness existing at the time of acquisition by the Company or any of its Subsidiaries or Liens on property, shares of stock or
Indebtedness to secure the payment of all or any part of the purchase price of such property, shares of stock or Indebtedness, or Liens on property, shares of stock or Indebtedness to secure any
Indebtedness incurred prior to, at the time of, or within 18 months after, the latest of the acquisition of such property, shares of stock or Indebtedness or, in the case of property, the
completion of construction, the completion of improvements or the commencement of substantial commercial operation of such property for the purpose of financing all or any part of the purchase price
of the property, the construction or the making of the improvements;
provided
that such Lien does not extend to any property, shares of stock or
Indebtedness other than the property, shares of stock or Indebtedness so acquired, completed or constructed;
(3) Liens
securing Indebtedness of the Company or any of the Company's Subsidiaries owing to the Company or any of its Subsidiaries;
(4) Liens
existing on the date of the initial issuance of the notes (other than any additional notes);
(5) Liens
on property or assets of a Person existing at the time such Person is merged into or consolidated with the Company or any of its Subsidiaries, or at the time of a
sale, lease or other disposition of all or substantially all of the properties or assets of a Person to the Company or any of its Subsidiaries;
provided
that such Lien was not incurred in anticipation of the merger, consolidation, or sale, lease, other disposition or other such transaction and does not extend to any assets other than such acquired
property;
(6) Liens
securing the notes (including any additional notes) and any guarantees in respect thereof;
(7) Liens
imposed by law, such as carriers', warehousemen's, mechanic's, repairmen's and other similar Liens, in each case for sums not yet overdue by more than
30 days (or if more than 30 days overdue, are unfiled and no other action has been taken to enforce such Liens) or being contested in good faith by appropriate proceedings or other Liens
arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review and Liens arising solely by virtue of
any statutory or common law provision relating to banker's Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository
institution;
(8) Liens
for taxes, assessments or other governmental charges that are not yet due or payable or subject to penalties for non-payment or which are being contested in good
faith by appropriate proceedings;
(9) Liens
to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;
(10) Liens
incurred in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security laws or
regulations;
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(11) easements,
zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure
any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Company or any Subsidiary;
(12) any
extensions, renewals or replacements of any Lien referred to in clauses (1) through (11) without increase of the principal of the Indebtedness secured
by such Lien;
provided
, however, that any Liens permitted by any of clauses (1) through (11) shall not extend to or cover any property of
the Company or any of its Subsidiaries, as the case may be, other than the property specified in such clauses and improvements to such property and the principal amount of the Indebtedness secured by
such Lien is not greater than the principal amount of the Indebtedness secured by the Lien that is extended, renewed or replaced.
Notwithstanding
the restrictions set forth in the preceding paragraph, the Company and its Subsidiaries will be permitted to incur Indebtedness secured by a Lien that would otherwise be
subject to the foregoing restrictions without equally and ratably securing the notes, provided that, after giving effect to such Indebtedness, the aggregate amount of all Indebtedness secured by Liens
(not including Liens permitted under clauses (1) through (12) above), together with all Attributable Debt outstanding pursuant to the second paragraph of the "Limitation on
Sale and Leaseback Transactions" covenant described below, does not exceed 15% of the Consolidated Tangible Assets of the Company calculated as of the date of the creation or incurrence of the Lien.
The Company and its Subsidiaries also may, without equally and ratably securing the notes, create or incur Liens that extend, renew, substitute or replace (including successive extensions, renewals,
substitutions or replacements), in whole or in part, any Lien permitted pursuant to the preceding sentence.
The Company will not directly or indirectly, and will not permit any of its Subsidiaries directly or indirectly to, enter into any sale
and leaseback transaction for the sale and leasing back of any property, whether now owned or hereafter acquired, unless:
(1) such
transaction was entered into prior to the date of the initial issuance of the notes (other than any additional notes);
(2) such
transaction was for the sale and leasing back to the Company or any Subsidiary of any property by one of its Subsidiaries;
(3) such
transaction involves a lease for not more than three years (or which may be terminated by the Company or its Subsidiaries within a period of not more than three
years);
(4) the
Company or any Subsidiary would be entitled to incur Indebtedness secured by a Lien with respect to such sale and leaseback transaction without equally and ratably
securing the notes pursuant to the second paragraph of the "Limitation on Liens" covenant described above; or
(5) the
Company or any Subsidiary applies an amount equal to the net proceeds from the sale of such property to the purchase of other property or assets used or useful in
its business or to the retirement of long-term Indebtedness within 270 days before or after the effective date of any such sale and leaseback transaction;
provided
that, in lieu of applying such
amount to the retirement of long-term Indebtedness, the Company may deliver notes to the trustee for
cancellation, such notes to be credited at the cost thereof to the Company.
Notwithstanding
the restrictions set forth in the preceding paragraph, the Company and its Subsidiaries may enter into any sale and leaseback transaction that would otherwise be subject
to the foregoing restrictions, if after giving effect to such new sale and leaseback transaction, the aggregate amount of all Attributable Debt with respect to sale and leaseback transactions that
would otherwise be
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subject
to the foregoing restrictions, together with all Indebtedness outstanding pursuant to the third paragraph of the "Limitation on Liens" covenant described above, does not exceed
15% of the Consolidated Tangible Assets of the Company calculated as of the closing date of the new sale and leaseback transaction.
Merger, Consolidation or Sale of Assets
The Company or any guarantor may not, without the consent of the holders of any outstanding notes (including any additional notes),
consolidate with or sell, lease or convey all or substantially all of its properties or assets to, or merge with or into, any other Person, unless:
(1) the
Company or such guarantor, as the case may be, is the continuing Person or, alternatively, the successor Person formed by or resulting from such consolidation or
merger, or the Person that receives the transfer of such properties or assets, is a corporation or limited liability company organized under the laws of any state or the District of Columbia and
expressly assumes the obligations of the Company under the indenture or of such guarantor under its guarantee by executing a supplemental indenture to the indenture, as the case may be;
(2) immediately
after giving effect to such transaction, no event of default and no event that, after notice or the lapse of time, or both, would become an event of default
has occurred and is continuing; and
(3) an
officers' certificate and legal opinion are delivered to the trustee, each stating that the consolidation, merger, conveyance or transfer complies with
clauses (1) and (2) above.
The
successor Person will succeed to, and be substituted for, the Company or such guarantor, as the case may be, and may exercise all of the rights and powers of the Company or such
guarantor, as the case may be, under the indenture and the respective guarantee. The Company or such guarantor, as the case may be, will be relieved of all obligations and covenants under the notes,
the respective guarantee and the indenture, provided, that in the case of a lease of all or substantially all of properties or assets of the Company or such guarantor, as the case may be, the Company
or such guarantor, as the case may be, will not be released from the obligation to pay the principal of and premium, if any, and interest on the notes. Notwithstanding the foregoing, any guarantor may
merge with or into or transfer all or part of its properties or assets to another guarantor or to the Company.
Events of Default
Each of the following is an "event of default" under the indenture with respect to the notes:
(1) a
default in any payment of interest on any note when due, which continues for 30 days,
(2) a
default in the payment of principal of or premium, if any, on any note when due at its stated maturity date, upon optional redemption or otherwise;
(3) a
failure by the Company to repurchase notes tendered for repurchase following the occurrence of a Change of Control Repurchase Event in conformity with the covenant set
forth under "Purchase of Notes upon a Change of Control Repurchase Event";
(4) a
failure by the Company or any guarantor to comply with their other covenants or agreements contained in the notes, indenture or guarantee, as applicable, which
continues for 90 days after written notice thereof to the Company by the trustee or to the Company and the trustee by the holders of not less than 25% in principal amount of the outstanding
notes (including any additional notes);
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(5) any
guarantee with respect to the notes ceases for any reason to be, or is asserted by the Company or the guarantor not to be, in full force and effect and enforceable
in accordance with its terms except to the extent contemplated by the indenture and any such guarantee;
(6) (a)
a failure to make any payment at maturity, including any applicable grace period, on any Indebtedness of the Company or Subsidiaries of the Company (other than
Indebtedness of the Company or of a Subsidiary owing to the Company or any of its Subsidiaries) outstanding in an amount in excess of $100,000,000 and continuance of this failure to pay or
(b) a default on any Indebtedness of the Company or Subsidiaries of the Company (other than Indebtedness owing to the Company or any of its Subsidiaries), which default results in the
acceleration of such Indebtedness in an amount in excess of $100,000,000 without such Indebtedness having been discharged or the acceleration having been cured, waived, rescinded or annulled, in the
case of clause (a) or (b) above, for a period of 30 days after written notice thereof to the Company by the trustee or to the Company and the trustee by the holders of not less
than 25% in principal aggregate amount of outstanding notes (including any additional notes);
provided
, however, that if at any time after a failure,
default or acceleration referred to in clause (a) or (b) above has occurred, but before a judgement or decree based on such acceleration has been obtained, such failure, default or
acceleration ceases or is cured, waived, rescinded or annulled, then the event of default will be deemed cured; and
(7) various
events in bankruptcy, insolvency or reorganization involving the Company or any guarantor.
The
foregoing will constitute an event of default whatever the reason for any such event of default and whether it is voluntary or involuntary or is effected by operation of any law or
pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.
If
an event of default occurs and is continuing, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding notes (including any additional notes) by
written notice to the Company may declare the principal of, and premium, if any, and accrued and unpaid interest on, all the notes to be due and payable. Upon this declaration, principal and premium,
if any, and unpaid interest will be immediately due and payable. If an event of default relating to certain events of bankruptcy, insolvency or reorganization of the Company occurs and is continuing,
the principal of and premium, if any, and accrued interest on all notes (including any additional notes) will become immediately due and payable without any declaration or other act on the part of the
trustee or any holders. Under some circumstances, the holders of a majority in aggregate principal amount of the outstanding notes (including any additional notes) may rescind any acceleration with
respect to the notes and its consequences.
If
an event of default occurs and is continuing, the trustee, in conformity with its duties under the indenture, will exercise all rights or powers under the indenture at the request or
direction of any of the holders, provided that the holders provide the trustee with an indemnity or security reasonably satisfactory to the trustee against any loss, liability or expense. Except to
enforce the right to receive payment of principal, premium, if any, or interest when due, no holder of the notes may pursue any remedy with respect to the indenture or the notes unless:
(1) the
holder previously notified the trustee that an event of default is continuing;
(2) holders
of at least 25% in aggregate principal amount of the outstanding notes (including any additional notes) requested the trustee to pursue the remedy;
(3) the
requesting holders offered the trustee security or indemnity reasonably satisfactory to the trustee against any loss, liability or expense;
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(4) the
trustee has not complied with the holder's request within 60 days after the receipt of the request and the offer of security or indemnity; and
(5) the
holders of a majority in principal amount of the outstanding notes (including any additional notes) have not given the trustee a direction inconsistent with the
request within the 60-day period.
Generally, the holders of a majority in aggregate principal amount of the outstanding notes (including any additional notes) will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to the trustee or of exercising any trust or power conferred on the trustee. The trustee may, however, refuse to follow any
direction that conflicts with law or the indenture or that the trustee determines is unduly prejudicial to the rights of any other holder or that would involve the trustee in Personal liability.
If
a default occurs and is continuing and is known to the trustee, the trustee must mail to each holder notice of the default within 90 days after it is known to the trustee.
Except in the case of a default in
the payment of principal or premium, if any, or interest on any note, the trustee may withhold notice if the trustee determines in good faith that withholding notice is not opposed to the interests of
the holders.
The
Company will also be required to deliver to the trustee, within 120 days after the end of each fiscal year, an officers' certificate indicating whether the signers of the
certificate know of any default under the indenture that occurred during the previous year. In addition, the Company will be required to notify the trustee within 30 days of any event that
would constitute various defaults, their status and what action the Company is taking or proposes to take in respect of these defaults.
Modification and Waivers
Modification and amendments of the indenture, the notes and the guarantees may be made by the Company and the trustee with the consent
of the holders of not less than a majority in aggregate principal amount of the outstanding notes; provided, however, that no such modification or amendment may, without the consent of the holder of
each outstanding note affected thereby:
-
-
change the stated maturity of the principal of, or installment of interest on, any note;
-
-
reduce the principal amount of, or the rate of interest on, any notes;
-
-
reduce any premium, if any, payable on the redemption or required repurchase of any note or change the date on which any note may be
redeemed or required to be repurchased;
-
-
change the coin or currency in which the principal of, premium, if any, or interest on any note is payable;
-
-
impair the right of any holder to institute suit for the enforcement of any payment on or after the stated maturity of any note;
-
-
reduce the percentage in principal amount of the outstanding notes, the consent of whose holders is required in order to take certain
actions;
-
-
reduce the requirements for quorum or voting by holders of notes in the indenture or the notes;
-
-
after the time an offer to repurchase the notes in the Change of Control Repurchase Event is required to have been made, reduce the
purchase amount or purchase price, or extend the latest Expiration Date or purchase date thereunder;
-
-
modify any of the provisions in the indenture regarding the waiver of past defaults and the waiver of certain covenants by the holders
of notes except to increase any percentage vote
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The
Company and the trustee may, without the consent of any holders, modify or amend the terms of the indenture, the notes and the guarantees with respect to the
following:
-
-
to cure any ambiguity, omission, defect or inconsistency;
-
-
to evidence the succession of another Person to the Company (or any guarantor) and the assumption by any such successor of the
obligations of the Company (or those of any guarantor), as described above under "Certain CovenantsMerger, Consolidation or Sale of Assets";
-
-
to add any additional events of default;
-
-
to add to the covenants of the Company for the benefit of holders of the notes or to surrender any right or power conferred upon the
Company;
-
-
to add one or more guarantees for the benefit of holders of the notes or to release one or more guarantees in accordance with the
indenture;
-
-
to add collateral security with respect to the notes;
-
-
to add or appoint a successor or separate trustee or other agent;
-
-
to provide for the issuance of any additional notes;
-
-
to comply with any requirement in connection with the qualification of the indenture under the Trust Indenture Act;
-
-
to comply with the rules of any applicable securities depository;
-
-
to conform the provisions of the indenture to the "Description of the Notes and Guarantees" section of this prospectus;
-
-
to make any changes to the indenture applicable only to debt securities of a series other than the notes offered hereby; and
-
-
to make any change if the change does not adversely affect the interests of any holder of notes.
The
holders of at least a majority in aggregate principal amount of the notes may, on behalf of the holders of all notes, waive compliance by the Company with certain restrictive
provisions of the indenture. The holders of not less than a majority in aggregate principal amount of the outstanding notes may, on behalf of the holders of all notes, waive any past default and its
consequences under the indenture, except a default (1) in the payment of principal or premium, if any, or interest on the notes or (2) in respect of a covenant or provision of the
indenture that cannot be modified or amended without the consent of the holder of each note. Upon any such waiver, such default shall cease to exist and any event of default arising therefrom shall be
deemed to have been cured for every purpose of the indenture; but no such waiver shall extend to any subsequent or other default or event of default or impair any rights consequent thereon.
Satisfaction and Discharge
The obligations of the Company and the guarantors under the indenture may be discharged while any notes remain outstanding if the notes
either have become due and payable or will become due and payable within one year (or are scheduled for redemption within one year) by the Company or any guarantor depositing with the trustee, in
trust, funds in U.S. dollars in an amount sufficient to pay the entire Indebtedness including the principal and premium, if any, and interest to the date of such
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deposit
(if the notes have become due and payable) or to the maturity thereof or the date of redemption of the notes, as the case may be, and paying all other amounts payable under the indenture.
Defeasance and Covenant Defeasance
The indenture will provide that the Company may elect either (1) to defease and be discharged from any and all obligations with
respect to the notes and to have each guarantor's obligation discharged with respect to its guarantee (except for, among other things, certain obligations to replace temporary or mutilated, destroyed,
lost or stolen notes, to maintain an office or agency with respect to the notes and to hold moneys for payment in trust) ("legal defeasance") or (2) to be released from its (and to have each
guarantor released from its) obligations to comply with the restrictive covenants under the indenture, and any omission to comply with such obligations will not constitute a default or an event of
default, and clauses (4) and (6) under "Events of Default" will no longer be applied ("covenant defeasance"). Legal defeasance or covenant defeasance, as the case may be,
will be conditioned upon, among other things, the irrevocable deposit by the Company or any guarantor with the trustee, in trust, of an amount in U.S. dollars, or U.S. Government obligations, or both,
that through the scheduled payment of principal and interest in accordance with their terms will provide money in an amount sufficient, in the opinion of a national recognized firm of independent
accountants or valuation consultants, to pay the principal or premium, if any, and interest on the notes on the scheduled due dates therefor.
If
the Company effects covenant defeasance and the notes are declared due and payable because of the occurrence of any event of default other than under clauses (4) and
(6) of "Events of Default," even if the amount in U.S. dollars, or U.S. Government obligations, or both, on deposit with the trustee is sufficient, in the opinion of a nationally
recognized firm of independent accountants, to pay amounts due on the notes at the time of the stated maturity, it may not be sufficient to pay amounts due on the notes at the time of the acceleration
resulting from such event of default. However, the Company and the guarantors would remain liable to make payment of such amounts due at the time of acceleration.
To
effect legal defeasance or covenant defeasance, the Company will be required to deliver to the trustee an opinion of counsel that the deposit and related defeasance will not cause the
holders and beneficial owners of the notes to recognize income, gain or loss for U.S. federal income tax purposes. If the Company elects legal defeasance, that opinion of counsel must be based upon a
ruling from the Internal Revenue Service or a change in law to that effect.
The
Company may exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance option.
Book-entry; Delivery and Form; Global Notes
The notes offered and sold to qualified institutional buyers (as defined in Rule 144A under the Securities Act) will be
represented by one or more permanent global notes or, in certain circumstances, notes in definitive, fully registered book-entry form, which will be registered in the name of a nominee of The
Depositary Trust Company ("DTC") and deposited on behalf of purchasers of the notes represented thereby with a custodian for DTC for credit to the respective accounts of the purchasers (or to such
other accounts as they may direct) at DTC.
Investors
may hold their interests in a global note directly through DTC if they are DTC participants or indirectly through organizations that are DTC participants. Except in the limited
circumstances described below, holders of notes represented by interests in a global note will not be entitled to receive their notes in fully registered certificated form.
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DTC
has advised that it is: a limited purpose trust company organized under the laws of the State of New York; a "banking organization" within the meaning of the New York State Banking
Law; a member of the Federal Reserve System; a "clearing corporation" within the meaning of the New York Uniform Commercial Code; and a "clearing agency" registered under Section 17A of the
Exchange Act. DTC was created to hold securities of institutions that have accounts with DTC ("participants") and to facilitate the clearance and settlement of securities transactions among its
participants in such securities through electronic book-entry changes in accounts of the participants. DTC's participants include securities brokers and dealers (which may include the initial
purchasers of the original notes), banks, trust companies, clearing corporations and certain other organizations. Indirect access to DTC's book-entry system is also available to others such as banks,
brokers, dealers and trust companies that clear through or maintain a custodial relationship with a participant, whether directly or indirectly.
Ownership of Beneficial Interests
Upon the issuance of each global note, DTC will credit, on its book-entry registration and transfer system, the respective principal
amount of the individual beneficial interests represented by the global note to the accounts of participants. Ownership of beneficial interests in each
global note will be limited to participants or Persons that may hold interests through participants. Ownership of beneficial interests in each global note will be shown on, and the transfer of those
ownership interests will be effected only through, records maintained by DTC (with respect to participants' interests) and such participants (with respect to the owners of beneficial interests in the
global note other than participants).
So
long as DTC or its nominee is the registered holder and owner of a global note, DTC or such nominee, as the case may be, will be considered the sole legal owner of the notes
represented by the global note for all purposes under the indenture, the notes and applicable law. Except as set forth below, owners of beneficial interests in a global note will not be entitled to
have notes represented by the global note registered in their name or to receive certificated notes and will not be considered to be the owners or holders of any notes under the global note. The
Company understands that under existing industry practice, in the event an owner of a beneficial interest in a global note desires to take any actions that DTC, as the holder of the global note, is
entitled to take, DTC would authorize the participants to take such action, and that participants would authorize beneficial owners owning through such participants to take such action or would
otherwise act upon the instructions of beneficial owners owning through them. No beneficial owner of an interest in a global note will be able to transfer the interest except in accordance with DTC's
applicable procedures, in addition to those provided for under the indenture. Because DTC can only act on behalf of participants, who in turn act on behalf of others, the ability of a Person having a
beneficial interest in a global note to pledge that interest to Persons that do not participate in the DTC system, or otherwise to take actions in respect of that interest, may be impaired by the lack
of physical certificate of that interest.
All
payments on the notes represented by a global note registered in the name of and held by DTC or its nominee will be made to DTC or its nominee, as the case may be, as the registered
owner and holder of the global note.
The
Company expects that DTC or its nominee, upon receipt of any payment of principal, premium, if any, or interest in respect of a global note, will credit participants' accounts with
payments in amounts proportionate to their respective beneficial interests in the principal amount of the global note as shown on the records of DTC or its nominee. The Company also expects that
payments by participants to owners of beneficial interests in the global note held through such participants will be governed by standing instructions and customary practices as is now the case with
securities held for accounts for customers registered in the names of nominees for such customers. These payments, however, will be the responsibility of such participants and indirect participants,
and neither the Company, the initial purchasers of the original notes, the trustee nor any paying agent will have any
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responsibility
or liability for any aspect of the records relating to, or payments made on account of, beneficial ownership interests in any global note or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests or for any other aspect of the relationship
between DTC and its participants or the relationship between such participants and the owners of beneficial interests in the global note.
Unless
and until it is exchanged in whole or in part for certificated notes, each global note may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC
to DTC or another nominee of DTC. Transfers between participants in DTC will be effected in the ordinary way in accordance with DTC rules and will be settled in same-day funds.
The
Company expects that DTC will take any action permitted to be taken by a holder of notes (including the presentation of notes for exchange as described below) only at the direction
of one or more participants to whose account the DTC interests in a global note are credited and only in respect of such portion of the aggregate principal amount of the notes as to which such
participant or participants has or have given such direction.
Although
the Company expects that DTC will agree to the foregoing procedures in order to facilitate transfers of interests in each global note among participants of DTC, DTC is under no
obligation to perform or continue to perform such procedures, and such procedures may be discontinued at any time. None of the Company, the initial purchasers of the original notes or the trustee will
have any responsibility for the performance or nonperformance by DTC or their participants or indirect participants of their respective obligations under the rules and procedures governing their
operations.
The
indenture will provide that, if (1) DTC notifies the Company that it is unwilling or unable to continue as depository or if DTC ceases to be eligible under the indenture and
the Company does not appoint a successor depository within 90 days, (2) the Company determines that the notes shall no longer be represented by global notes and executes and delivers to
the trustee a company order to such effect or (3) an event of default with respect to the notes shall have occurred and be continuing, DTC may exchange the global notes for notes in
certificated form of like tenor and of an equal principal amount, in authorized denominations. These certificated notes will be registered in such name or names as DTC shall instruct the trustee. It
is expected that such instructions may be based upon directions received by DTC from participants with respect to ownership of beneficial interests in global securities.
The
information in this section concerning DTC and DTC's book-entry system has been obtained from sources that the Company believes to be reliable, but the Company does not take
responsibility for its accuracy.
Euroclear and Clearstream
If the depositary for a global security is DTC, you may hold interests in the global notes through Clearstream Banking,
socie´te´ anonyme ("Clearstream"), or Euroclear Bank S.A./N.V., as operator of the Euroclear System "'Euroclear"), in each case, as a participant in DTC.
Euroclear and Clearstream will hold interests, in each case, on behalf of their participants through customers' securities accounts in the names of Euroclear and Clearstream on the books of their
respective depositaries, which in turn will hold such interests in customers' securities in the depositaries' names on DTC's books.
Payments,
deliveries, transfers, exchanges, notices and other matters relating to the notes made through Euroclear or Clearstream must comply with the rules and procedures of those
systems. Those systems could change their rules and procedures at any time. The Company has no control over those systems or their participants, and it takes no responsibility for their activities.
Transactions between
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participants
in Euroclear or Clearstream, on the one hand, and other participants in DTC, on the other hand, would also be subject to DTC's rules and procedures.
Investors
will be able to make and receive through Euroclear and Clearstream payments, deliveries, transfers, exchanges, notices and other transactions involving any securities held
through those systems only on days when those systems are open for business. Those systems may not be open for business on days when banks, brokers and other institutions are open for business in the
United States.
In
addition, because of time-zone differences, U.S. investors who hold their interests in the notes through these systems and wish on a particular day, to transfer their interests, or to
receive or make a payment or delivery or exercise any other right with respect to their interests, may find that the transaction will not be effected until the next business day in Luxembourg or
Brussels, as applicable. Thus, investors who wish to exercise rights that expire on a particular day may need to act before the Expiration Date. In addition, investors who hold their interests through
both DTC and Euroclear or Clearstream may need to make special arrangements to finance any purchase or sales of their interests between the U.S. and European clearing systems, and those transactions
may settle later than transactions within one clearing system.
Governing Law
The indenture, the notes and the guarantees will be governed by, and construed in accordance with, the laws of the State of New York.
Trustee
U.S. Bank National Association is the trustee under the indenture and has also been appointed by the Company to act as registrar,
transfer agent and paying agent for the notes.
The
indenture contains limitations on the rights of the trustee, if it becomes a creditor of the Company, to obtain payment of claims in some cases, or to realize on property received in
respect of any of these claims as security or otherwise. The trustee is permitted to engage in other transactions. However, if the trustee acquires any conflicting interest, it must either eliminate
its conflict within 90 days, apply to the SEC for permission to continue as trustee or resign.
Definitions
The indenture contains the following defined terms:
"Attributable
Debt" means, with respect to any sale and leaseback transaction, at the time of determination, the total obligation (discounted to the present value at the implicit
interest factor, determined in accordance with GAAP, included in the rental payments) of the lessee for rental payments (other than amounts required to be paid on account of property taxes as well as
maintenance, repairs, insurance, water rates and other items that do not constitute payments for property rights) during the remaining term of the lease included in such transaction, including any
period for which such lease has been extended or may, at the option of the lessor, be extended.
"Consolidated
EBITDA" means, with reference to any period, Consolidated Net Income plus, without duplication and to the extent deducted from revenues in determining Consolidated Net
Income, (i) Consolidated Interest Expense, (ii) expense for income taxes paid or accrued, (iii) depreciation,
(iv) amortization, (v) extraordinary or non-recurring non-cash expenses or losses incurred other than in the ordinary course of business (and any unusual non-cash losses in excess of
$1,000,000 arising in or outside of the ordinary course of business not included in extraordinary losses (determined in accordance with GAAP) that have been included in the calculation of Consolidated
Net Income), (vi) any non-cash expenses related to stock based compensation, (vii) any non-cash increase in
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deferred
rent for such period minus, to the extent included in Consolidated Net Income, (1) interest income, (2) income tax credits and refunds (to the extent not netted from tax
expense), (3) any cash payments made during such period in respect of items described in clauses (v) or (vi) above subsequent to the fiscal quarter in which the relevant non-cash
expenses or losses were incurred and (4) extraordinary, unusual or non-recurring income or gains realized other than in the ordinary course of business, all calculated for the Company and its
Subsidiaries in accordance with GAAP on a consolidated basis.
"Consolidated
Interest Expense" means, with reference to any period, the interest expense (including without limitation interest expense under capital lease obligations that is treated
as interest in accordance with GAAP) of the Company and its Subsidiaries calculated on a consolidated basis for such period with respect to all outstanding Indebtedness of the Company and its
Subsidiaries allocable to such period in accordance with GAAP (including, without limitation, all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers
acceptance financing and net costs under interest rate swap agreements to the extent such net costs are allocable to such period in accordance with GAAP).
"Consolidated
Net Income" means, with reference to any period, the net income (or loss) of the Company and its Subsidiaries calculated in accordance with GAAP on a consolidated basis
(without duplication) for such period; provided that there shall be excluded any income (or loss) of any Person other than the Company or a Subsidiary, but any such income so excluded may be included
in such period or any later period to the extent of any cash dividends or distributions actually paid in the relevant period to the Company or any wholly-owned Subsidiary of the Company.
"Consolidated
Tangible Assets" means, to the Company and its Subsidiaries calculated in accordance with GAAP on a consolidated basis, the aggregate amount of assets (less depreciation
and valuation reserves and other reserves and items deductible from gross book value of specific asset accounts under GAAP) which under GAAP would be included on a balance sheet after deducting
therefrom all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles, which would be so included on such balance sheet.
"GAAP"
means generally accepted accounting principles in the United States of America in effect on the date of the indenture.
"guarantee"
means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person and any obligation, direct or indirect,
contingent or otherwise, of such Person (1) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of
partnership arrangements, or by agreement to keep well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise) or
(2) entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in
part); provided, however, that the term "guarantee" will not include endorsements for collection or deposit in the ordinary course of business. The term "guarantee," when used as a verb, has a
correlative meaning.
"holder"
means the Person in whose name a note is registered on the security register books.
"incur"
means issue, assume, guarantee or otherwise become liable for.
"Indebtedness"
means, with respect to any Person, obligations of such Person for borrowed money (including without limitation, indebtedness for borrowed money evidenced by notes, bonds,
debentures or similar instruments).
"Moody's"
means Moody's Investors Service, Inc. or any successor thereto.
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"Person"
means any individual, corporation, partnership, limited liability company, joint venture, association, joint- stock company, trust, unincorporated organization or government or
political subdivision thereof.
"Primary
Senior Indebtedness" means indebtedness under any existing or future credit, loan or borrowing facility or any indenture, note purchase agreement or similar agreement by the
Company providing for the incurrence of indebtedness, in each case in a principal amount equal to or greater than $100 million.
"S&P"
means Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc. or any successor thereto.
"Subsidiary"
means, with respect to any Person (the "parent") at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which
would be consolidated with those of the parent in the parent's consolidated financial statements if such financial statements were prepared in accordance with GAAP as of that date, as well as any
other corporation, limited liability company, partnership, association or other entity of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the
ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of that date, owned, controlled or held by the parent or one or more Subsidiaries of
the parent or by the parent and one or more Subsidiaries of the parent.
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