Mastec, Inc.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of report (Date of earliest event reported): January 31, 2007
MASTEC, INC.
(Exact Name of Registrant as Specified in Its Charter)
Florida
(State or Other Jurisdiction of Incorporation)
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Florida
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0-08106
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65-0829355 |
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(State or other jurisdiction of
incorporation)
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(Commission File
Number)
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(IRS Employer
Identification No.) |
800 S. Douglas Road, 12th Floor, Coral Gables, Florida 33134
(Address of Principal Executive Offices) (Zip Code)
(305) 599-1800
(Registrants Telephone Number, Including Area Code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy
the filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
ITEM 1.01 Entry into a Material Definitive Agreement
On January 31, 2007, MasTec, Inc., a Florida corporation (the Company), completed its
previously announced offering of $150,000,000 aggregate principal amount of 7 5/8% Senior Notes due
2017 (the Notes) that are guaranteed (the Guarantees, and collectively with the Notes, the
Securities) by substantially all of the Companys domestic restricted subsidiaries (the
Guarantors). The Securities were offered to investors in a private placement in reliance on Rule
144A under the Securities Act of 1933, as amended (the Securities Act), and outside the United
States in reliance on Regulation S under the Securities Act.
The Securities were issued pursuant to an indenture dated January 31, 2007 among the Company,
the Guarantors and U.S. Bank National Association, as trustee (the Indenture). The Indenture is
described under Item 2.03 below, which is hereby incorporated by reference in this Item 1.01 of
this Current Report on Form 8-K.
The Securities have not been registered under the Securities Act or any state securities laws
and may not be sold except in a transaction registered under, or exempt from, the registration
provisions of the Securities Act and applicable state securities laws. On January 31, 2007, the
Company entered into a registration rights agreement (the Registration Rights Agreement) pursuant
to which the Company and the Guarantors have agreed for the benefit of the holders of the
Securities to use their commercially reasonable efforts to file with the Securities and Exchange
Commission (the Commission) and cause to become effective a registration statement with respect
to a registered offer to exchange the Notes for an issue of the Companys senior notes (the
Exchange Notes) guaranteed by the Guarantors, with terms identical to the Notes (except that the
Exchange Notes will not bear legends restricting transfer and will not contain terms providing for
the payment of additional interest as described in the Registration Rights Agreement). In
addition, we have agreed to file, in certain circumstances, a shelf registration statement to cover
resales of the Notes. If the exchange offer for the Notes is not completed (or a shelf
registration is not declared effective) on or before October 31, 2007, the interest rate on the
Notes will be increased by 0.25% per annum for the first 90-day period thereafter, and the amount
of such additional interest will increase by an additional 0.25% per annum for each subsequent
90-day period, up to a maximum of 1.0% per annum over the original interest rate on the Notes (the
Additional Interest). Once the exchange offer is consummated or the shelf registration statement
is declared effective by the Commission, the annual interest rate on the Notes will revert to the
original interest rate of 7 5/8%. The foregoing description of the Registration Rights Agreement
is only a summary and is qualified in its entirety by reference to the full text of the
Registration Rights Agreement which is attached hereto as Exhibit 4.2 to this Current Report on
Form 8-K and is hereby incorporated by reference herein.
ITEM 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The Notes issued by the Company on January 31, 2007 as described in Item 1.01 of this Form 8-K
are the general senior unsecured obligations of the Company and rank equal in right of payment with
all of the Companys existing and future unsubordinated indebtedness. The Notes bear interest at 7
5/8% per annum, payable on February 1 and August 1 of each year, commencing August 1, 2007.
2
The Company may redeem the Notes, in whole or in part, at any time on or after February 1,
2012. The redemption price for the Notes (expressed as a percentage of principal amount) will be
(i) 103.813% if redeemed during the 12-month period commencing on February 1 of 2012, (ii) 102.542%
if redeemed during the 12-month period commencing on February 1 of 2013, (iii) 101.271% if redeemed
during the 12-month period commencing on February 1 of 2014 and (iv) 100% if redeemed on or after
February 1, 2015, plus accrued and unpaid interest, if any, to the redemption date.
We may also redeem all or part of the Notes at any time prior to February 1, 2012 at a
redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus the
Applicable Premium (as defined in the Indenture), as of, and accrued and unpaid interest to, the
redemption date.
Additionally, we may redeem up to 35% of the principal amount of the Notes prior to February
1, 2010 with the net cash proceeds of certain sales of our capital stock at 107.625% of the
principal amount of the Notes, plus accrued and unpaid interest, if any, to the date of redemption
only if, after the redemption, at least 65% of the aggregate principal amount of the Notes
originally issued remains outstanding and the notice of redemption is mailed within 60 days of such
sale of capital stock.
The terms of the Indenture, among other things, generally limit the ability of the Company and
certain of its subsidiaries to (i) incur additional debt and issue preferred stock, (ii) pay
dividends, acquire shares of capital stock, make payments on subordinated debt or make investments,
(iii) place limitations on distributions from certain subsidiaries, (iv) issue or sell the capital
stock of certain subsidiaries, (v) issue guarantees, (vi) sell or exchange assets, (vii) enter into
transactions with affiliates, (viii) create liens and (ix) effect mergers.
The Indenture provides for customary events of default which include (subject in certain cases
to customary grace and cure periods), among others: nonpayment of principal or interest; breach of
covenants or other agreements in the Indenture; defaults in failure to pay certain other
indebtedness; and certain events of bankruptcy or insolvency. Generally, if an event of default
occurs and is continuing under the Indenture, the Trustee or the holders of at least 25% in
aggregate principal amount of the Notes then outstanding may declare the principal of, premium, if
any, and accrued interest on all the Notes immediately due and payable. In addition, in the event
of a change in control, the Company will be required to commence and consummate an offer to
purchase all Notes then outstanding at a price equal to 101% of their principal amount, plus
accrued interest (if any), to the date of repurchase.
The foregoing description of the Indenture is only a summary and is qualified in its entirety
by reference to the full text of the Indenture which is attached to this Current Report on Form 8-K
as Exhibit 4.1 and is hereby incorporated by reference herein.
3
ITEM 2.04 Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement.
On January 31, 2007, the Company sent a notice of full redemption to the trustee of its 7.75%
Senior Subordinated Notes due 2008 (CUSIP No. 576323AD1)(the Old Notes) that it will redeem all
of the outstanding Old Notes on March 2, 2007 (the Redemption Date).
In accordance with the optional redemption provisions of the indenture governing the Old
Notes, the Company will redeem the Old Notes on the Redemption Date at a redemption price of 100%
of the principal amount thereof (or $1,000 per $1,000 in principal amount of the Old Notes) plus
accrued interest in the amount of $6.67 per $1,000 in principal amount of the Old Notes. The
Company will fund the redemption of the Old Notes from a portion of the proceeds from the sale of
the Securities, which are described in Items 1.01 and 2.03 of this Current Report on Form 8-K.
ITEM 9.01 Financial Statements and Exhibits
(d) Exhibits
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4.1
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Indenture, dated January 31, 2007, by and among the Company,
certain of the Companys subsidiaries and U.S. Bank National Association, as
trustee. |
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4.2
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Registration Rights Agreement, dated January 31, 2007, by
and among the Company, certain of the Companys subsidiaries and Morgan Stanley
& Co. Incorporated. |
4
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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MASTEC, INC.
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Date: February 1, 2007 |
By: |
/s/ Alberto de Cardenas
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Alberto de Cardenas |
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Executive Vice President
General Counsel |
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5
EXHIBIT INDEX
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Exhibit No.
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Description |
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4.1
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Indenture, dated January 31, 2007, by and among the Company, certain of the
Companys subsidiaries and U.S. Bank National Association, as trustee. |
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4.2
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Registration Rights Agreement, dated January 31, 2007, by and among the
Company, certain of the Companys subsidiaries and Morgan Stanley & Co. Incorporated. |
6
EX-4.1 Indenture
Execution Version
Exhibit 4.1
MASTEC, INC.
$150,000,000
75/8% SENIOR NOTES DUE 2017
INDENTURE
Dated as of January 31, 2007
U.S. Bank National Association,
Trustee
CROSS-REFERENCE TABLE*
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Trust Indenture |
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Act Section |
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Indenture Section |
310(a)(1) |
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7.10 |
(a)(2) |
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7.10 |
(a)(3) |
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N.A. |
(a)(4) |
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N.A. |
(a)(5) |
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7.10 |
(b) |
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7.10 |
(c) |
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N.A. |
311(a) |
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7.11 |
(b) |
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7.11 |
(c) |
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N.A. |
312(a) |
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2.05 |
(b) |
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13.03 |
(c) |
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13.03 |
313(a) |
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7.06 |
(b)(1) |
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N.A. |
(b)(2) |
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7.06; 7.07 |
(c) |
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7.06; 13.02 |
(d) |
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7.06 |
314(a) |
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4.03; 13.02; 13.05 |
(b) |
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N.A. |
(c)(1) |
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13.04 |
(c)(2) |
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13.04 |
(c)(3) |
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N.A. |
(d) |
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N.A. |
(e) |
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13.05 |
(f) |
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N.A. |
315(a) |
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7.01 |
(b) |
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7.05; 13.02 |
(c) |
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7.01 |
(d) |
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7.01 |
(e) |
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6.11 |
316(a) (last sentence) |
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2.09 |
(a)(1)(A) |
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6.05 |
(a)(1)(B) |
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6.04 |
(a)(2) |
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N.A. |
(b) |
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6.07 |
(c) |
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2.12; 9.04 |
317(a)(1) |
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6.08 |
(a)(2) |
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6.09 |
(b) |
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2.04 |
318(a) |
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13.01 |
(b) |
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N.A. |
(c) |
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13.01 |
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N.A. means not applicable. |
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* |
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This Cross Reference Table is not part of this Indenture. |
TABLE OF CONTENTS
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ARTICLE 1 |
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DEFINITIONS AND INCORPORATION BY REFERENCE |
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Section 1.01 Definitions
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1 |
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Section 1.02 Other Definitions
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28 |
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Section 1.03 Incorporation by Reference of Trust Indenture Act
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29 |
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Section 1.04 Rules of Construction
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29 |
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ARTICLE 2 |
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THE NOTES |
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Section 2.01 Form and Dating
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30 |
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Section 2.02 Execution and Authentication
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31 |
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Section 2.03 Registrar and Paying Agent
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31 |
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Section 2.04 Paying Agent to Hold Money in Trust
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32 |
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Section 2.05 Holder Lists
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32 |
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Section 2.06 Transfer and Exchange
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33 |
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Section 2.07 Replacement Notes
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47 |
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Section 2.08 Outstanding Notes
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47 |
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Section 2.09 Treasury Notes
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48 |
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Section 2.10 Temporary Notes
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48 |
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Section 2.11 Cancellation
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48 |
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Section 2.12 Defaulted Interest
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49 |
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Section 2.13 CUSIP Numbers and ISIN Numbers
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49 |
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ARTICLE 3 |
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REDEMPTION AND PREPAYMENT |
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Section 3.01 Notices to Trustee
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49 |
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Section 3.02 Selection of Notes to Be Redeemed
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50 |
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Section 3.03 Notice of Redemption
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50 |
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Section 3.04 Effect of Notice of Redemption
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51 |
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Section 3.05 Deposit of Redemption Price
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52 |
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Section 3.06 Notes Redeemed in Part
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52 |
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Section 3.07 Optional Redemption
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52 |
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Section 3.08 Mandatory Redemption
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53 |
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ARTICLE 4 |
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COVENANTS |
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Section 4.01 Payment of Notes
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53 |
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Section 4.02 Maintenance of Office or Agency
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54 |
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Section 4.03 Reports
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54 |
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Section 4.04 Compliance Certificate
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55 |
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Section 4.05 Reserved
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55 |
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Section 4.06 Limitation on Restricted Payments
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55 |
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Section 4.07 Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries
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60 |
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Section 4.08 Limitation on Indebtedness and Issuance of Preferred Stock
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62 |
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Section 4.09 Limitation on Asset Sales
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64 |
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Section 4.10 Limitation on Transactions with Affiliates
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66 |
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Section 4.11 Limitation on Liens
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67 |
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Section 4.12 Compliance with Laws
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69 |
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Section 4.13 Repurchase of Notes upon a Change of Control
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69 |
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Section 4.14 Payments for Consent
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71 |
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Section 4.15 Limitation on Issuance of Guarantees by Restricted Subsidiaries
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71 |
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Section 4.16 Covenant Termination
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72 |
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ARTICLE 5 |
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SUCCESSORS |
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Section 5.01 Consolidation, Merger and Sale of Assets
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72 |
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ARTICLE 6 |
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DEFAULTS AND REMEDIES |
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Section 6.01 Events of Default
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74 |
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Section 6.02 Acceleration
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76 |
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Section 6.03 Other Remedies
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76 |
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Section 6.04 Waiver of Past Defaults
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77 |
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Section 6.05 Control by Majority
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77 |
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Section 6.06 Limitation on Suits
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77 |
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Section 6.07 Rights of Holders of Notes to Receive Payment
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78 |
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Section 6.08 Collection Suit by Trustee
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78 |
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Section 6.09 Trustee May File Proofs of Claim
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78 |
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Section 6.10 Priorities
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79 |
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Section 6.11 Undertaking for Costs
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79 |
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Page |
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ARTICLE 7 |
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TRUSTEE |
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Section 7.01 Duties of Trustee
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79 |
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Section 7.02 Rights of Trustee
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81 |
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Section 7.03 Individual Rights of Trustee
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83 |
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Section 7.04 Trustees Disclaimer
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83 |
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Section 7.05 Notice of Defaults
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83 |
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Section 7.06 Reports by Trustee to Holders of the Notes
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83 |
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Section 7.07 Compensation and Indemnity
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84 |
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Section 7.08 Replacement of Trustee
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85 |
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Section 7.09 Successor Trustee by Merger, Etc.
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86 |
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Section 7.10 Eligibility; Disqualification
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86 |
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Section 7.11 Preferential Collection of Claims Against the Company
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86 |
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ARTICLE 8 |
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LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
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Section 8.01 Legal Defeasance and Covenant Defeasance
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86 |
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Section 8.02 Conditions to Legal Defeasance or Covenant Defeasance
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87 |
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Section 8.03 Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions
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88 |
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Section 8.04 Repayment to the Company
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89 |
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Section 8.05 Reinstatement
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89 |
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ARTICLE 9 |
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AMENDMENT, SUPPLEMENT AND WAIVER |
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Section 9.01 Without Consent of Holders of Notes
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89 |
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Section 9.02 With Consent of Holders of Notes
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90 |
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Section 9.03 Compliance with Trust Indenture Act
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91 |
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Section 9.04 Revocation and Effect of Consents
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91 |
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Section 9.05 Notation on or Exchange of Notes
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92 |
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Section 9.06 Trustee to Sign Amendments, Etc.
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92 |
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ARTICLE 10 |
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RESERVED |
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ARTICLE 11 |
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NOTE GUARANTEES |
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Section 11.01 Guarantee
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93 |
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Section 11.02 Limitation on Guarantor Liability
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94 |
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iii
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Page |
Section 11.03 Execution and Delivery of Note Guarantees
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94 |
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Section 11.04 Contribution
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95 |
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Section 11.05 Releases
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95 |
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ARTICLE 12 |
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SATISFACTION AND DISCHARGE |
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Section 12.01 Satisfaction and Discharge
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96 |
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Section 12.02 Application of Trust Money
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96 |
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ARTICLE 13 |
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MISCELLANEOUS |
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Section 13.01 Trust Indenture Act Controls
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97 |
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Section 13.02 Notices
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97 |
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Section 13.03 Communication by Holders of Notes with Other Holders of Notes
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98 |
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Section 13.04 Certificate and Opinion as to Conditions Precedent
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98 |
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Section 13.05 Statements Required in Certificate or Opinion
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99 |
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Section 13.06 Rules by Trustee and Agents
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99 |
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Section 13.07 No Personal Liability of Incorporators, Stockholders, Officers,
Directors or Employees
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99 |
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Section 13.08 Governing Law
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100 |
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Section 13.09 Successors
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100 |
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Section 13.10 Severability
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100 |
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Section 13.11 Counterpart Originals
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100 |
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Section 13.12 Table of Contents, Headings, Etc.
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100 |
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iv
EXHIBITS
Exhibit A FORM OF GLOBAL NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E FORM OF SUPPLEMENTAL INDENTURE
v
INDENTURE dated as of January 31, 2007 among MASTEC, INC., a Florida corporation (the
Company or Issuer), the Initial Subsidiary Guarantors (as defined herein) and
U.S. Bank National Association, a national banking association, as Trustee.
W I T N E S S E T H
WHEREAS, the Company has duly authorized the creation of an issue of $150,000,000 aggregate
principal amount of 7 5/8% Senior Notes due 2017 (the Initial Notes); and
WHEREAS, the Company and each of the Initial Subsidiary Guarantors has duly authorized the
execution and delivery of this Indenture;
NOW, THEREFORE, the Company, the Subsidiary Guarantors and the Trustee agree as follows for
the benefit of each other and for the equal and ratable benefit of the Holders of the Notes.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
144A Global Note means a Global Note substantially in the form of Exhibit A hereto
bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of,
and registered in the name of, the Depositary or its nominee that will be issued in a denomination
equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.
Acquired Indebtedness means Indebtedness of a Person existing at the time such
Person becomes a Restricted Subsidiary or is merged into the Issuer or a Restricted Subsidiary, or
Indebtedness of a Restricted Subsidiary assumed in connection with an Asset Acquisition by such
Restricted Subsidiary; provided such Indebtedness was not Incurred in connection with or in
contemplation of such Person becoming a Restricted Subsidiary or such Asset Acquisition.
Additional Interest means all Additional Interest then owing pursuant to the
Registration Rights Agreement.
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.
Adjusted Consolidated Net Income means, for any period, the aggregate net income (or
loss) of the Company and its Restricted Subsidiaries for such period determined in
conformity with GAAP; provided that the following items shall be excluded in computing
Adjusted Consolidated Net Income (without duplication):
(1) the net income (or loss) of any Person that is not a Restricted Subsidiary;
(2) solely for purposes of calculating the amount of Restricted Payments that may be
made pursuant to Section 4.06(a)(C) hereof, the net income (or loss) of any Person accrued
prior to the date it becomes a Restricted Subsidiary or is merged into or consolidated with
the Company or any of its Restricted Subsidiaries or all or substantially all of the
property and assets of such Person are acquired by the Company or any of its Restricted
Subsidiaries;
(3) the net income of any Restricted Subsidiary to the extent that the declaration or
payment of dividends or similar distributions by such Restricted Subsidiary of such net
income is not at the time permitted by the operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Restricted Subsidiary, provided, that solely for purposes of determining
whether Indebtedness may be Incurred under Section 4.08(b) hereof, the net income of any
Subsidiary Guarantor shall not be excluded pursuant to this clause (3);
(4) any gains or losses (on an after-tax basis) attributable to sales of assets outside
the ordinary course of business of the Company and its Restricted Subsidiaries;
(5) non-cash charges relating to employee benefit or other management compensation
plans of the Company or any of its Restricted Subsidiaries or any non-cash compensation
charge arising from any grant of stock, stock options or other equity-based awards of the
Company or any of its Restricted Subsidiaries (excluding in each case any non-cash charge to
the extent that it represents an accrual of, or reserve for, cash expenses in any future
period or amortization of any prepaid cash expense incurred in a prior period), to the
extent that such non-cash charges are deducted in computing such Adjusted Consolidated Net
Income; provided that such stock, stock options or other equity-based awards can be redeemed
at the option of the holder only for Capital Stock of the Company (other than Disqualified
Stock);
(6) any unusual or non-recurring non-cash gains or losses;
(7) any net unrealized gain or loss (after any offset) in such period (a) resulting
from currency translation gains or losses, including those (i) related to currency
remeasurements of Indebtedness and (ii) resulting from Currency Agreements, (b) resulting
from Interest Rate Agreements or (c) resulting from Commodity Agreements;
(8) solely for purposes of calculating the amount of Restricted Payments that may be
made pursuant to Section 4.06(a)(C), any amount paid or accrued as dividends on preferred
stock of the Company owned by Persons other than the Company and any of its Restricted
Subsidiaries;
(9) all extraordinary gains or extraordinary losses, together with any related
provision for income taxes;
2
(10) the cumulative effect of a change in accounting principles;
(11) income or loss attributable to discontinued operations (including, without
limitation, operations disposed of during such period whether or not such operations were
classified as discontinued); and
(12) any impairment charge or write-off pursuant to Financial Accounting Standard No.
142 and 144.
Affiliate means, as applied to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with, such Person. For
purposes of this definition, control (including, with correlative meanings, the terms
controlling, controlled by and under common control with), as applied to any Person, means
the possession, directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
Agent means any Registrar, co-registrar, Paying Agent or additional paying agent.
Applicable Premium means, with respect to any Note on any redemption date, the
greater of:
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(1) |
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1.0% of the principal amount of the Note; or |
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(2) |
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the excess of: |
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(a) |
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the present value at such redemption date of (i) the redemption
price of the Note at February 1, 2012 (such redemption price being set forth in
the table appearing under Section 3.07(a) hereof) plus (ii) all required
interest payments due on the Note through February 1, 2012 (excluding accrued
but unpaid interest to the redemption date), computed using a discount rate
equal to the Treasury Rate as of such redemption date plus 50 basis points;
over |
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(b) |
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the principal amount of the Note. |
Applicable Procedures means, with respect to any transfer or exchange of or for
beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and
Clearstream that apply to such transfer or exchange.
Asset Acquisition means (1) an investment by the Company or any of its Restricted
Subsidiaries in any other Person pursuant to which such Person shall become a Restricted Subsidiary
or shall be merged into or consolidated with the Company or any of its Restricted Subsidiaries or
(2) an acquisition by the Company or any of its Restricted Subsidiaries of the property and assets
of any Person other than the Company or any of its Restricted Subsidiaries that constitute
substantially all of a division or line of business of such Person.
3
Asset Disposition means the sale or other disposition by the Company or any of its
Restricted Subsidiaries of (1) all or substantially all of the Capital Stock of any Restricted
Subsidiary or (2) all or substantially all of the assets that constitute a division or line of
business of the Company or any of its Restricted Subsidiaries.
Asset Sale means any sale, transfer or other disposition (including by way of merger
or consolidation) in one transaction or a series of related transactions by the Company or any of
its Restricted Subsidiaries to any Person other than the Company or any of its Restricted
Subsidiaries of:
(1) all or any of the Capital Stock of any Restricted Subsidiary,
(2) all or substantially all of the property and assets of an operating unit or
business of the Company or any of its Restricted Subsidiaries, or
(3) any other property and assets of the Company or any of its Restricted Subsidiaries
outside the ordinary course of business of the Company or such Restricted Subsidiary, and
in each case, that is not governed by the provisions of Article 5 of this Indenture; provided
that Asset Sale shall not include:
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(a) |
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sales or other dispositions of inventory, receivables and other
current assets, |
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(b) |
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sales, transfers or other dispositions of assets constituting a
Permitted Investment or Restricted Payment permitted to be made under Section
4.06, |
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(c) |
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sales, transfers or other dispositions of assets with a fair
market value not in excess of $5,000,000 in any transaction or series of
related transactions, |
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(d) |
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any sale, transfer, assignment or other disposition of any
property or equipment that has become damaged, worn out, obsolete or otherwise
unsuitable for use in connection with the business of the Company or its
Restricted Subsidiaries, |
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(e) |
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sales or grants of licenses to use the Companys or any
Restricted Subsidiarys patents, trade secrets, know-how and technology to the
extent that such license does not prohibit the licensor from using the patent,
trade secret, know-how or technology, |
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(f) |
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leases or subleases of a property to the extent not materially
interfering with the business of the Company and its Restricted Subsidiaries,
taken as a whole, |
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(g) |
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sales or contributions of Receivables Assets of the type
specified in the definition of Qualified Receivables Transaction to a
Receivables Entity |
4
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for the fair market value thereof (as determined in good faith by the
Company) in a Qualified Receivables Transaction, |
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(h) |
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transfers of Receivables Assets and related assets of the type
specified in the definition of Qualified Receivables Transaction (or a
fractional undivided interest therein) by a Receivables Entity in a Qualified
Receivables Transaction, |
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(i) |
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the disposition of any securities received in connection with
an Asset Sale by such Person or any of its Restricted Subsidiaries within 90
days of such Asset Sale in order to comply with Section 4.09(a)(2)(E), provided
that the consideration received therefor by such Person is at least equal to
the fair market value thereof, or |
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(j) |
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the sale of the Department of Transportation business. |
Average Life means, at any date of determination with respect to any debt security,
the quotient obtained by dividing (1) the sum of the products of (a) the number of years from such
date of determination to the dates of each successive scheduled principal payment of such debt
security and (b) the amount of such principal payment by (2) the sum of all such principal
payments.
Bankruptcy Law means Title 11, U.S. Code or any similar federal or state law for the
relief of debtors.
Board of Directors means, with respect to any Person, the Board of Directors of such
Person or any duly authorized committee of such Board of Directors. Unless otherwise indicated, the
Board of Directors refers to the Board of Directors of the Company.
Borrowing Base of any Person means the sum of (i) 75% of the net book value (after
allowance for doubtful accounts) of accounts receivable of such Person, excluding any receivables
pledged, sold or otherwise transferred or encumbered in connection with a Qualified Receivables
Transaction, (ii) 50% of the net book value of inventory of such Person, and (iii) 50% of the net
book value of property, plant and equipment of such Person, in each case determined on a
consolidated basis in accordance with GAAP as of the end of the most recently ended month for which
internal financial statements are available; provided that for purposes of calculating the
Borrowing Base of such Person, asset acquisitions and asset dispositions that (x) have been made
after such most recent month for which internal financial statements are available or (y) are made
substantially contemporaneously or in connection with the Incurrence, and upon the application of
the net proceeds, of the Indebtedness giving rise to the calculation of such Borrowing Base by the
Person Incurring such Indebtedness shall be given pro forma effect as if they had occurred
immediately prior to the end of such month.
Broker-Dealer means any broker or dealer registered under the Exchange Act.
Business Day means a day other than a Saturday, Sunday or other day on which banking
institutions are authorized or required by law to close in the state of New York State.
5
Capital Stock means, with respect to any Person, any and all shares, interests,
participations or other equivalents (however designated, whether voting or non-voting) in equity of
such Person, whether outstanding on the Closing Date or issued thereafter, including, without
limitation, all common stock and preferred stock.
Capitalized Lease means, as applied to any Person, any lease of any property
(whether real, personal or mixed) of which the discounted present value of the rental obligations
of such Person as lessee, in conformity with GAAP, is required to be capitalized on the balance
sheet of such Person.
Capitalized Lease Obligations means the discounted present value of the rental
obligations under a Capitalized Lease.
Change of Control means such time as:
(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 Restricted
Subsidiaries, taken as a whole, to any person (within the meaning of Section 13(d) of the
Exchange Act);
(2) the adoption of a plan relating to the liquidation or dissolution of the Company;
(3) a person or group (within the meaning of Sections 13(d) and 14(d)(2) of the
Exchange Act), other than any Existing Stockholder, becomes the ultimate beneficial owner
(as defined in Rule 13d-3 under the Exchange Act) of more than 50% of the total voting power
of the Voting Stock of the Company on a fully diluted basis, and such ownership represents a
greater percentage of the total voting power of the Voting Stock of the Company, on a fully
diluted basis, than is held by the Existing Stockholders on such date;
(4) individuals who on the Closing Date constituted the Board of Directors (together
with any new directors whose election by the Board of Directors or whose nomination by the
Board of Directors for election by the Companys stockholders was approved by a vote of at
least a majority of the members of the Board of Directors then in office who either were
members of the Board of Directors on the Closing Date or whose election or nomination for
election was previously so approved) cease for any reason to constitute a majority of the
members of the Board of Directors then in office; or
(5) the Company consolidates with, or merges with or into, any Person, or any Person
consolidates with, or merges with or into, the Company, in any such event pursuant to a
transaction in which any of the outstanding Voting Stock of the Company or such other Person
is converted into or exchanged for cash, securities or other property, other than any such
transaction where (a) the Voting Stock of the Company outstanding immediately prior to such
transaction is converted into or exchanged for (or continues as) Voting Stock (other than
Disqualified Stock) of the surviving or transferee Person constituting a majority of the
outstanding shares of Voting Stock of such surviving or
6
transferee Person (immediately after giving effect to such issuance) and (b)
immediately after such transaction, no person or group (as defined above), other than
any Existing Stockholder, becomes the ultimate beneficial owner (as defined above) of 50% or
more of the voting power of the Voting Stock of the surviving or transferee Person (unless
the Existing Stockholders beneficially owned an equal or greater percentage of such voting
power of the Voting Stock than such Person).
Clearstream means Clearstream Banking, S.A. and any successor thereto.
Closing Date means January 31, 2007, being the date on which the Notes are
originally issued under this Indenture.
Commodity Agreement means any forward contract, commodity swap agreement, commodity
option agreement or other similar agreement or arrangement (it being acknowledged that oil hedging
is covered by this definition).
Company has the meaning assigned to it in the preamble to this Indenture. All
references to the Company shall include any and all successors thereto.
Consolidated EBITDA means, for any period, Adjusted Consolidated Net Income for such
period plus, to the extent such amount was deducted in calculating such Adjusted Consolidated Net
Income:
(1) Fixed Charges;
(2) income taxes;
(3) depreciation expense;
(4) amortization expense;
(5) the amount of any non-recurring cash charges (which, for avoidance of doubt, shall
include retention, severance, or systems establishment costs), and
(6) all other non-cash items (including non-cash asset impairment charges) reducing
Adjusted Consolidated Net Income (other than items that will require cash payments and for
which an accrual or reserve is, or is required by GAAP to be, made), less all non-cash items
increasing Adjusted Consolidated Net Income, all as determined on a consolidated basis for
the Company and its Restricted Subsidiaries in conformity with GAAP;
provided that, if any Restricted Subsidiary is not a Wholly Owned Restricted Subsidiary,
Consolidated EBITDA shall be reduced (to the extent not otherwise reduced in accordance with GAAP)
by an amount equal to (A) the amount of the Adjusted Consolidated Net Income attributable to such
Restricted Subsidiary multiplied by (B) the percentage ownership interest in the income of such
Restricted Subsidiary not owned on the last day of such period by the Company or any of its
Restricted Subsidiaries.
7
Consolidated Interest Expense means, for any period, the aggregate amount of
interest in respect of Indebtedness (excluding any Indebtedness of a Receivables Entity but
including, without limitation, amortization of original issue discount on any Indebtedness and the
interest portion of any deferred payment obligation, calculated in accordance with the effective
interest method of accounting; all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers acceptance financing; the net cash costs associated with
Interest Rate Agreements; and Indebtedness that is Guaranteed or secured by the Company or any of
its Restricted Subsidiaries); and the interest component of all payments associated with
Capitalized Lease Obligations, in each case, accrued or scheduled to be paid or to be accrued by
the Company and its Restricted Subsidiaries, net of any interest income, during such period;
excluding, however, (1) any amount of such interest of any Restricted Subsidiary if the net income
of such Restricted Subsidiary is excluded in the calculation of Adjusted Consolidated Net Income
pursuant to clause (3) of the definition thereof (but only in the same proportion as the net income
of such Restricted Subsidiary is excluded from the calculation of Adjusted Consolidated Net Income
pursuant to clause (3) of the definition thereof) and (2) any premiums, fees and expenses (and any
amortization thereof) payable in connection with the offering of the Notes or expenses relating to
the repayment of the Existing Notes or the write-off of expenses in connection with any other
repayment or refinancing of Indebtedness, all as determined on a consolidated basis (without taking
into account Unrestricted Subsidiaries) in conformity with GAAP.
Consolidated Net Assets of any Person means, as of any date, the amount which in
accordance with GAAP, would be set forth under the caption Total Assets (or any like caption) on
a consolidated balance sheet of such Person and its Restricted Subsidiaries, as of the end of the
most recently ended fiscal quarter for which financial statements have been filed with the SEC or
provided to the Trustee, less current liabilities.
Corporate Trust Office of the Trustee shall be at the address of the Trustee
specified in Section 13.02 hereof or such other address as to which the Trustee may give notice to
the Company.
Credit Agreement means the Amended and Restated Loan and Security Agreement dated as
of May 10, 2005 by and among the Company, the subsidiaries party thereto, certain lenders names
therein and Bank of America, N.A. as collateral and administrative agent, as amended through the
Closing Date, and all ancillary documents thereto, as such agreement may be amended, modified,
renewed, refunded, replaced or refinanced from time to time.
Credit Facilities means, with respect to the Company and its Restricted
Subsidiaries, one or more debt facilities (including the Credit Agreement), commercial paper
facilities, or indentures providing for revolving credit loans, term, loans, notes or other
financings or letters of credit, or other credit facilities, in each case, as amended, modified,
renewed, refunded, replaced or refinanced from time to time.
Currency Agreement means any foreign exchange contract, currency swap agreement or
other similar agreement or arrangement.
8
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 after notice or passage of time or both would
be, an Event of Default.
Department of Transportation Business means (i) the business of the Company or of
any Restricted Subsidiary consisting of the provision or performance of services and/or the supply
of goods and materials, whether as a contractor, subcontractor or otherwise, to or for the benefit
of the U.S. Department of Transportation (or any successor or related government agency) or any
equivalent state, county, municipal or local government agency; and (ii) the assets, properties and
liabilities of the Company or any Restricted Subsidiary in connection with or related to item (i).
Definitive Note means a certificated Note registered in the name of the Holder
thereof and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A
hereto except that such Note shall not bear the Global Note Legend and shall not have the Schedule
of Exchanges of Interests in the Global Note attached thereto.
Designated Non-Cash Consideration means the fair market value of non-cash
consideration received by the Company or one of its Restricted Subsidiaries in connection with an
Asset Sale that is designated as Designated Non-Cash Consideration pursuant to an Officers
Certificate setting forth the basis of such valuation, less the amount of Temporary Cash
Investments received in connection with a subsequent sale of such Designated Non-Cash
Consideration.
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.
Disqualified Stock means any class or series of Capital Stock of any Person that by
its terms or otherwise is (1) required to be redeemed prior to the date that is 91 days after the
Stated Maturity of the Notes, (2) redeemable at the option of the holder of such class or series of
Capital Stock at any time prior to the date that is 91 days after the Stated Maturity of the Notes
or (3) convertible into, or exchangeable for, at the option of the holder, Capital Stock referred
to in clause (1) or (2) above or Indebtedness having a scheduled maturity prior to the date that is
91 days after the Stated Maturity of the Notes; provided that any Capital Stock that would not
constitute Disqualified Stock but for provisions thereof giving holders thereof the right to
require such Person to repurchase or redeem such Capital Stock upon the occurrence of an asset
sale or change of control occurring prior to the date that is 91 days after the Stated Maturity
of the Notes shall not constitute Disqualified Stock if the asset sale or change of control
provisions applicable to such Capital Stock are no more favorable to the holders of such Capital
Stock than the provisions contained in Section 4.09 and Section 4.13 hereof and such Capital Stock
specifically provides that such Person shall not repurchase or redeem any such stock pursuant to
such provision prior to the Companys repurchase of such Notes as are required to be repurchased
pursuant to Section 4.09 and Section 4.13.
9
Domestic Subsidiary means any Subsidiary of the Company that is not a Foreign
Subsidiary.
Euroclear means Euroclear Bank, S.A./N.V., as operator of the Euroclear system, and
any successor thereto.
Exchange Act means the United States Securities Exchange Act of 1934, as amended.
Exchange Notes means the Notes issued in the Exchange Offer pursuant to Section
2.06(f) hereof.
Exchange Offer has the meaning set forth in the Registration Rights Agreement.
Exchange Offer Registration Statement has the meaning set forth in the Registration
Rights Agreement.
Existing Notes means the Series B 7 3/4% Senior Subordinated Notes due 2008 of the
Company outstanding prior to the repayment thereof with the proceeds of the sale on the Closing
Date of the Notes.
Existing Stockholders means (a) the estate of Jorge L. Mas, Jorge Mas and any spouse
or lineal descendant of Jorge L. Mas or Jorge Mas or any spouse of any such lineal descendant and
(b) any trust, corporation, partnership or other entity, the beneficiaries, stockholders, partners,
owners or Persons beneficially holding an 80% or more controlling interest of which consist of the
Persons referred to in clause (a).
fair market value means the price that would be paid in an arms-length transaction
between an informed and willing seller under no compulsion to sell and an informed and willing
buyer under no compulsion to buy, as determined in good faith by the Board of Directors, whose
determination shall be conclusive if evidenced by a resolution of the Board of Directors.
Fixed Charge Coverage Ratio means, for any Person on any Transaction Date, the ratio
of (1) the aggregate amount of Consolidated EBITDA for the then most recent four fiscal quarters
prior to such Transaction Date for which internal financial statements are available (the Four
Quarter Period) to (2) the aggregate Fixed Charges during such Four Quarter Period. In making
the foregoing calculation:
(A) pro forma effect shall be given to any Indebtedness (other than ordinary revolver
drawings) Incurred or repaid during the period (the Reference Period) commencing
on the first day of the Four Quarter Period and ending on the Transaction Date, in each
case, as if such Indebtedness had been Incurred or repaid on the first day of such Reference
Period;
(B) Consolidated Interest Expense attributable to interest on any Indebtedness (whether
existing or being Incurred) computed on a pro forma basis and bearing a
10
floating interest rate shall be computed as if the rate in effect on the Transaction
Date (taking into account any Interest Rate Agreement applicable to such Indebtedness if
such Interest Rate Agreement has a remaining term in excess of 12 months or, if shorter, at
least equal to the remaining term of such Indebtedness) had been the applicable rate for the
entire period;
(C) pro forma effect shall be given to Asset Dispositions and Asset Acquisitions
(including giving pro forma effect to the application of proceeds of any Asset Disposition)
that occur during such Reference Period as if they had occurred and such proceeds had been
applied on the first day of such Reference Period; and
(D) pro forma effect shall be given to asset dispositions and asset acquisitions
(including giving pro forma effect to the application of proceeds of any asset disposition)
that have been made by any Person that has become a Restricted Subsidiary or has been merged
with or into the Company or any Restricted Subsidiary during such Reference Period and that
would have constituted Asset Dispositions or Asset Acquisitions had such transactions
occurred when such Person was a Restricted Subsidiary as if such asset dispositions or asset
acquisitions were Asset Dispositions or Asset Acquisitions that occurred on the first day of
such Reference Period; provided that to the extent that clause (C) or (D) of this definition
requires that pro forma effect be given to an Asset Acquisition or Asset Disposition, such
pro forma calculation shall be based upon the four full fiscal quarters immediately
preceding the Transaction Date of the Person, or division or line of business of the Person,
that is acquired or disposed for which financial information is available.
Pro forma calculations in connection with the foregoing calculation shall be determined in
accordance with Regulation S-X under the Securities Act; provided, however, that such pro forma
calculations may include operating expense reductions (net of any related operating expense
increases) for such period resulting from the transaction which is being given pro forma effect
that have been realized or for which the steps necessary for realization have been taken, or with
respect to which it is probable that they will be taken within 180 days following any such
transaction, provided that it is probable that such operating expense reductions are sustainable
over the long term; provided, further, that in either case, the Companys chief financial officer
and another officer sign and deliver to the trustee an Officers Certificate certifying (i) the
specific actions taken or to be taken, (ii) the amount of such adjustment or adjustments resulting
from such actions, (iii) that such adjustment or adjustments are based on the reasonable good faith
beliefs of the officers executing such Officers Certificate at the time of such execution and (iv)
that any related Incurrence of Indebtedness is permitted pursuant to this Indenture.
Fixed Charges means, with respect to any Person for any period, the sum, without
duplication, of:
(1) Consolidated Interest Expense plus
(2) the product of (x) the amount of all dividend payments on any series preferred
stock of such Person or any of its Restricted Subsidiaries (other than dividends payable
solely in Capital Stock of such Person or such Restricted Subsidiary (other than
11
Disqualified Stock) or to such Person or a Restricted Subsidiary of such Person) paid,
accrued or scheduled to be paid or accrued during such period times (y) a fraction, the
numerator of which is one and the denominator of which is one minus the then current
effective consolidated federal, state and local income tax rate of such Person, expressed as
a decimal, as determined on a consolidated basis in accordance with GAAP.
Foreign Subsidiary means any Subsidiary of the Companys that is an entity which is
a controlled foreign corporation under Section 957 of the Internal Revenue Code.
GAAP means generally accepted accounting principles in the United States of America
as in effect as of the Closing Date as determined by the Public Company Accounting Oversight Board.
All ratios and computations contained or referred to in this Indenture shall be computed in
conformity with GAAP applied on a consistent basis.
Global Note Legend means the legend set forth in Section 2.06(g)(2) hereof, which is
required to be placed on all Global Notes issued under this Indenture.
Global Notes means, individually and collectively, each of the Restricted Global
Notes and the Unrestricted Global Notes deposited with or on behalf of and registered in the name
of the Depository or its nominee, substantially in the form of Exhibit A hereto and that bears the
Global Note Legend and that has the Schedule of Exchanges of Interests in the Global Note
attached thereto, issued in accordance with Section 2.01, 2.06(b)(3), 2.06(b)(4), 2.06(d)(2),
2.06(d)(3) or 2.06(f) hereof.
Guarantee means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Indebtedness of any other Person and, without limiting the generality
of the foregoing, 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 agreements to
keep-well, to purchase assets, goods, securities or services (unless such purchase arrangements are
on arms-length terms and are entered into in the normal course of business), 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 that the term Guarantee
shall not include endorsements for collection or deposit in the normal course of business or
Standard Receivables Undertakings in a Qualified Receivables Transaction. The term Guarantee used
as a verb has a corresponding meaning.
Holder means a holder of any Notes.
IAI Global Note means a Global Note substantially in the form of Exhibit A hereto
bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of
and registered in the name of the Depositary or its nominee that shall be issued in a denomination
equal to the outstanding principal amount of the Notes sold to Institutional Accredited Investors.
Incur means, with respect to any Indebtedness, to incur, create, issue, assume,
Guarantee or otherwise become liable for or with respect to, or become responsible for, the
12
payment of, contingently or otherwise, such Indebtedness; provided that (1) any Indebtedness
of a Person existing at the time such Person becomes a Restricted Subsidiary shall be deemed to be
incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary and (2)
neither the accrual of interest nor the accretion of original issue discount nor the payment of
interest in the form of additional Indebtedness (to the extent provided for when the Indebtedness
on which such interest is paid was originally issued) shall be considered an Incurrence of
Indebtedness.
Indebtedness means, with respect to any Person at any date of determination (without
duplication):
(1) all indebtedness of such Person for borrowed money;
(2) all obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(3) all obligations of such Person in respect of letters of credit or other similar
instruments (including reimbursement obligations with respect thereto, but excluding
obligations with respect to letters of credit (including trade letters of credit) securing
obligations (other than obligations described in clauses (1) or (2) above or (5), (6) or (7)
below in this definition) entered into in the normal course of business of such Person to
the extent such letters of credit are not drawn upon or, if drawn upon, to the extent such
drawing is reimbursed no later than the third Business Day following receipt by such Person
of a demand for reimbursement);
(4) all obligations of such Person to pay the deferred and unpaid purchase price of
property or services, which purchase price is due more than six months after the date of
placing such property in service or taking delivery and title thereto or the completion of
such services, except Trade Payables;
(5) all Capitalized Lease Obligations;
(6) all Indebtedness of other Persons secured by a Lien on any asset of such Person,
whether or not such Indebtedness is assumed by such Person; provided that the amount of such
Indebtedness shall be the lesser of (A) the fair market value of such asset at such date of
determination and (B) the amount of such Indebtedness;
(7) all Indebtedness of other Persons Guaranteed by such Person to the extent such
Indebtedness is Guaranteed by such Person;
(8) to the extent not otherwise included in this definition, obligations of such Person
under Commodity Agreements, Currency Agreements and Interest Rate Agreements (other than
Commodity Agreements, Currency Agreements and Interest Rate Agreements designed solely to
protect the Company or its Restricted Subsidiaries against fluctuations in commodity prices,
foreign currency exchange rates or interest rates and that do not increase the Indebtedness
of the obligor outstanding at any time other than as a result of fluctuations in commodity
prices, foreign currency exchange rates or interest rates or by reason of fees, indemnities
and compensation payable thereunder) with the
13
amount of Indebtedness represented being equal to the net amount payable if such
obligations were terminated at that time due to default by such Person (after giving effect
to any contractually permitted set-off); and
(9) all Disqualified Stock issued by such Person with the amount of Indebtedness
represented by such Disqualified Stock being equal to the greater of its voluntary or
involuntary liquidation preference and its maximum fixed repurchase price, but excluding
accrued dividends, if any.
The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date
of all unconditional obligations as described above and, with respect to contingent obligations,
the maximum liability upon the occurrence of the contingency giving rise to the obligation,
provided that:
(A) the amount outstanding at any time of any Indebtedness issued with original issue
discount is the face amount of such Indebtedness less the remaining unamortized portion of
the original issue discount of such Indebtedness at such time as determined in conformity
with GAAP;
(B) money borrowed and set aside at the time of the Incurrence of any Indebtedness in
order to prefund the payment of the interest on such Indebtedness shall not be deemed to be
Indebtedness so long as such money is held to secure the payment of such interest; and
(C) Indebtedness shall not include:
(v) any liability for federal, state, local or other taxes,
(w) workers compensation claims or obligations, performance, surety, appeal or
similar bonds or completion guarantees, in each case provided in the normal course
of business,
(x) indebtedness arising from agreements providing for non-competition
payments, earn-out payments, indemnification or adjustments of purchase prices or
from guarantees or letters of credit securing any obligations of the Company or any
of its Subsidiaries pursuant to such agreements, incurred or assumed in connection
with the acquisition or disposition of any business, assets or Subsidiary of the
Company, other than guarantees or similar credit support by the Company or any of
its Subsidiaries of indebtedness incurred by any Person acquiring all or any portion
of such business, assets or Subsidiary for the purpose of financing such
acquisition,
(y) obligations arising from Guarantees to suppliers, lessors, licensees,
contractors, or customers incurred in the ordinary course of business, or
(z) obligations (other than express Guarantees of indebtedness for borrowed
money) in respect of Indebtedness of other Persons arising in connection with (i)
the sale or discount of accounts receivable, (ii) trade
14
acceptances and (iii) endorsements of instruments for deposit in the ordinary
course of business.
Indenture means this Indenture, as amended or supplemented from time to time.
Indirect Participant means a Person who holds a beneficial interest in a Global Note
through a Participant.
Initial Notes has the meaning assigned to it in the preamble to this Indenture.
Initial Subsidiary Guarantors means each Restricted Subsidiary of the Company (other
than a Foreign Subsidiary or Globetec Construction, LLC) on the Closing Date.
Institutional Accredited Investor means an institution that is an accredited
investor as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who are not also
QIBs.
Interest Rate Agreement means any interest rate protection agreement, interest rate
future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement, option or future contract
or other similar agreement or arrangement.
Investment in any Person means any direct or indirect advance, loan or other
extension of credit (including, without limitation, by way of Guarantee or similar arrangement, but
excluding advances or trade credit to customers, suppliers or joint venture partners in the
ordinary course of business that are, in conformity with GAAP, recorded as accounts receivable,
prepaid expenses or deposits on the balance sheet of the Company or its Restricted Subsidiaries and
endorsements for collection or deposit arising in the ordinary course of business) or capital
contribution to (by means of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any purchase or acquisition of Capital
Stock, bonds, notes, debentures or other similar instruments issued by, such Person and shall
include (1) the designation of a Restricted Subsidiary as an Unrestricted Subsidiary and (2) the
retention of the Capital Stock (or any other Investment) by the Company or any of its Restricted
Subsidiaries of (or in) any Person that has ceased to be a Restricted Subsidiary. For purposes of
the definition of Unrestricted Subsidiary and Section 4.06 hereof, (a) the amount of or a
reduction in an Investment shall be equal to the fair market value thereof at the time such
Investment is made or reduced and (b) in the event the Company or a Restricted Subsidiary makes an
Investment by transferring assets to any Person and as part of such transaction receives Net Cash
Proceeds, the amount of such Investment shall be the fair market value of the assets less the
amount of Net Cash Proceeds so received, provided the Net Cash Proceeds are applied in accordance
with Section 4.09 hereof.
Investment Grade Rating means a rating equal to or higher than Baa3 (or the
equivalent) by Moodys and BBB- (or the equivalent) by S&P.
Legended Regulation S Global Note means a Global Note in the form of Exhibit A
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
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denomination equal to the outstanding principal amount at maturity of the Notes initially sold
in reliance on Rule 903 of Regulation S.
Letter of Transmittal means the letter of transmittal to be prepared by the Company
and sent to all Holders of the Notes for use by such Holders in connection with the Exchange Offer.
Lien means any mortgage, pledge, security interest, encumbrance, lien or charge of
any kind (including, without limitation, any conditional sale or other title retention agreement or
lease in the nature thereof or any agreement to give any security interest).
Moodys means Moodys Investors Service, Inc. and its successors.
Net Cash Proceeds means:
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(a) |
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with respect to any Asset Sale, the proceeds of such Asset Sale in the form of
cash or Temporary Cash Investments, including payments in respect of deferred payment
obligations (to the extent corresponding to the principal, but not interest, component
thereof) when received in the form of cash or Temporary Cash Investments and proceeds
from the conversion of other property received when converted to cash or Temporary Cash
Investments, net of |
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(1) |
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brokerage commissions and other fees and expenses (including
fees and expenses of counsel and investment bankers and any relocation expenses
incurred as a result thereof) related to such Asset Sale; |
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(2) |
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provisions for all taxes (whether or not such taxes will
actually be paid or are payable) as a result of such Asset Sale without regard
to the consolidated results of operations of the Company and its Restricted
Subsidiaries, taken as a whole; |
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(3) |
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payments made to repay Indebtedness or any other obligation
outstanding at the time of such Asset Sale that either (x) is secured by a Lien
on the property or assets sold or (y) is required to be paid as a result of
such sale; and |
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(4) |
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appropriate amounts to be provided by the Company or any
Restricted Subsidiary as a reserve against any liabilities associated with such
Asset Sale, including, without limitation, pension and other post-employment
benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Asset
Sale, all as determined in conformity with GAAP; and |
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(b) |
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with respect to any issuance or sale of Capital Stock, the proceeds of such
issuance or sale in the form of cash or Temporary Cash Investments, including payments
in respect of deferred payment obligations (to the extent corresponding to the
principal, but not interest, component thereof) when received in the form of cash or
Temporary Cash Investments and proceeds from the conversion of other |
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property received when converted to cash or Temporary Cash Investments, net of
attorneys fees, accountants fees, underwriters or placement agents fees,
discounts or commissions and brokerage, consultant and other fees incurred in
connection with such issuance or sale and net of taxes paid or payable as a result
thereof. |
Non-U.S. Person means a Person who is not a U.S. Person.
Note Guarantee means any Guarantee of the obligations of the Company under this
Indenture and the Notes by any Subsidiary Guarantor.
Notes means (a) the Initial Notes, (b) any Additional Notes that may be issued after
the date hereof and (c) if and when issued pursuant to the Registration Rights Agreement, the
Companys Exchange Notes issued in the Exchange Offer in exchange for any outstanding Initial Notes
or Additional Notes. The Initial Notes, any Additional Notes and any Exchange Notes shall be
treated as a single class for all purposes under this Indenture, and unless the context otherwise
requires, all references to the Notes shall include the Initial Notes, any Additional Notes and any
Exchange Notes.
Offer to Purchase means an offer to purchase Notes by the Company from the Holders
commenced by mailing a notice to the Trustee and each Holder stating:
(1) the provision of this Indenture pursuant to which the offer is being made and that
all Notes validly tendered shall be accepted for payment on a pro rata basis;
(2) the purchase price and the date of purchase, which shall be a Business Day no
earlier than 30 days nor later than 60 days from the date such notice is mailed (the
Payment Date);
(3) that any Note not tendered shall continue to accrue interest pursuant to its terms;
(4) that, unless the Company defaults in the payment of the purchase price, any Note
accepted for payment pursuant to the Offer to Purchase shall cease to accrue interest on and
after the Payment Date;
(5) that Holders electing to have a Note purchased pursuant to the Offer to Purchase
shall be required to surrender the Note, together with the form entitled Option of the
Holder to Elect Purchase on the reverse side of the Note completed, to the Paying Agent at
the address specified in the notice prior to the close of business on the Business Day
immediately preceding the Payment Date;
(6) that Holders shall be entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the third Business Day immediately
preceding the Payment Date, a telegram, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Notes delivered for purchase and a statement
that such Holder is withdrawing his election to have such Notes purchased; and
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(7) that Holders whose Notes are being purchased only in part shall be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered; provided that
each Note purchased and each new Note issued shall be in a principal amount of $1,000 or
integral multiples of $1,000.
On the Payment Date, the Company shall (a) accept for payment on a pro rata basis Notes or
portions thereof tendered pursuant to an Offer to Purchase; (b) deposit with the Paying Agent money
sufficient to pay the purchase price of all Notes or portions thereof so accepted; and (c) deliver,
or cause to be delivered, to the Trustee all Notes or portions thereof so accepted together with an
Officers Certificate specifying the Notes or portions thereof accepted for payment by the Company.
The Paying Agent shall promptly mail to the Holders of Notes so accepted payment in an amount equal
to the purchase price, and the Trustee shall promptly authenticate and mail to such Holders a new
Note equal in principal amount to any unpurchased portion of the Note surrendered; provided that
each Note purchased and each new Note issued shall be in a principal amount of $1,000 or integral
multiples of $1,000. The Company shall publicly announce the results of an Offer to Purchase as
soon as practicable after the Payment Date. The Trustee shall act as the Paying Agent for an Offer
to Purchase. The Company shall comply with Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder, to the extent such laws and regulations are applicable,
in the event that the Company is required to repurchase Notes pursuant to an Offer to Purchase. To
the extent that the provisions of any securities laws or regulations conflict with the provisions
of this Indenture relating to an Offer to Purchase, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its obligations under such
provisions of this Indenture by virtue of such conflict.
Offering Memorandum means that certain offering memorandum, dated January 24, 2007,
relating to the offering of the Initial Notes issued on the Closing Date.
Officer means, with respect to any Person, the Chairman of the Board, the Chief
Executive Officer, the President, any Vice President, the Chief Financial Officer, the Controller,
the Treasurer or the Secretary of such Person.
Officers Certificate means a certificate signed by two Officers of the Company or
of any Subsidiary Guarantor, as applicable. One of the officers executing an Officers Certificate
in accordance with Section 4.04 shall be the Chief Executive Officer, Chief Financial Officer or
Chief Operating Officer of the Company.
Opinion of Counsel means an opinion from legal counsel that meets the requirements
of Section 13.05 hereof. The counsel may be an employee of or counsel to the Company or any
Subsidiary of the Company.
Participant means, with respect to the Depositary, Euroclear or Clearstream, a
Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with
respect to DTC, shall include Euroclear and Clearstream).
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Permitted Business means the business of the Company and its Subsidiaries engaged in
on the date of determination and any other activities that are related, ancillary or complementary
to such business.
Permitted Investment means:
(1) an Investment in the Company or a Restricted Subsidiary or a Person which shall,
upon the making of such Investment, become a Restricted Subsidiary or be merged or
consolidated with or into, or transfer or convey all or substantially all its assets to, the
Company or a Restricted Subsidiary;
(2) Temporary Cash Investments;
(3) payroll, travel and similar advances to cover matters that are expected at the time
of such advances ultimately to be treated as expenses in accordance with GAAP;
(4) stock, obligations or securities received in satisfaction of judgments;
(5) an Investment in an Unrestricted Subsidiary consisting solely of an Investment in
another Unrestricted Subsidiary;
(6) Commodity Agreements, Interest Rate Agreements and Currency Agreements not entered
into for speculative purposes;
(7) loans and advances to employees and officers of the Company and its Restricted
Subsidiaries made in the ordinary course of business not to exceed $2,000,000 in the
aggregate at any one time outstanding;
(8) Investments in securities of trade creditors or customers received:
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(a) |
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pursuant to any plan of reorganization or
similar arrangement upon the bankruptcy or insolvency of such trade
creditors or customers, or |
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(b) |
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in settlement of delinquent obligations of, and
other disputes with, customers, suppliers and others, in each case
arising in the ordinary course of business or otherwise in satisfaction
of a judgment; |
(9) Investments made by the Company or its Restricted Subsidiaries consisting of
consideration received in connection with an Asset Sale made in compliance with Section 4.09
hereof; or
(10) Investments of a Person or any of its Subsidiaries existing at the time such
Person becomes a Restricted Subsidiary of the Company or at the time such Person merges or
consolidates with the Company or any of its Restricted Subsidiaries, in either case, in
compliance with this Indenture; provided that such Investments were not made by such Person
in connection with, or in anticipation or contemplation of, such Person becoming a
Restricted Subsidiary of the Company or such merger or consolidation;
19
(11) repurchases of the Notes;
(12) the acquisition by a Receivables Entity in connection with a Qualified Receivables
Transaction of Capital Stock of a trust or other Person established by such Receivables
Entity to effect such Qualified Receivables Transaction; and any other Investment by the
Company or a Subsidiary of the Company in a Receivables Entity or consisting of purchases of
Receivables Assets pursuant to a Receivables Repurchase Obligation in connection with a
Qualified Receivables Transaction or in the form of any Investment by a Receivables Entity
in any other Person in connection with a Qualified Receivables Transaction, including
Investments of funds held in accounts permitted or required by the arrangement governing
such Qualified Receivables Transaction or any related Indebtedness; provided that such other
Investment is in the form of a Purchase Money Note, contribution of additional Receivables
Assets and/or cash and Temporary Cash Investments or Capital Stock;
(13) Investments in a Person engaged in a Permitted Business in an amount, together
with any other amount outstanding under this clause (13), not to exceed the greater of (a)
$50,000,000 or (b) 10% of the Companys Consolidated Net Assets (with the fair market value
of each such Investment being measured on the date each such Investment was made and without
giving effect to subsequent changes in value);
(14) Investments in existence on the Closing Date;
(15) Investments made with the Capital Stock of an Unrestricted Subsidiary
(16) Investments (i) consisting of installment payments and other obligations in
connection with the Companys acquisition of its 49% equity interest in DirectStar TV LLC in
an amount, together with any other amount outstanding under this clause (16)(i), not to
exceed $8,800,000, and (ii) Investments to fund the working capital of DirectStar TV LLC
pursuant to the terms of the operating agreement governing DirectStar TV LLC as in effect on
the Closing Date; and
(17) other Investments in any Person in an amount, together with any other amount
outstanding under this clause (17), not to exceed $5,000,000 (with the fair market value of
each such Investment being measured on the date each such Investment was made and without
giving effect to subsequent changes in value).
Permitted Liens means:
(1) Liens for taxes, assessments, governmental charges or claims that are being
contested in good faith by appropriate legal proceedings promptly instituted and diligently
conducted and for which a reserve or other appropriate provision, if any, as shall be
required in conformity with GAAP shall have been made;
(2) statutory and common law Liens of landlords and carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen or other similar Liens arising in the ordinary course of
business and with respect to amounts not yet delinquent or being contested in good faith by
appropriate legal proceedings promptly instituted and
20
diligently conducted and for which a reserve or other appropriate provision, if any, as
shall be required in conformity with GAAP shall have been made;
(3) Liens incurred or deposits made in the ordinary course of business in connection
with workers compensation, unemployment insurance and other types of social security;
(4) Liens incurred or deposits made to secure the performance of tenders, bids, leases,
statutory or regulatory obligations, bankers acceptances, surety and appeal bonds,
government contracts, performance and return-of-money bonds and other obligations of a
similar nature incurred in the ordinary course of business (exclusive of obligations for the
payment of borrowed money);
(5) easements, rights-of-way, municipal and zoning ordinances and similar charges,
encumbrances, title defects or other irregularities that do not materially interfere with
the ordinary course of business of the Company or any of its Restricted Subsidiaries;
(6) leases or subleases granted to others that do not materially interfere with the
ordinary course of business of the Company and its Restricted Subsidiaries, taken as a
whole;
(7) Liens encumbering property or assets under construction arising from progress or
partial payments by a customer of the Company or its Restricted Subsidiaries relating to
such property or assets;
(8) any Lien of a lessor in the property subject to any Capitalized Lease or operating
lease;
(9) Liens arising from filing Uniform Commercial Code financing statements regarding
leases;
(10) Liens on property of, or on shares of Capital Stock or Indebtedness of, any Person
existing at the time such Person becomes, or becomes a part of, any Restricted Subsidiary;
provided that such Liens do not extend to or cover any property or assets of the Company or
any Restricted Subsidiary other than the property or assets acquired;
(11) Liens in favor of the Company or any Restricted Subsidiary;
(12) Liens arising from the rendering of a final judgment or order against the Company
or any Restricted Subsidiary that does not give rise to an Event of Default;
(13) Liens securing reimbursement obligations with respect to letters of credit that
encumber documents and other property relating to such letters of credit and the products
and proceeds thereof;
(14) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;
21
(15) Liens encumbering customary initial deposits and margin deposits, and other Liens
that are within the general parameters customary in the industry and incurred in the
ordinary course of business, in each case, securing Indebtedness under Interest Rate
Agreements, Currency Agreements or Commodity Agreements designed solely to protect the
Company or any of its Restricted Subsidiaries from fluctuations in interest rates,
currencies or the price of commodities;
(16) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business in accordance with the past practices of the
Company and its Restricted Subsidiaries prior to the Closing Date;
(17) (Liens on shares of Capital Stock of any Unrestricted Subsidiary to secure
Indebtedness of such Unrestricted Subsidiary;
(18) Liens on or sales of receivables;
(19) Liens on assets of the Company, any Subsidiary of the Company or a Receivables
Entity incurred in connection with a Qualified Receivables Transaction; and
(20) Liens in favor of governmental bodies to secure, advance or progress payments
pursuant to any contract or statute and Liens in favor of governmental bodies in connection
with industrial revenue, pollution control, private activity bonds or similar financing.
Person means any individual, corporation, partnership, joint venture, association,
joint stock company, trust, unincorporated organization, limited liability company or government or
other entity.
Placement Agent means Morgan Stanley & Co. Incorporated.
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.
Purchase Money Note means a promissory note of a Receivables Entity evidencing a
line of credit, which may be irrevocable, from the Company or any Subsidiary of the Company to a
Receivables Entity in connection with a Qualified Receivables Transaction, which note is intended
to finance that portion of the purchase price that is not paid in cash or a contribution of equity
and which (a) shall be repaid from cash available to the Receivables Entity, other than (i) amounts
required to be established as reserves, (ii) amounts paid to investors in respect of interest,
(iii) principal and other amounts owing to such investors and (iv) amounts paid in connection with
the purchase of newly generated receivables and (b) may be subordinated to the payments described
in clause (a).
QIB means a qualified institutional buyer as defined in Rule 144A.
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Qualified Receivables Transaction means any transaction or series of transactions
entered into by the Company or any of its Subsidiaries pursuant to which the Company or any of its
Subsidiaries sells, conveys or otherwise transfers to (1) a Receivables Entity (in the case of a
transfer by the Company or any of its Subsidiaries) or (2) any other Person (in the case of a
transfer by a Receivables Entity), or transfers an undivided interest in or grants a security
interest in, any Receivables Assets (whether now existing or arising in the future) of the Company
or any of its Subsidiaries.
Rating Agencies means Moodys and S&P.
Receivables Assets means any accounts receivable and any assets related thereto,
including, without limitation, all collateral securing such assets, all contracts and contract
rights and all guarantees or other obligations (including hedging obligations) in respect of such
assets and all proceeds of the foregoing and other assets which are customarily transferred, or in
respect of which security interests are customarily granted, in connection with asset
securitization transactions involving Receivables Assets.
Receivables Entity means a Subsidiary of the Company (or another Person formed for
the purposes of engaging in a Qualified Receivables Transaction in which the Company or any of its
Subsidiaries makes an Investment and to which the Company or any of its Subsidiaries transfers
Receivables Assets) which engages in no activities other than in connection with the financing of
Receivables Assets of the Company or its Subsidiaries, and any business or activities incidental or
related to such business, and which is designated by the Board of Directors of the Company or of
such other Person (as provided below) to be a Receivables Entity (a) no portion of the Indebtedness
or any other Obligations (contingent or otherwise) of which (1) is guaranteed by the Company or any
Subsidiary of the Company (excluding guarantees of Obligations (other than the principal of, and
interest on, Indebtedness) pursuant to Standard Receivables Undertakings), (2) is recourse to or
obligates the Company or any Subsidiary of the Company in any way other than pursuant to Standard
Receivables Undertakings or (3) subjects any property or asset of the Company or any Subsidiary of
the Company (other than Receivables Assets and related assets as provided in the definition of
Qualified Receivables Transaction), directly or indirectly, contingently or otherwise, to the
satisfaction thereof other than pursuant to Standard Receivables Undertakings, (b) with which
neither the Company nor any Subsidiary of the Company has any material contract, agreement,
arrangement or understanding (other than on terms which the Company reasonably believes to be no
less favorable to the Company or such Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company) other than fees payable in the ordinary course of
business in connection with servicing Receivables Assets, and (c) with which neither the Company
nor any Subsidiary of the Company has any obligation to maintain or preserve such entitys
financial condition or cause such entity to achieve certain levels of operating results. Any such
designation by the Board of Directors of the Company or of such other Person shall be evidenced to
the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors
of the Company or of such other Person giving effect to such designation, together with an
Officers Certificate certifying that such designation complied with the foregoing conditions.
23
Receivables Fees means all yield, interest or other payments made directly or by
means of discounts with respect to any interest issued or sold in connection with, and other fees
paid to a Person that is not a Receivables Entity in connection with, any Qualified Receivables
Transaction.
Receivables Repurchase Obligation means any obligation of a seller of Receivables
Assets in a Qualified Receivables Transaction to repurchase Receivables Assets arising as a result
of a breach of a Standard Receivables Undertaking, including as a result of a Receivables Asset or
portion thereof becoming subject to any asserted defense, dispute, off set or counterclaim of any
kind as a result of any action taken by, any failure to take action by or any other event relating
to the seller.
Registration Rights Agreement means the registration rights agreement dated as of
the Closing Date among the Company, the Subsidiary Guarantors and the Placement Agent.
Regulation S means Regulation S promulgated under the Securities Act.
Regulation S Global Note means a Legended Regulation S Global Note or an Unlegended
Regulation S Global Note, as appropriate.
Replacement Assets means, on any date, property or assets (other than current
assets) of a nature or type or that are used in a Permitted Business (or an Investment in a
Permitted Business).
Responsible Officer, when used with respect to the Trustee, means any officer within
the Corporate Trust Administration of the Trustee (or any successor group of the Trustee) having
direct responsibility for the administration of this Indenture and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
Restricted Definitive Note means a Definitive Note bearing the Private Placement
Legend.
Restricted Global Note means a Global Note bearing the Private Placement Legend.
Restricted Period means the 40-day distribution compliance period as defined in
Regulation S.
Restricted Subsidiary means any Subsidiary of the Company other than 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.
24
Rule 904 means Rule 904 promulgated under the Securities Act.
S&P means Standard & Poors Ratings Group, a division of The McGraw-Hill Companies,
and its successors.
SEC means the United States Securities and Exchange Commission or any successor
agency.
Securities Act means the United States Securities Act of 1933, as amended.
Shelf Registration Statement means the Shelf Registration Statement as defined in
the Registration Rights Agreement.
Significant Subsidiary means, at any date of determination, any Restricted
Subsidiary that, together with its Subsidiaries, (1) for the most recent fiscal year of the
Company, accounted for more than 10% of the consolidated revenues of the Company and its Restricted
Subsidiaries or (2) as of the end of such fiscal year, was the owner of more than 10% of the
consolidated assets of the Company and its Restricted Subsidiaries, all as set forth on the most
recently available consolidated financial statements of the Company for such fiscal year.
Standard Receivables Undertakings means representations, warranties, covenants and
indemnities entered into by the Company or any Subsidiary of the Company which are customary in a
Qualified Receivables Transaction, including, without limitation, those relating to the servicing
of the assets of a Receivables Entity, it being understood that any Receivables Repurchase
Obligation that are customary in a Qualified Receivables Transaction shall be deemed to be a
Standard Receivables Undertaking.
Stated Maturity means, (1) with respect to any debt security, the date specified in
such debt security as the fixed date on which the final installment of principal of such debt
security is due and payable and (2) with respect to any scheduled installment of principal of or
interest on any debt security, the date specified in such debt security as the fixed date on which
such installment is due and payable.
Subsidiary means, with respect to any Person, any corporation, association or other
business entity of which more than 50% of the voting power of the outstanding Voting Stock is
owned, directly or indirectly, by such Person and one or more other Subsidiaries of such Person.
Subsidiary Guarantor means any Initial Subsidiary Guarantor and any other Restricted
Subsidiary of the Company which provides a Note Guarantee of the Companys obligations under this
Indenture and the Notes pursuant to Section 4.15 hereof.
Temporary Cash Investment means any of the following:
(1) direct obligations of the United States of America or any agency thereof or
obligations fully and unconditionally guaranteed by the United States of America or any
agency thereof, in each case, maturing within one year unless such obligations are
25
deposited by the Company (x) to defease any Indebtedness or (y) in a collateral or
escrow account or similar arrangement to prefund the payment of interest on any
indebtedness;
(2) time deposit accounts, certificates of deposit and money market deposits maturing
within 180 days of the date of acquisition thereof issued by a bank or trust company which
is organized under the laws of the United States of America, any state thereof or any
foreign country recognized by the United States of America, and which bank or trust company
has capital, surplus and undivided profits aggregating in excess of $100,000,000 (or the
foreign currency equivalent thereof) and has outstanding debt which is rated with a Thomson
Bank Watch ranking of B or better or is rated A (or such similar equivalent rating) or
higher by at least one nationally recognized statistical rating organization (as defined in
Rule 436 under the Securities Act) or any money market fund sponsored by a registered broker
dealer or mutual fund distributor;
(3) repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in clause (1) above entered into with a bank or trust
company meeting the qualifications described in clause (2) above;
(4) commercial paper, maturing not more than one year after the date of acquisition,
issued by a corporation (other than an Affiliate of the Company) organized and in existence
under the laws of the United States of America, any state thereof or any foreign country
recognized by the United States of America with a rating at the time as of which any
investment therein is made of P-1 (or higher) according to Moodys or A-1 (or higher)
according to S&P;
(5) securities with maturities of six months or less from the date of acquisition
issued or fully and unconditionally guaranteed by any state, commonwealth or territory of
the United States of America, or by any political subdivision or taxing authority thereof,
and rated at least A by S&P or Moodys; and
(6) any mutual fund that has at least 95% of its assets continuously invested in
investments of the types described in clauses (1) through (5) above.
TIA means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).
Trade Payables means, with respect to any Person, any accounts payable or any other
indebtedness or monetary obligation to trade creditors created, assumed or Guaranteed by such
Person or any of its Subsidiaries arising in the ordinary course of business in connection with the
acquisition of goods or services.
Transaction Date means, respect to the Incurrence of any Indebtedness, the date such
Indebtedness is to be Incurred and, with respect to any Restricted Payment, the date such
Restricted Payment is to be made.
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
26
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 February 1, 2012; provided, however,
that if the period from the redemption date to February 1, 2012 is less than one year, the weekly
average yield on actually traded United States Treasury securities adjusted to a constant maturity
of one year shall be used.
Trustee means U.S. Bank National Association, a national banking association, until
a successor replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
Unlegended Regulation S Global Note means a permanent Global Note in the form of
Exhibit A bearing the Global Note Legend, deposited with or on behalf of and registered in the name
of the Depositary or its nominee and issued upon expiration of the Restricted Period.
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 (1) any Subsidiary of the Company that at the time of
determination shall be designated an Unrestricted Subsidiary by the Board of Directors in the
manner provided below and (2) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors
may designate any Restricted Subsidiary (including any newly acquired or newly formed Subsidiary of
the Company) to be an Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of, or
owns or holds any Lien on any property of, the Company or any Restricted Subsidiary; provided that
(A) any Guarantee by the Company or any Restricted Subsidiary of any Indebtedness of the Subsidiary
being so designated shall be deemed an Incurrence of such Indebtedness and an Investment by the
Company or such Restricted Subsidiary (or both, if applicable) at the time of such designation; (B)
either (I) the Subsidiary to be so designated has total assets of $1,000 or less or (II) if such
Subsidiary has assets greater than $1,000, such designation would be permitted under Section 4.06
and (C) if applicable, the Incurrence of Indebtedness and the Investment referred to in clause (A)
of this proviso would be permitted under Section 4.08 and Section 4.06 hereof. The Board of
Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that
(a) no Default or Event of Default shall have occurred and be continuing at the time of or after
giving effect to such designation and (b) all Liens and Indebtedness of such Unrestricted
Subsidiary outstanding immediately after such designation would, if Incurred at such time, have
been permitted to be Incurred (and shall be deemed to have been Incurred) for all purposes of this
Indenture. Any such designation by the Board of Directors shall be evidenced to the Trustee by
promptly filing with the Trustee a copy of the Board Resolution giving effect to such designation
and an Officers Certificate certifying that such designation complied with the foregoing
provisions.
U.S. Government Obligations means securities that are (1) direct obligations of the
United States of America for the payment of which its full faith and credit is pledged or (2)
obligations of a Person controlled or supervised by and acting as an agency or instrumentality of
27
the United States of America the payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either case, are not
callable or redeemable at the option of the Company thereof at any time prior to the Stated
Maturity of the Notes, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a specific payment of
interest on or principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt.
U.S. Person means a U.S. Person as defined in Rule 902(k) promulgated under the
Securities Act.
Voting Stock means with respect to any Person, Capital Stock of any class or kind
ordinarily having the power to vote for the election of directors, managers or other voting members
of the governing body of such Person.
Wholly Owned means, with respect to any Subsidiary of any Person, the ownership of
all of the outstanding Capital Stock of such Subsidiary (other than any directors qualifying
shares or Investments by foreign nationals mandated by applicable law) by such Person or one or
more Wholly Owned Subsidiaries of such Person.
Section 1.02 Other Definitions.
|
|
|
|
|
Term |
|
Defined in Section |
Authentication Order |
|
|
2.02 |
|
Change of Control Date |
|
|
4.13 |
|
Change of Control Offer |
|
|
4.13 |
|
Change of Control Payment Date |
|
|
4.13 |
|
Covenant Defeasance |
|
|
8.01 |
|
DTC |
|
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2.01 |
|
Event of Default |
|
|
6.01 |
|
Excess Proceeds |
|
|
4.09 |
|
Four Quarter Period |
|
1.01 (Fixed Charge Coverage Ratio) |
Guaranteed Indebtedness |
|
|
4.15 |
|
incorporated provision |
|
|
13.01 |
|
Legal Defeasance |
|
|
8.01 |
|
outstanding |
|
|
8.01 |
|
Pari Passu Indebtedness |
|
|
4.09 |
|
Paying Agent |
|
|
2.03 |
|
Payment Date |
|
1.01 (Offer to Purchase) |
28
|
|
|
|
|
Term |
|
Defined in Section |
Authentication
Order |
|
2.02 |
Reference Period |
|
1.01 (Fixed Charge Coverage Ratio) |
Registrar |
|
|
2.03 |
|
Restricted Payments |
|
|
4.06 |
|
Surviving Person |
|
|
5.01 |
|
Terminated Covenants |
|
|
4.16 |
|
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
indenture securities means the Notes and the Note Guarantees;
indenture security Holder means a Holder of a Note;
indenture to be qualified means this Indenture;
indenture trustee or institutional trustee means the Trustee; and
obligor on the indenture securities means the Company and the Subsidiary
Guarantors, respectively, and any successor obligor upon the indenture securities,
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 by
such definitions.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(iii) or is not exclusive;
(iv) words in the singular include the plural, and words in the plural include the
singular;
29
(iv) words in the singular include the plural, and words in the plural include the
singular;
(v) will shall be interpreted to express a command; and
(vi) 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 2
THE NOTES
Section 2.01 Form and Dating.
(a) General. The Notes and the Trustees certificate of authentication will be substantially
in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by
law, stock exchange rule or usage. Each Note will be dated the date of its authentication. Unless
a Note shall have a zero dollar balance, the Notes shall be in denominations of $1,000 principal
amount 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 Subsidiary Guarantors and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and provisions and to be
bound thereby. However, to the extent any provision of any Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
(b) Global Notes. Notes issued in global form will be substantially in the form of Exhibit A
hereto (including the Global Note Legend thereon and the Schedule of Exchanges of Interests in the
Global Note attached thereto). Notes issued in definitive form will be substantially in the form
of Exhibit A hereto (but without the Global Note Legend thereon and without the Schedule of
Exchanges of Interests in the Global Note attached thereto). Each Global Note will represent such
of the outstanding Notes as will be specified therein and each shall provide that it represents the
aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a
Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby will be made by the Trustee or the Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.06 hereof.
(c) Regulation S Global Notes. Notes offered and sold in reliance on Regulation S shall be
issued initially in the form of the Legended Regulation S Global Note, which shall be deposited on
behalf of the purchasers of the Notes represented thereby with the
Trustee, as custodian for The Depository Trust Company (DTC) in New York, New York,
and registered in the name of the Depositary or the nominee of the Depositary for the accounts of
designated agents holding on behalf of Euroclear or Clearstream, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. Following the termination of the Restricted
Period, beneficial interests in the Legended Regulation S Global Note shall be
30
exchanged for
beneficial interests in Unlegended Regulation S Global Notes pursuant to Section 2.06 and the
Applicable Procedures. Simultaneously with the authentication of Unlegended Regulation S Global
Notes, the Trustee shall cancel the Legended Regulation S Global Note. The aggregate principal
amount of the Regulation S Global Notes may from time to time be increased or decreased by
adjustments made on the records of the Trustee and the Depositary or its nominee, as the case may
be, in connection with transfers of interest as hereinafter provided.
(d) Euroclear and Clearstream Procedures Applicable. The provisions of the Operating
Procedures of the Euroclear System and Terms and Conditions Governing Use of Euroclear and the
General Terms and Conditions of Clearstream Banking and Customer Handbook of Clearstream will
be applicable to transfers of beneficial interests in the Regulation S Global Notes that are held
by Participants through Euroclear or Clearstream.
Section 2.02 Execution and Authentication.
At least one Officer must sign the Notes for the Company by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is
authenticated, the Note will nevertheless be valid.
A Note will not be valid until authenticated by the manual signature of the Trustee. The
signature will be conclusive evidence that the Note has been authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Company signed by two Officers of the
Company (an Authentication Order), authenticate Notes for original issue that may be
validly issued under this Indenture, including any Additional Notes and any Exchange Notes. Each
Authentication Order shall specify the number of separate Note certificates to be authenticated,
and the registered Holder, principal amount and delivery direction for each Note. 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 shall maintain an office or agency where Notes may be presented for registration
of transfer or for exchange (Registrar) and an office or agency where Notes may be
presented for payment (Paying Agent). The Registrar 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
31
Paying Agent or Registrar
without notice to any Holder. The Company shall notify the Trustee in writing of the name and
address of any Agent not a party to this Indenture. 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 may remove any Registrar or Paying Agent upon written notice to such Registrar or
Paying Agent and to the Trustee; provided, however, that no such removal shall become effective
until (i) if applicable, acceptance of an appointment by a successor as evidenced by an appropriate
agreement entered into by the Company and such successor Registrar or Paying Agent, as the case may
be, and delivered to the Trustee or (ii) notification to the Trustee that the Trustee shall serve
as Registrar or Paying Agent until the appointment of a successor in accordance with clause (i)
above. The Registrar or Paying Agent may resign at any time upon written notice to the Company and
the Trustee; provided, however, that the Trustee may resign as Paying Agent or Registrar only if
the Trustee also resigns as Trustee in accordance with Section 7.08.
The Company initially appoints 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 shall require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by
the Paying Agent for the payment of principal, premium or Additional Interest, if any, or interest
on the Notes, and shall notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed by such Paying Agent. Upon
payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall
have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by
it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee shall serve as Paying Agent
for the Notes.
Section 2.05 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders and shall otherwise comply with TIA
§ 312(a). If the Trustee is not the Registrar, the Company shall furnish, or request that the
Registrar furnish, to the Trustee at least seven Business Days before each interest payment date
and at such other times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of the Holders of Notes and
the Company shall otherwise comply with TIA § 312(a).
32
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 shall 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 is no longer a clearing agency
registered under the Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 90 days after the date of such notice from the Depositary;
(2) Subject to the procedures of the Depository, the Company in its sole discretion
determines that the Global Notes (in whole but not in part) should be exchanged for
Definitive Notes and delivers a written notice to such effect to the Trustee; provided that
in no event shall the Legended Regulation S Global Note be exchanged by the Company for
Definitive Notes prior to the expiration of the Restricted Period and the receipt by the
Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the
Securities Act; or
(3) there shall have occurred and be continuing an Event of Default with respect to the
Notes.
Upon the occurrence of either of the preceding events in (1) or (2) above, Definitive Notes
shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may
be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every
Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion
thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and
delivered in the form of, and shall be, a Global Note. A Global Note
may not be exchanged for another Note other than as provided in this Section 2.06(a), however,
beneficial interests in a Global Note may be transferred and exchanged as provided in Section
2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and
exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes shall be subject to restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Transfers of beneficial
interests in the Global Notes also shall require compliance with either subparagraph (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
33
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
Legended Regulation S Global Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than a Placement Agent). 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
Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged; and
(ii) instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in (i) above;
provided that in no event shall Definitive Notes be issued upon the transfer
or exchange of beneficial interests in the Legended Regulation S Global Note
prior to the expiration of the Restricted Period and the receipt by the
Registrar of any certificates required pursuant to Rule 903 under the
Securities Act.
Upon consummation of an Exchange Offer by the Company in accordance with Section 2.06(f) hereof,
the requirements of this Section 2.06(b)(2) shall be deemed to have been satisfied upon receipt by
the Registrar of the instructions contained in the Letter of Transmittal delivered by the Holder of
such beneficial interests in the Restricted Global Notes. Upon satisfaction of all of the
34
requirements for transfer or exchange of beneficial interests in Global Notes contained in this
Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust
the principal amount of the relevant Global Note(s) pursuant to Section 2.06(h) hereof.
(3) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial
interest in any Restricted Global Note may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.06(b)(2) above and the Registrar
receives the following:
(A) if the transferee will take delivery in the form of a beneficial interest
in the 144A Global Note, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a beneficial interest
in the Legended Regulation S Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications in item
(2) thereof; and
(C) if the transferee will take delivery in the form of a beneficial interest
in the IAI Global Note, 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)(d) thereof, if applicable.
(4) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in
an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer
complies with the requirements of Section 2.06(b)(2) above and:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the holder of the
beneficial interest to be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (i) a Broker-Dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined
in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
35
(i) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a beneficial interest
in an Unrestricted Global Note, a certificate from such holder in the form
of Exhibit C hereto, including the certifications in item (1)(a) thereof; or
(ii) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above at a time
when an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon
receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to
the aggregate principal amount of beneficial interests transferred pursuant to subparagraph
(B) or (D) above.
(5) Transfer and Exchange of Beneficial Interests in an Unrestricted Global Note for
Beneficial Interests in a Restricted Global Note. 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 and 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;
36
(C) if such beneficial interest is being transferred to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such beneficial interest is being transferred pursuant to an exemption
from the registration requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an Institutional
Accredited Investor in reliance on an exemption from the registration requirements
of the Securities Act other than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3)(d) thereof,
if applicable;
(F) if such beneficial interest is being transferred to the Company or any of
its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the Company shall execute and the Trustee shall
authenticate upon receipt of an Authentication Order in accordance with Section 2.02 hereof 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 Legended Regulation S Global Note to Definitive Notes.
Notwithstanding Sections 2.06(c)(1)(A) and (C) hereof, a beneficial interest in the Legended
Regulation S 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.
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(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:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes
or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for an Unrestricted
Definitive Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(b) thereof; or
(ii) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of an Unrestricted Definitive Note,
a certificate from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the 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 Global Note to be reduced accordingly pursuant
to Section 2.06(h) hereof, and the Company will execute and the Trustee will authenticate
upon receipt of an Authentication Order in accordance with
38
Section 2.02 hereof 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 shall deliver such Definitive Notes to the Persons in whose names
such Notes are so registered. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(4) shall 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;
(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 an Institutional
Accredited Investor in reliance on an exemption from the registration requirements
of the Securities Act other than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3)(d) thereof,
if applicable;
(F) 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
39
(G) 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, and increase or cause to be increased the
aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global
Note, in the case of clause (B) above, the 144A Global Note, in the case of clause (C) above, the
Regulation S Global Note, and in all other cases, the IAI Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.
A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in
an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
only if:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Definitive Notes proposes to exchange such
Notes for a beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(ii) if the Holder of such Definitive Notes proposes to transfer such
Notes to a Person who shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit B hereto, including the certifications in item
(4) thereof;
and, in each such case set forth in this subparagraph (D), if the 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.
40
Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(2),
the Trustee will cancel the Definitive Notes and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.
A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
at any time. Upon receipt of a request for such an exchange or transfer, the Trustee will
cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial interest is effected
pursuant to subparagraphs (2)(B), (2)(D) or (3) above at a time when an Unrestricted Global Note
has not yet been issued, the 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 Holders compliance with the provisions of this Section 2.06(e), the
Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration
of transfer or exchange, the requesting Holder must present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in
writing. In addition, the requesting Holder must provide any additional certifications, documents
and information, as applicable, required pursuant to the following provisions of this Section
2.06(e).
(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.
41
(2) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted
Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note
or transferred to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf Registration Statement
in accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer pursuant to the Exchange
Offer Registration Statement in accordance with the Registration Rights Agreement;
or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted Definitive Notes proposes to
exchange such Notes for an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto, including the certifications in
item (1)(d) thereof; or
(ii) if the Holder of such Restricted Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in the form
of an Unrestricted Definitive Note, a certificate from such Holder in
the form of Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), 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) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Company will issue and, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee will authenticate:
42
(1) one or more Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global Notes accepted for
exchange in the Exchange Offer by Persons that certify in the applicable Letters of
Transmittal that (A) they are not Broker-Dealers, (B) they are not participating in a
distribution of the Exchange Notes and (C) they are not affiliates (as defined in Rule 144)
of the Company; and
(2) Unrestricted Definitive Notes in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Notes accepted for exchange in the Exchange
Offer by Persons that certify in the applicable Letters of Transmittal that (A) they are not
Broker-Dealers, (B) they are not participating in a distribution of the Exchange Notes and
(C) they are not affiliates (as defined in Rule 144) of the Company.
Concurrently with the issuance of such Notes, the Trustee will cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and the Company will
execute and the Trustee will authenticate upon receipt of an Authentication Order in accordance
with Section 2.02 hereof and deliver to the Persons designated by the Holders of Definitive Notes
so accepted Unrestricted Definitive Notes in the appropriate principal amount.
(g) Legends. The following legends will appear on the face of all Global Notes and Definitive
Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions
of this Indenture.
(1) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global Note and each
Definitive Note (and all Notes issued in exchange therefor or substitution thereof)
shall bear the legend in substantially the following form:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
SECURITIES ACT), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN
THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT
(A) IT IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT (2)
AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k) UNDER THE
SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B)
TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED
43
INVESTOR (AS
DEFINED IN RULE 501(a)(1), (2), (3) or (7) OF REGULATION D UNDER THE SECURITIES ACT)
THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF
THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND IF SUCH
TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES OF LESS THAN
$100,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT TO
THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE
IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION
WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k)
UNDER THE SECURITIES ACT AFTER THE ORIGINAL ISSUANCE OF THE NOTES, THE HOLDER MUST
CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF
SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE, IF THE PROPOSED TRANSFEREE
IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER
IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. AS USED HEREIN, THE TERMS OFFSHORE TRANSACTION, UNITED STATES
AND U.S. PERSON HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE
TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTION.
(B) Notwithstanding the foregoing, any Global Note or Definitive Note issued
pursuant to subparagraph (b)(4), (c)(3), (c)(4), (d)(2), (d)(3), (e)(2), (e)(3) or
(f) of this Section 2.06 (and all Notes issued in exchange therefor or substitution
thereof) will not bear the Private Placement Legend.
(2) Global Note Legend. Each Global Note will bear a legend in substantially the
following form:
44
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 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 Global Note Legend. The Regulation S Global Note shall bear a legend
in substantially the following form:
THE RIGHTS ATTACHING TO THIS REGULATION S GLOBAL NOTE, AND THE CONDITIONS AND
PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE
INDENTURE (AS DEFINED HEREIN).
(h) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests
in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note
has been redeemed, repurchased or canceled in whole and not in part, each such Global Note will be
returned to or retained and canceled by the Trustee in accordance
45
with Section 2.11 hereof. At any
time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or
transferred to a Person who will take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the principal amount of Notes represented by such
Global Note will be reduced accordingly and an endorsement will be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the
beneficial interest is being exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note, such other Global Note will be
increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the 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 Registrars request.
(2) No service charge shall be made to a Holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but
the Company or the Trustee may require payment of a sum sufficient to cover any transfer tax
or similar governmental charge payable in connection therewith (other than any such transfer
taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections
2.10, 3.06, 4.09, 4.13 and 9.05 hereof).
(3) The Registrar shall 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 shall 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 shall 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.
46
(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 shall 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.
(9) The Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in any Notes (including any
transfers between or among Agent Members) other than to require delivery of such
certificates and other documentation or evidence as are expressly required by, and to do so
if and when expressly required by, the terms of this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements hereof.
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 shall issue
and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if
the Trustees 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, expense, claim or liability that any of them may suffer if a
Note is replaced and subsequently presented or claimed for payment. The Company may charge for
their expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and shall be entitled to all
of the benefits of this Indenture equally and proportionately with all other Notes duly issued
hereunder.
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 hereof.
47
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the
Trustee and the Registrar receive 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 all principal, premium and
accrued interest with respect to the outstanding 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, request, waiver or consent in the exercise of any discretion, power or authority
(whether contained in this Indenture or vested by operation of law) which the Trustee is required,
expressly or impliedly, to exercise in or by reference to the interests of the Holders or any of
them, Notes owned by the Company or any Subsidiary Guarantor, or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common control with the Company
or any Subsidiary 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 shall 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 Company shall prepare and the Trustee shall authenticate
definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of this Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and will dispose of such
canceled Notes in its customary manner (subject to the record retention requirement of the Exchange
Act). Upon the receipt of written instructions from the Company, certification of the destruction
of all canceled Notes shall be delivered to the Company. The
48
Company may not issue new Notes to
replace Notes that it has redeemed, purchased or 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 prepared by the Company
that states the special record date, the related payment date and the amount of such interest to be
paid.
Section 2.13 CUSIP Numbers and ISIN Numbers.
The Company in issuing the Notes may use CUSIP numbers and ISINs (if then generally in
use), and, if so, the Trustee shall use CUSIP numbers and ISINs in notices of redemption as a
convenience to Holders; provided that any such notice may state that no representation is made as
to the correctness of such numbers, either as printed on the Notes or as contained in any notice of
a redemption and that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee in writing of any change in the CUSIP
numbers or ISINs.
Section 2.14 Issuance of Additional Notes.
The Issuer may, subject to Section 4.08 of this Indenture, issue Additional Notes under this
Indenture in accordance with the procedures of Section 2.02 . The Original Notes issued on the
date of this Indenture and any Additional Notes subsequently issued shall be treated as a single
class for all purposes under this Indenture.
ARTICLE 3
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 75 days
before a redemption date (unless a shorter time is acceptable to the Trustee), an Officers
Certificate setting forth:
49
(1) the clause of this Indenture pursuant to which the redemption shall occur;
(2) the redemption date;
(3) the principal amount of Notes to be redeemed;
(4) the redemption price;
(5) applicable CUSIP numbers; and
(6) a statement that the conditions precedent to such redemption have been satisfied.
Section 3.02 Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed at any time, the Trustee shall select Notes
for redemption or purchase as follows:
(1) if the Notes are listed on any national securities exchange, in compliance with the
requirements of the principal national securities exchange on which the Notes are listed; or
(2) if the Notes are not listed on any national securities exchange, by lot or by such
other method as the Trustee in its sole discretion shall deem fair and appropriate.
In the event of partial redemption or purchase by lot, the particular Notes to be redeemed or
purchased shall be selected, unless otherwise provided herein, not less than 30 days nor more than
60 days prior to the redemption date by the Trustee from the outstanding Notes not previously
called for redemption.
The Trustee shall promptly notify the Company in writing of the Notes selected for redemption
and, in the case of any Note selected for partial redemption or purchase, the principal amount
thereof to be redeemed. Notes and portions of Notes selected shall be in amounts of $1,000 or
integral multiples of $1,000 in excess thereof; provided that no Notes of $1,000 in principal
amount or less shall be redeemed in part. Except as provided in the preceding sentence, provisions
of this Indenture that apply to Notes called for redemption also apply to portions of Notes called
for redemption.
Section 3.03 Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date, the Company shall mail or
cause to be mailed, by first class mail, a notice of redemption to the Trustee and 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 8 or
12 hereof.
50
The notice shall identify the Notes (including CUSIP numbers) to be redeemed and will state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the principal amount of such
Note to be redeemed and that, after the redemption date upon surrender of such Note, a new
Note or Notes in principal amount equal to the unredeemed portion will be
issued upon cancellation of the original Note or with respect to a Global Note a
notation shall be made on Schedule A thereto to reduce the principal amount of the Global
Note to an amount equal to the unredeemed portion of the Global Note surrendered;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price;
(6) that, unless the Company defaults in making such redemption payment, interest on
Notes (or portion thereof) 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.
In addition, any notice given with respect to a redemption pursuant to Section 3.07 may
provide that payment of the redemption price and performance of the Companys obligations with
respect to any redemption or purchase may be performed by another Person. At the Companys
request, the Trustee will give the notice of redemption in the Companys name and at their expense;
provided, however, that the Company has delivered to the Trustee, at least 45 days (or such shorter
period as shall be acceptable to the Trustee) prior to the redemption date, an Officers
Certificate requesting that the Trustee give such notice and setting forth the information to be
stated in such notice as provided in this Section 3.03.
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, except as set forth in Section 3.07(c) hereof.
51
Section 3.05 Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on the redemption date, the Company shall deposit
with the Trustee or with the Paying Agent money sufficient to pay the redemption price of and
accrued interest and Additional Interest, if any, on all Notes to be redeemed on that date. The
Trustee or the Paying Agent shall promptly return to the Company any money deposited with the
Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption
price of, and accrued interest and Additional Interest, if any, on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding paragraph, on and after the
redemption date, interest will cease to accrue on the Notes or the portions of Notes called for
redemption. If a Note is redeemed on or after an interest record date but on or prior to the
related interest payment date, then any accrued and unpaid interest shall be paid to the Person in
whose name such Note was registered at the close of business on such record date. If any Note
called for redemption is not so paid upon surrender for redemption because of the failure of the
Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal,
from the redemption date until such principal is paid, and to the extent lawful on any interest not
paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01
hereof.
Section 3.06 Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the 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 redeem the Notes, in whole or in part, at any time on or after February 1,
2012. The redemption price for the Notes (expressed as a percentage of principal amount) will be
as follows, plus accrued and unpaid interest and Additional Interest, if any, to the redemption
date, if redeemed during the 12-month period commencing on February 1 of any year set forth below:
|
|
|
|
|
|
|
Redemption |
Year |
|
Price |
2012 |
|
|
103.813 |
% |
2013 |
|
|
102.542 |
% |
2014 |
|
|
101.271 |
% |
2015 and thereafter |
|
|
100 |
% |
(b) At any time prior to February 1, 2010, the Company may redeem up to 35% of the principal
amount of the Notes issued under this Indenture with the Net Cash Proceeds of one or more sales of
Capital Stock (other than Disqualified Stock) of the Company at a redemption price (expressed as a
percentage of principal amount) of 107.625%, plus accrued and
52
unpaid interest and Additional
Interest, if any, to the redemption date; provided that at least 65% of the aggregate principal
amount of the Notes originally issued on the Closing Date remains outstanding after each such
redemption (excluding Notes held by the Company and its Subsidiaries) and notice of any such
redemption is mailed within 60 days of each such sale of Capital Stock.
(c) At any time prior to February 1, 2012, the Notes may also be redeemed or purchased, by or
on behalf of the Company, in whole, or in part, at the Companys option, at a price equal to 100%
of the principal amount the Notes redeemed plus the Applicable Premium as of, and accrued and
unpaid interest and Additional Interest, if any, to, the date of redemption, subject to the right
of Holders of record on the relevant record date to receive interest due on the relevant interest
payment date.
(d) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
Unless the Company defaults in the payment of the redemption or purchase price, interest will
cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption
date.
Section 3.08 Mandatory Redemption.
The Company is not required to make mandatory redemption or sinking fund payments with respect
to the Notes.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes.
The Company shall pay or cause to be paid the principal of, premium, if any, and interest and
Additional Interest, if any, on, the Notes on the dates and in the manner provided in the Notes.
Principal, premium, if any, and interest and Additional Interest, if any, shall be considered paid
on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of
10:00 a.m. Eastern Time on the due date money deposited by the Company in immediately available
funds and designated for and sufficient to pay all principal of, premium, if any, and interest and
Additional Interest, if any, then due. The Company shall pay all Additional Interest, if any, in
the same manner on the dates and in the amounts set forth in the Registration Rights Agreement.
The Company shall pay interest on overdue principal at the rate of interest specified therefor
in the Notes, and it shall pay interest on overdue installments of interest at the same rate of
interest borne by the Notes to the extent lawful.
53
Section 4.02 Maintenance of Office or Agency.
The Company shall maintain in The Borough of Manhattan, the City of New York, an office or
agency (which may be an office of the Trustee or an 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 shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company 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 shall in any
manner relieve the Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the location of any such
other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee as one such office or
agency of the Company in accordance with Section 2.03 hereof.
Section 4.03 Reports.
(a) Whether or not the Company is then required to file reports with the SEC, the Company
shall file with the SEC all such reports and other information as it would be required to file with
the SEC by Section 13(a) or 15(d) under the Exchange Act if it were subject thereto, no later than
15 days after the respective dates by which such reports would be required to be filed under the
SECs rules and regulations. The Company shall supply to the Trustee and to each Holder who so
requests or shall supply to the Trustee for forwarding to each such Holder who so requests, without
cost to such Holder, copies of such reports and other information to the extent that they are not
available on the SECs electronic data gathering and retrieval (EDGAR) system. In addition, at all
times when any of the Notes are not freely tradeable under the Securities Act, upon the request of
any Holder or any prospective purchaser of the Notes designated by a Holder, the Company shall
supply to such Holder or such prospective purchaser the information required under Rule 144A of the
Securities Act.
(b) Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustees receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Companys compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers Certificates). The Trustee is under no duty to examine such reports,
information or documents to ensure compliance with the provisions of this Indenture or to ascertain
the correctness or otherwise of the information or the statements contained therein. The Trustee
is entitled to assume such compliance and correctness unless a Responsible Officer of the Trustee
is informed otherwise.
54
(c) Subject to the then current standards of the American Institute of Certified Public
Accountants, and the Companys auditors willingness to provide such report, the Company shall use
its reasonable efforts to cause the annual financial statements delivered pursuant to this Section
4.03 to be accompanied by a written report of the Companys independent accountants (who shall be a
firm of established national reputation) that in conducting their audit of such financial
statements nothing has come to their attention that would lead them to believe that the Company has
violated any provisions of Articles 4 or 5 of this Indenture insofar as they relate to accounting
matters or, if any such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
Section 4.04 Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 90 days after the close of each fiscal
year, an Officers Certificate stating that a review of the activities of the Company and its
Restricted Subsidiaries and the Companys and its Restricted Subsidiaries performance under this
Indenture has been made under the supervision of the signing Officers with a view to determining
whether it has kept, observed, performed and fulfilled its obligations under this Indenture and
further stating, as to each such Officer signing such certificate, that to the best of his or her
knowledge, the Company and its Restricted Subsidiaries during such preceding fiscal year have kept,
observed, performed and fulfilled each and every such covenant and no Default or Event of Default
occurred during such year and at the date of such certificate there is no Default or Event of
Default that has occurred and is continuing or, if such signers do know of such Default or Event of
Default, the certificate shall describe its status with particularity. The applicable Officers
Certificate shall also notify the Trustee should the Company or any of its Restricted Subsidiaries
elect to change the manner in which it fixes its fiscal year end.
(b) So long as any of the Notes are outstanding, and within ten (10) Business Days of the
Company becoming aware of any Default or Event of Default, the Company shall deliver to the
Trustee, in the event that any Officer becomes aware of any Default or Event of Default in the
performance of any covenant, agreement or condition contained in this Indenture, an Officers
Certificate specifying the Default or Event of Default and describing its status with
particularity.
(c) Except with respect to receipt of Note payments and any Default or Event of Default
information contained in the Officers Certificate delivered to it pursuant to this Section 4.04,
the Trustee shall have no duty to review, ascertain or confirm the Companys compliance with, or
the breach of any representation, warranty of covenant made in this Indenture.
Section 4.05 Reserved.
Section 4.06 Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly,
55
(1) declare or pay any dividend or make any distribution on or with respect to its Capital
Stock (other than (x) dividends or distributions payable solely in shares of its Capital Stock
(other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such
Capital Stock and (y) pro rata dividends or distributions on Capital Stock of Restricted
Subsidiaries held by minority stockholders) held by Persons other than the Company or any of its
Restricted Subsidiaries,
(2) purchase, call for redemption or redeem, retire or otherwise acquire for value any shares
of Capital Stock (including options, warrants or other rights to acquire such shares of Capital
Stock) of the Company,
(3) make any voluntary or optional principal payment, or voluntary or optional redemption,
repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the
Company that is subordinated in right of payment to the Notes or any Indebtedness of a Subsidiary
Guarantor that is subordinated in right of payment to a Note Guarantee (in each case, other than
the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of
satisfying a sinking fund obligation, principal installment or at the final maturity thereof, in
each case due within one year of the date of such purchase, repurchase or other acquisition) or
(4) make any Investment, other than a Permitted Investment, in any Person (such payments or
any other actions described in clauses (a)(1) through (a)(4) above being collectively
Restricted Payments) if, at the time of, and after giving effect to, the proposed
Restricted Payment:
(A) a Default or Event of Default shall have occurred and be continuing,
(B) the Company could not Incur at least $1.00 of Indebtedness under Section 4.08(a),
or,
(C) the aggregate amount of all Restricted Payments made after the Closing Date would
exceed the sum of:
(i) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the
Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) accrued
on a cumulative basis during the period (taken as one accounting period) beginning on the
first day of the fiscal quarter immediately following the Closing Date and ending on the
last day of the last fiscal quarter preceding the Transaction Date for which internal
financial statements are available, plus
(ii) the aggregate Net Cash Proceeds, and the fair market value of assets other than
cash, received by the Company after the Closing Date as a capital contribution or
from the issuance and sale of its Capital Stock (other than Disqualified Stock) to a
Person who is not a Subsidiary of the Company, including an issuance or sale permitted by
this Indenture of Indebtedness of the Company for cash subsequent to the Closing Date upon
the conversion of such Indebtedness into Capital Stock (other than Disqualified Stock) of
the Company, or from the issuance to a Person who is not a Subsidiary of the Company of any
options, warrants or other rights to acquire Capital Stock of the Company (in each case,
exclusive of any Disqualified Stock or any options, warrants or other rights that are
56
redeemable at the option of the holder, or are required to be redeemed, prior to the Stated
Maturity of the Notes), plus
(iii) an amount equal to the net reduction in Investments (other than reductions in
Permitted Investments) in any Person resulting from payments of interest on Indebtedness,
dividends, repayments of loans or advances, or other transfers of assets, in each case, to
the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any
such Investment (except, in each case, to the extent any such payment or proceeds are
included in the calculation of Adjusted Consolidated Net Income), from the release of any
Guarantee (except to the extent any amounts have been paid under such Guarantee) or from
redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case
as provided in the definition of Investments), not to exceed, in each case, the amount of
Investments previously made after the Closing Date (and treated as a Restricted Payment) by
the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary, plus
(iv) the aggregate net cash proceeds received by the Company from the issuance or sale
after the Closing Date of Indebtedness that has been converted into or exchanged for Capital
Stock (other than Disqualified Stock) of the Company (excluding any such Indebtedness issued
or sold to, or held by, the Company or a Subsidiary), less the fair market value of any
property (other than cash) distributed by the Company or any Restricted Subsidiary upon any
such conversion or exchange.
(b) The foregoing provisions shall not be violated by reason of:
(1) the payment of any dividend or redemption of any Capital Stock within 60
days after the related date of declaration or call for redemption if, at said date
of declaration or call for redemption, such payment or redemption would comply with
clause (a) above;
(2) the redemption, repurchase, defeasance or other acquisition or retirement
for value of Indebtedness that is subordinated in right of payment to the Notes or
any Note Guarantee, including premium, if any, and accrued interest, with the
proceeds of, or in exchange for, Indebtedness Incurred under Section 4.08 (b)(3);
(3) the repurchase, redemption or other acquisition of Capital Stock of the
Company or a Restricted Subsidiary (or options, warrants or other rights to acquire
such Capital Stock) in exchange for, or out of the proceeds of a capital
contribution or a substantially concurrent offering of, shares of Capital Stock
(other than Disqualified Stock) of the Company (or options, warrants or other
rights to acquire such Capital Stock); provided that such options, warrants or other
rights are not redeemable at the option of the holder, or required to be redeemed,
prior to the Stated Maturity of the Notes;
(4) the making of any principal payment or the repurchase, redemption,
retirement, defeasance or other acquisition for value of Indebtedness
57
which is
subordinated in right of payment to the Notes or any Note Guarantee in exchange for,
or out of the proceeds of a capital contribution or a substantially concurrent
offering of, shares of the Capital Stock (other than Disqualified Stock) of the
Company (or options, warrants or other rights to acquire such Capital Stock);
provided that such options, warrants or other rights are not redeemable at the
option of the holder, or required to be redeemed, prior to the Stated Maturity of
the Notes;
(5) payments or distributions, to dissenting stockholders required by
applicable law, pursuant to or in connection with a consolidation, merger or
transfer of assets of the Company that complies with the provisions of this
Indenture applicable to mergers, consolidations and transfers of all or
substantially all of the property and assets of the Company;
(6) Investments acquired as a capital contribution to, or in exchange for, or
out of the proceeds of a substantially concurrent offering of, Capital Stock (other
than Disqualified Stock) of the Company;
(7) the repurchase of Capital Stock deemed to occur upon the exercise of
options or warrants if such Capital Stock represents all or a portion of the
exercise price thereof;
(8) the repurchase, redemption or other acquisition or retirement for value of
any Capital Stock, or options, warrants or other rights to acquire shares of such
Capital Stock, of the Issuer or any Restricted Subsidiary held by any current or
former officer, director or employee of the Issuer or any of its Restricted
Subsidiaries pursuant to any equity subscription agreement, stock option agreement,
shareholders agreement or similar agreement or pursuant to any other agreement or
plan approved by the Board of Directors of the Company; provided that the aggregate
price paid for all such repurchased, redeemed, acquired or retired Capital Stock, or
options, warrants or other rights to acquire shares of such Capital Stock, may not
exceed $3,000,000 in any calendar year (with any unused amounts being carried
forward to future periods, subject to a maximum of $6,000,000 in any calendar year);
provided further that such amount in any calendar year may be increased by an amount
not to exceed (A) the net cash proceeds received by the Issuer from the sale of
Capital Stock (other than Disqualified Stock) of the Company (or options, warrants
or other rights to acquire such Capital Stock) to members of management or directors
of the Issuer and its Restricted Subsidiaries that occurs after the Closing Date (to
the extent such cash proceeds have not otherwise been applied to the payment of
Restricted
Payments), plus (B) the net cash proceeds of key man life insurance policies
received by the Company and its Restricted Subsidiaries after the Closing Date of
the indenture, less (C) the amount of any Restricted Payments made pursuant to
clauses (A) and (B) of this Section 4.06(b)(8);
(9) the declaration and payment of regularly scheduled or accrued dividends to
holders of any class or series of Disqualified Stock of the Company
58
or any
Restricted Subsidiary issued on or after the Closing Date in accordance with the
Fixed Charge Coverage Ratio test described under Section 4.08 hereof;
(10) the purchase, repurchase or acquisition of Capital Stock of the Company,
in an aggregate amount pursuant to this Section 4.06(b)(10) not to exceed
$5,000,000, for distribution, contribution or payment to, or for the benefit of, any
employee benefit plan of the Company or any of its Subsidiaries or any trust
established by the Company or any of its Subsidiaries for the benefit of its
employees;
(11) the repayment of Acquired Indebtedness in connection with an acquisition;
(12) the repayment of the Existing Notes with the proceeds of the sale of the
Notes; and
(13) any other Restricted Payments in an aggregate amount pursuant to this
Section 4.06(b)(13) not to exceed $25,000,000;
provided that, in the case of clauses (8), (9), (10) and (13) of this Section 4.06(b), no Default
or Event of Default shall have occurred and be continuing or occur as a consequence of the actions
or payments set forth therein.
(c) Each Restricted Payment permitted pursuant to Section 4.06(b) (other than the Restricted
Payment referred to in clause (2), (7), (10), (11), (12) or (13) thereof, or an exchange of Capital
Stock for Capital Stock or Indebtedness referred to in clause (3) or (4) thereof or an Investment
acquired as a capital contribution or in exchange for Capital Stock referred to in clause (6)
thereof) shall be included in calculating whether the conditions of Section 4.06(a)(4)(C) hereof
have been met with respect to any subsequent Restricted Payments, and the Net Cash Proceeds from
any issuance of Capital Stock referred to in clause (3), (4), (6) or (8) of Section 4.06(b) shall
not be included in such calculation; provided, however, that a Restricted Payment permitted
pursuant to clause (9) of Section 4.06(b) shall be included in such calculation only to the extent
of one half of the amounts paid pursuant to Section 4.06(b)(9) and only to the extent that Adjusted
Consolidated Net Income is not reduced by such amount.
(d) For purposes of determining compliance with this Section 4.06, (x) the amount, if other
than in cash, of any Restricted Payment shall be determined in good faith by an officer of the
Company, whose determination shall be conclusive and evidenced by an Officers Certificate,
provided that if such amount is over $5,000,000, it shall be determined in good faith by the Board
of Directors or a committee thereof, whose determination shall be conclusive and evidenced by a
resolution of the Board of Directors and (y) in the event that a Restricted
Payment meets the criteria of more than one of the types of Restricted Payments described in
the above clauses, including Section 4.06(a), the Company, in its sole discretion, may order and
classify, and from time to time may reclassify, such Restricted Payment if it would have been
permitted at the time such Restricted Payment was made and at the time of such reclassification.
59
Section 4.07 Limitation on Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.
(a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or
otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of
any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any
Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted
Subsidiary;
(2) repay any Indebtedness owed to the Company or any other Restricted Subsidiary;
(3) make loans or advances to the Company or any other Restricted Subsidiary; or
(4) transfer any of its property or assets to the Company or any other Restricted
Subsidiary.
(b) The foregoing restrictions shall not restrict any encumbrances or restrictions:
(1) existing on the Closing Date in the Credit Agreement, this Indenture, the Notes or
any other agreements in effect on the Closing Date, and any extensions, refinancings,
amendments, renewals, increases, supplements or replacements of such agreements; provided
that the encumbrances and restrictions in any such extensions, refinancings, amendments,
renewals, increases, supplements or replacements taken as a whole are no less favorable in
any material respect to the Holders than those encumbrances or restrictions that are then in
effect and that are being extended, refinanced, amended, renewed or replaced;
(2) existing under or by reason of applicable law, rule, regulation or order required
by any governmental authority;
(3) existing with respect to any Person or the property or assets of such Person
acquired by the Company or any Restricted Subsidiary, existing at the time of such
acquisition and not incurred in contemplation thereof, which encumbrances or restrictions
are not applicable to any Person or the property or assets of any Person other than such
Person or the property or assets of such Person so acquired and any extensions,
refinancings, amendments, renewals, increases, supplements or replacements thereof; provided
that the encumbrances and restrictions in any such extensions, refinancings, amendments,
renewals, increases, supplements or replacements taken as a whole are no less favorable in
any material respect to the Holders than those encumbrances or
restrictions that are then in effect and that are being extended, amended, refinanced,
renewed, increased, supplemented or replaced;
(4) in the case of Section 4.07(a)(4):
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(A) that restrict in a customary manner the subletting, assignment or transfer
of any property or asset that is a lease, license, conveyance or contract or similar
property or asset,
(B) existing by virtue of any transfer of, agreement to transfer, option or
right with respect to, or Lien on, any property or assets of the Company or any
Restricted Subsidiary not otherwise prohibited by this Indenture, or
(C) arising or agreed to in the normal course of business, not relating to any
Indebtedness, and that do not detract from the value of property or assets of the
Company or any Restricted Subsidiary in any manner material to the Company and its
Restricted Subsidiaries, taken as a whole,
(5) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that
has been entered into for the sale or disposition of all or substantially all of the Capital
Stock of, or property and assets of, such Restricted Subsidiary;
(6) contained in the terms of any Indebtedness or any agreement pursuant to which such
Indebtedness was issued if:
(A) the encumbrance or restriction is not materially more disadvantageous to the
Holders of the Notes than is customary in comparable financings (as determined by the
Company in good faith); and
(B) the Company determines that any such encumbrance or restriction shall not
materially affect the Companys ability to make principal or interest payments on the Notes;
(7) arising from customary provisions in joint venture agreements and other similar
agreements;
(8) with respect to the property or assets of entities that are joint ventures of the
Company on the Closing Date (other than entities that are Restricted Subsidiaries of the
Company on the Closing Date);
(9) with respect to cash or other deposits or net worth imposed by lessors or customers
under contracts entered into in the ordinary course of business;
(10) under Indebtedness or other contractual requirements of a Receivables Entity in
connection with a Qualified Receivables Transaction, provided that such restrictions apply
only to such Receivables Entity or the Receivables Assets that are subject to such Qualified
Receivables Transaction; or
(11) customary restrictions imposed on the transfer and assignment of intellectual
property.
(c) Nothing contained in this Section 4.07 shall prevent the Company or any Restricted
Subsidiary from:
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(1) creating, incurring, assuming or suffering to exist any Liens otherwise not prohibited by
Section 4.11, or
(2) restricting the sale or other disposition of property or assets of the Company or of any
of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted
Subsidiaries.
Section 4.08 Limitation on Indebtedness and Issuance of Preferred Stock.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, Incur
any Indebtedness, and the Company shall not permit any of its Restricted Subsidiaries to issue any
preferred stock; provided, however, that the Company may Incur Indebtedness (including, without
limitation, Acquired Indebtedness), any Restricted Subsidiary may Incur Acquired Indebtedness, and
any Subsidiary Guarantor may Incur Indebtedness or issue preferred stock if, after giving effect to
the Incurrence of such Indebtedness or issuance of preferred stock and the receipt and application
of the proceeds therefrom, the Fixed Charge Coverage Ratio would be greater than 2.0:1.0.
(b) Notwithstanding the foregoing, the Company and any Restricted Subsidiary (except as
specified below) may Incur each and all of the following:
(1) Indebtedness under Credit Facilities in an aggregate principal amount at any one
time outstanding under this Section 4.08(b)(1) (together with refinancings, replacements or
amendments thereof) not to exceed the greater of (a) $200,000,000 less any amount of such
Indebtedness permanently repaid as provided by Section 4.09, or (b) the Borrowing Base of
the Company and its Restricted Subsidiaries on a consolidated basis;
(2) Indebtedness owed (A) to the Company or any Subsidiary Guarantor that is not
subordinated in right of payment to any other Indebtedness of the Company or such Subsidiary
Guarantor, as the case may be, or (B) to any other Restricted Subsidiary; provided that (x)
any event which results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or
another Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of
such Indebtedness not permitted by this Section 4.08(b)(2) and (y) if the Company or any
Subsidiary Guarantor is the obligor on such Indebtedness, such Indebtedness must be
expressly subordinated in right of payment to the Notes, in the case of the Company, or the
Note Guarantee, in the case of a Subsidiary Guarantor;
(3) Indebtedness issued in exchange for, or the net proceeds of which are used to
refinance, repay, repurchase or refund, then outstanding Indebtedness (other than the
Existing Notes and Indebtedness outstanding under clauses (1), (2), (6), (7) and (9) of this
Section 4.08(b) and any refinancings thereof) in an amount not to exceed the amount so
refinanced, repaid, repurchased or refunded (plus premiums, accrued interest, fees and
expenses); provided that (a) Indebtedness, the proceeds of which are used to refinance,
repay, repurchase or refund the Notes, or Indebtedness that is pari passu with, or
subordinated in right of payment to, the Notes or a Note Guarantee, shall only be
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permitted
under this Section 4.08(b)(3) if (x) in case the Notes are refinanced, repaid, repurchased
or refunded in part or the Indebtedness to be refinanced, repaid, repurchased or refunded is
pari passu with the Notes or a Note Guarantee, such new Indebtedness, by its terms or by the
terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding,
is expressly made pari passu with, or subordinate in right of payment to, the remaining
Notes or the Note Guarantee, or (y) in case the Indebtedness to be refinanced, repaid,
repurchased or refunded is subordinated in right of payment to the Notes or a Note
Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or
instrument pursuant to which such new Indebtedness is issued or remains outstanding, is
expressly made subordinate in right of payment to the Notes or the Note Guarantee at least
to the extent that the Indebtedness to be refinanced, repaid, repurchased or refunded is
subordinated to the Notes or the Note Guarantee, (b) such new Indebtedness, determined as of
the date of Incurrence of such new Indebtedness, does not mature prior to the Stated
Maturity of the Indebtedness to be refinanced, repaid, repurchased or refunded, and the
Average Life of such new Indebtedness is at least equal to the remaining Average Life of the
Indebtedness to be refinanced, repaid, repurchased or refunded and (c) such new Indebtedness
is Incurred by the Company or a Subsidiary Guarantor or by the Restricted Subsidiary that is
the obligor on the Indebtedness to be refinanced, repaid, repurchased or refunded;
(4) Indebtedness of the Company, to the extent the net proceeds thereof are promptly
(A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change in
Control or (B) deposited to defease the Notes as described under Article 8 or repay the
Notes as described under Article 12;
(5) Guarantees of the Notes and Guarantees of Indebtedness of the Company or any
Restricted Subsidiary of the Company by any other Restricted Subsidiary of the Company;
provided the Guarantee of such Indebtedness is permitted by and made in accordance with
Section 4.15 hereof;
(6) Indebtedness arising from the honoring by a bank or other financial institution of
a check, draft or similar instrument inadvertently drawn against insufficient funds in the
ordinary course of business provided, however, that such Indebtedness is extinguished within
five business days of incurrence;
(7) Indebtedness of the Company or any of its Restricted Subsidiaries represented by
Capitalized Lease Obligations, mortgage financings or purchase money obligations, in each
case, Incurred by the Company or any of its Restricted Subsidiaries for the purpose of
financing all or any part of the purchase price or cost of design,
construction, installation or improvement of property (real or personal), plant or
equipment used or useful in a Permitted Business, in an aggregate principal amount,
including all Indebtedness Incurred to renew, refund, refinance, replace, defease or
discharge any Indebtedness Incurred pursuant to this Section 4.08(b)(7), not to exceed 5.0%
of the Companys Consolidated Net Assets at any time outstanding;
(8) Indebtedness incurred by a Foreign Subsidiary (or one or more Foreign Subsidiaries)
in an aggregate amount at any time outstanding under this Section
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4.08(b)(8) not to exceed
50% of the Consolidated Net Assets of any such Foreign Subsidiary (or group of Foreign
Subsidiaries, as applicable), provided, that after giving effect to the Incurrence of such
Indebtedness and the application of the net proceeds therefrom, the Fixed Charge Coverage
Ratio would be greater than 2.0:1.0;
(9) Indebtedness incurred in a Qualified Receivables Transaction that is without
recourse to the Company or to any other Subsidiary of the Company or their assets (other
than a Receivables Entity and its assets and, as to the Company or any Subsidiary of the
Company, other than pursuant to Standard Receivables Undertakings) and is not guaranteed by
any such Person;
(10) the Notes and the Note Guarantees Incurred on the Closing Date, any related
Exchange Notes and other Indebtedness existing on the Closing Date; and
(11) additional Indebtedness of the Company or any Restricted Subsidiary (in addition
to Indebtedness permitted under clauses (1) through (10) of this Section 4.08(b)) in an
aggregate principal amount outstanding at any time (together with refinancings thereof) not
to exceed $50,000,000.
(c) Notwithstanding any other provision of this Section 4.08, the maximum amount of
Indebtedness that may be Incurred pursuant to this section shall not be deemed to be exceeded, with
respect to any outstanding Indebtedness due solely to the result of fluctuations in the exchange
rates of currencies.
(d) For purposes of determining any particular amount of Indebtedness under this Section 4.08,
(x) Indebtedness outstanding under the Credit Agreement on the Closing Date shall be treated as
Incurred pursuant to Section 4.08(b)(1), (y) Guarantees, Liens or obligations with respect to
letters of credit supporting Indebtedness otherwise included in the determination of such
particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable
provisions referred to in Section 4.11 shall not be treated as Indebtedness. For purposes of
determining compliance with this Section 4.08, in the event that an item of Indebtedness meets the
criteria of more than one of the types of Indebtedness described above (other than Indebtedness
referred to in clause (x) of this Section 4.08(d)), including under Section 4.08(a), the Company,
in its sole discretion, may classify, and from time to time may reclassify, such item of
Indebtedness.
Section 4.09 Limitation on Asset Sales.
(a) The Company shall not, and shall not permit any Restricted Subsidiary to, consummate any
Asset Sale, unless:
(1) the consideration received by the Company or such Restricted Subsidiary is at least equal
to the fair market value of the assets sold or disposed of and
(2) at least 75% of the consideration received consists of:
(A) cash or Temporary Cash Investments,
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(B) the assumption of unsubordinated Indebtedness of the Company or any Subsidiary
Guarantor or Indebtedness of any other Restricted Subsidiary (in each case, other than
Indebtedness owed to the Company or any Affiliate of the Company), provided that the
Company, such Subsidiary Guarantor or such other Restricted Subsidiary is irrevocably and
unconditionally released in writing from all liability under such Indebtedness,
(C) Replacement Assets,
(D) any liabilities (as shown on the Companys or such Restricted Subsidiarys most
recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent
liabilities, liabilities that are by their terms subordinated to the Notes or any Note
Guarantee and liabilities to the extent owed to the Company or any Subsidiary of the
Company) that are assumed by the transferee of any such assets to the extent the Company or
such Restricted Subsidiary is released from further liability,
(E) any securities, notes or other obligations received by the Company or such
Restricted Subsidiary from such transferee that are converted within 90 days by the Company
or such Restricted Subsidiary into cash or Temporary Cash Investments (to the extent of the
cash or Temporary Cash Investments received), or
(F) any Designated Non-Cash Consideration received by the Company or any of its
Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, taken
together with all other Designated Non-Cash Consideration received pursuant to this Section
4.09(a)(2)(F) that is at that time outstanding, not to exceed the greater of (x) 5.0% of the
Companys Consolidated Net Assets as of the date of receipt of such Designated Non-Cash
Consideration and $25,000,000 (with the fair market value of each item of Designated
Non-Cash Consideration being measured at the time received and without giving effect to
subsequent changes in value).
(b) The Company shall, or shall cause the relevant Restricted Subsidiary to:
(1) within twelve months after the date of receipt of any Net Cash Proceeds from an
Asset Sale,
(A) apply an amount equal to such Net Cash Proceeds to permanently repay
Indebtedness of the Company or any Subsidiary Guarantor that is secured
by a Lien or Indebtedness of any other Restricted Subsidiary, in each case,
owing to a Person other than the Company or any Affiliate of the Company, or
(B) to make capital expenditures or invest an equal amount, or the amount not
so applied pursuant to Section 4.09(b)(1)(A) (or enter into a definitive agreement
committing to so invest within 12 months after the date of such agreement) in
Replacement Assets, and
(2) apply (no later than the end of the 12-month period referred to in Section
4.09(b)(1)) any excess Net Cash Proceeds (to the extent not applied pursuant to clause (1)
of this Section 4.09(b)) as provided in the following provisions of this Section 4.09.
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The amount of such excess Net Cash Proceeds required to be applied (or to be committed to be
applied) during such 12-month period as set forth in Section 4.09(b)(1) and not applied as so
required by the end of such period shall constitute Excess Proceeds.
(c) If, as of the first day of any calendar month, the aggregate amount of Excess Proceeds not
theretofore subject to an Offer to Purchase pursuant to this Section 4.09 totals at least
$10,000,000, the Issuer must commence, not later than the fifteenth business day of such month, and
consummate an Offer to Purchase from the Holders (and, if required by the terms of any Indebtedness
that is pari passu with the Notes (Pari Passu Indebtedness), from the holders of such
Pari Passu Indebtedness) on a pro rata basis an aggregate principal amount of Notes (and Pari Passu
Indebtedness) equal to the Excess Proceeds on such date, at a purchase price equal to 100% of their
principal amount, plus, in each case, accrued interest (if any) to the Payment Date. To the extent
that any Excess Proceeds remain after consummation of an Offer to Purchase pursuant to this Section
4.09, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this
Indenture and the amount of Excess Proceeds shall be reset to zero.
Section 4.10 Limitation on Transactions with Affiliates.
(a) The Company shall not, and shall not permit any Restricted Subsidiary to, enter into,
renew or extend any transaction (including, without limitation, the purchase, sale, lease or
exchange of property or assets, or the rendering of any service) with, or for the benefit of, any
Affiliate of the Company or any Restricted Subsidiary, except upon fair and reasonable terms not
materially less favorable to the Company or such Restricted Subsidiary than could be obtained, at
the time of such transaction or, if such transaction is pursuant to a written agreement, at the
time of the execution of the agreement providing therefor, in a comparable arms-length transaction
with a Person that is not an Affiliate.
(b) The foregoing limitation does not limit, and shall not apply to:
(1) transactions (A) approved by a majority of the disinterested members of the Board
of Directors or (B) for which the Company or a Restricted Subsidiary delivers to the Trustee
a written opinion of a nationally recognized investment banking,
accounting, valuation or appraisal firm stating that the transaction is fair to the
Company or such Restricted Subsidiary from a financial point of view;
(2) any transaction solely between the Company and any of its Restricted Subsidiaries
or solely among Restricted Subsidiaries;
(3) any transaction with a Person (other than an Unrestricted Subsidiary of the
Company) that is an Affiliate of the Company solely because the Issuer owns, directly or
through a Restricted Subsidiary, Capital Stock of, or otherwise controls, such Person;
(4) any payments or other transactions pursuant to any tax-sharing agreement between
the Company and any other Person with which the Company files a consolidated tax return or
with which the Company is part of a consolidated group for tax purposes;
66
(5) any sale of shares of Capital Stock (other than Disqualified Stock) of the Company;
(6) any Restricted Payments or Permitted Investments (other than Permitted Investments
described in clauses (1), (7), (11), (13), (15) or (17) of the definition thereof) not
prohibited by Section 4.06 hereof;
(7) any agreement as in effect or entered into as of the Closing Date (as disclosed in
this offering memorandum) or any amendment thereto or any transaction contemplated thereby
(including pursuant to any amendment thereto) and any replacement agreement thereto so long
as any such amendment or replacement agreement is not more disadvantageous to the Holders in
any material respect than the original agreement as in effect on the Closing Date;
(8) any issuance of securities or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, stock options and
stock ownership plans, and other reasonable fees, compensation, benefits and indemnities
paid or entered into by the Company or its Restricted Subsidiaries in the ordinary course of
business to or with officers, directors or employees of the Company or its Restricted
Subsidiaries, in each case approved by the Board of Directors of the Company or a committee
thereof;
(9) any loans or advances to employees of the Company and its Restricted Subsidiaries
in the ordinary course of business;
(10) any payment approved by the Board of Directors of the Company or a committee
thereof in connection with the registration for sale or distribution by any Affiliate of the
Company of any Capital Stock of the Company, including reimbursements for offering expenses,
underwriting discounts and commissions; and
(11) any transaction with a Receivables Entity effected as part of a Qualified
Receivables Transaction and otherwise in compliance with the terms of this Indenture that
are fair to the Company or its Restricted Subsidiaries, in the good faith determination of
the members of the Board of Directors of the Company or the senior management
thereof, or are on terms at least as favorable as would reasonably have been entered
into at such time with an unaffiliated party.
(c) Notwithstanding the foregoing, any transaction or series of related transactions covered
by Section 4.10(a) and not covered by clauses (2) through (10) of Section 4.10(b), (a) the
aggregate amount of which exceeds $5,000,000 in value, must be approved or determined to be fair in
the manner provided for in Section 4.10(b)(1)(A) or (B) above and (b) the aggregate amount of which
exceeds $25,000,000 in value, must be determined to be fair in the manner provided for Section
4.10(b)(1)(B) hereof.
Section 4.11 Limitation on Liens.
(a) The Company shall not, and shall not permit any Restricted Subsidiary to, create, incur,
assume or suffer to exist any Lien securing Indebtedness or Trade Payables on any
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of its assets or
properties of any character (including any shares of Capital Stock or Indebtedness of any
Restricted Subsidiary), without making effective provision for all of the Notes and all other
amounts due under this Indenture to be directly secured equally and ratably with (or, if the
obligation or liability to be secured by such Lien is subordinated in right of payment to the
Notes, prior to) the obligation or liability secured by such Lien.
(b) The foregoing limitation does not apply to:
(1) Liens existing on the Closing Date, other than those described in (b)(2) through
(9) below;
(2) Liens granted on or after the Closing Date on any assets or Capital Stock of the
Company or its Restricted Subsidiaries created in favor of the Holders;
(3) Liens with respect to the assets of a Restricted Subsidiary granted by such
Restricted Subsidiary to the Company or a Restricted Subsidiary to secure Indebtedness owing
to the Company or such other Restricted Subsidiary;
(4) Liens securing Indebtedness which is Incurred to refinance secured Indebtedness
which is permitted to be Incurred under Section 4.08(b)(3); provided that such Liens do not
extend to or cover any property or assets of the Company or any Restricted Subsidiary other
than the property or assets securing the Indebtedness being refinanced;
(5) Liens to secure Indebtedness permitted to be Incurred under Section 4.08(b)(1) or
(11);
(6) Liens to secure Indebtedness permitted to be Incurred under Section 4.08(b)(8);
provided that such Liens do not extend to or cover any property or assets of the Company or
any Restricted Subsidiary other than the property or assets of Foreign Subsidiaries;
(7) Liens (including extensions and renewals thereof) upon real or personal property
acquired after the Closing Date; provided that (a) such Lien is created solely for the
purpose of securing Indebtedness Incurred, in accordance with Section 4.08, to finance the
cost (including the cost of improvement or construction) of the item of property or assets
subject thereto and such Lien is created prior to, at the time of or within one year after
the later of the acquisition, the completion of construction or the commencement of full
operation of such property, (b) the principal amount of the Indebtedness secured by such
Lien does not exceed 100% of such cost and (c) any such Lien shall not extend to or cover
any property or assets other than such item of property or assets and any improvements on
such item;
(8) Liens on cash set aside at the time of the Incurrence of any Indebtedness, or
government securities purchased with such cash, in either case, to the extent that such cash
or government securities pre-fund the payment of interest on such Indebtedness and are held
in a collateral or escrow account or similar arrangement to be applied for such purpose; or
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(9) Permitted Liens.
Section 4.12 Compliance with Laws.
The Company shall comply, and shall cause each of its Restricted Subsidiaries to comply, with
all applicable statutes, rules, regulations, orders and restrictions of the United States, all
states and municipalities thereof, and of any governmental department, commission, board,
regulatory authority, bureau, agency and instrumentality of the foregoing, in respect of the
conduct of their respective businesses and the ownership of their respective properties, except for
such noncompliances as would not in the aggregate have a material adverse effect on the financial
condition or results of operations of the Company and its Restricted Subsidiaries taken as a whole.
Section 4.13 Repurchase of Notes upon a Change of Control.
(a) Upon the occurrence of a Change of Control, the Company shall be obligated to make an
Offer to Purchase (the Change of Control Offer), and shall purchase, on a Business Day
(the Change of Control Payment Date) as described below, all of the then outstanding
Notes, properly tendered and not withdrawn, at a purchase price equal to 101% of the principal
amount thereof, plus accrued and unpaid interest, if any, thereon to the Change of Control Payment
Date. The Change of Control Offer shall remain open for at least 30 Business Days and until the
close of business on the Change of Control Payment Date. The Company shall publicly announce the
results of any Change of Control Offer required under this Section 4.13 upon, or as soon as
practicable after, the completion of such Change of Control Offer.
(b) Within 30 days following the date upon which a Change of Control occurs (the Change
of Control Date), which may be prior to the Change of Control pursuant to clause
(c), the Company shall send, by first class mail, a notice to each Holder, with a copy to the
Trustee, which notice shall govern the terms of the Change of Control Offer. The notice to the
Holders shall contain all instructions and materials necessary to enable such Holders to tender
Notes pursuant to the Change of Control Offer. Such notice shall state:
(1) The transaction or transactions that constitute the Change of Control;
(2) that the Change of Control Offer is being made pursuant to this Section 4.13 and
that all Notes tendered and not withdrawn shall be accepted for payment;
(3) the purchase price (including the amount of accrued interest) and the Change of
Control Payment Date, which shall be a Business Day, that is not earlier than 30 days or
later than 60 days from the date such notice is mailed, other than as may be required by
law;
(4) that any Note not tendered shall continue to accrue interest;
(5) that, unless the Company defaults in making payment therefor, any Note accepted for
payment pursuant to the Change of Control Offer shall cease to accrue interest after the
Change of Control Payment Date;
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(6) that Holders electing to have a Note purchased pursuant to a Change of Control
Offer shall be required to surrender the Note, with the form entitled Option of Holder to
Elect Purchase on the reverse of the Note completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the third Business Day prior to
the Change of Control Payment Date;
(7) that Holders shall be entitled to withdraw their election if the Paying Agent
receives, not later than the third Business Day prior to the Change of Control Payment Date,
a telegram, telex, facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Notes the Holder delivered for purchase and a statement that
such Holder is withdrawing his election to have such Note purchased;
(8) that Holders whose Notes are purchased only in part shall be issued new Notes in a
principal amount equal to the unpurchased portion of the Notes surrendered;
(9) that the Change of Control is subject to certain conditions if applicable, and the
Change of Control Offer is revocable in the event such conditions are not met; and
(10) the circumstances and relevant facts regarding such Change of Control.
(c) The Company may make an Offer to Purchase in advance of a Change of Control, conditional
upon such Change of Control, if a definitive agreement is in place for a Change of Control at the
time of making the Offer to Purchase. However, notwithstanding the occurrence of a Change of
Control, the Company shall not be obligated to purchase the Notes pursuant to this clause (c) in
the event that it has mailed the notice to exercise its right to redeem
all the Notes pursuant to Section 3.07 hereof at any time prior to the requirement to
consummate the Offer to Purchase and redeems the Notes in accordance with such notice.
(d) Notwithstanding the foregoing, the Company shall not be required to purchase the Notes
surrendered if the Company has mailed a notice to Holders of its right to redeem all the Notes
under the terms of Section 3.07 hereof at any time prior to the requirement to consummate the Offer
to Purchase and redeems the Notes in accordance with such notice.
(e) The Company shall not be required to make a Change of Control Offer upon a Change of
Control if any other Person makes the Change of Control Offer in the manner, at the times and price
and otherwise in compliance with the requirements set forth in this Section 4.13 applicable to a
Change of Control Offer made by the Company and purchases all Notes validly tendered and not
withdrawn under such Change of Control Offer.
(f) On or before the Change of Control Payment Date, the Company shall (i) accept for payment
Notes or portions thereof tendered pursuant to the Change of Control Offer, (ii) deposit with the
Paying Agent legal tender in immediately available funds sufficient to pay the purchase price plus
accrued interest, if any, of all Notes so tendered and (iii) deliver to the Trustee Notes so
accepted together with an Officers Certificate stating the Notes or portions thereof being
purchased by the Company. The Paying Agent shall promptly mail to the Holders of Notes so accepted
payment in an amount equal to the purchase price plus accrued interest, if any, and upon written
order of the Company accompanied by an Officers Certificate, the
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Trustee shall promptly
authenticate and mail to such Holders new Notes equal in principal amount to any unpurchased
portion of the Notes surrendered. Any Notes not so accepted shall be promptly mailed by the
Company to the Holder thereof. For purposes of this Section 4.13, the Trustee shall act as the
Paying Agent.
(g) Any amounts remaining with the Paying Agent after the purchase of Notes pursuant to a
Change of Control Offer shall be returned by the Trustee to the Company.
(h) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and
any other securities laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of Notes pursuant to a Change of Control Offer. To
the extent the provisions of any securities laws or regulations conflict with the provisions of
this Section 4.13, the Notes shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Section 4.13 by virtue thereof.
Section 4.14 Payments for Consent.
The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly, pay or cause to be paid any consideration to or for the benefit of any holder of Notes
for, or as an inducement to, any consent, waiver or amendment of any of the terms or provisions of
this Indenture or the Notes unless such consideration is offered to be paid and is paid to all
holders of the Notes that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.
Section 4.15 Limitation on Issuance of Guarantees by Restricted Subsidiaries.
(a) The Company shall not permit any Wholly Owned Restricted Subsidiary (or any Restricted
Subsidiary that is not Wholly Owned if such Restricted Subsidiary guarantees other capital markets
debt securities of the Company or of any Restricted Subsidiary) which is not a Subsidiary
Guarantor, directly or indirectly, to Guarantee any Credit Facility of the Company or of any other
Restricted Subsidiary (other than a Foreign Subsidiary, a Receivables Entity and Globetec
Construction, LLC) (Guaranteed Indebtedness), unless within ten Business Days (a) such
Restricted Subsidiary executes and delivers a supplemental indenture to this Indenture in the form
attached as Exhibit E hereto providing for a Guarantee (also a Note Guarantee) of payment
of the Notes by such Restricted Subsidiary and (b) such Restricted Subsidiary waives and shall not
in any manner whatsoever claim or take the benefit or advantage of, any rights of reimbursement,
indemnity or subrogation or any other rights against the Company or any other Restricted Subsidiary
as a result of any payment by such Restricted Subsidiary under its Note Guarantee until the Notes
have been paid in full.
(b) After the execution of a supplemental indenture pursuant to this Section 4.15, such new
Restricted Subsidiary party thereto shall be a Subsidiary Guarantor for all purposes of this
Indenture.
(c) If the Guaranteed Indebtedness is (A) pari passu in right of payment with the Notes or any
Note Guarantee, then the Guarantee of such Guaranteed Indebtedness shall be pari passu in right of
payment with, or subordinated to, the Note Guarantee or (B) subordinated
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in right of payment to the
Notes or any Note Guarantee, then the Guarantee of such Guaranteed Indebtedness shall be
subordinated in right of payment to the Note Guarantee at least to the extent that the Guaranteed
Indebtedness is subordinated to the Notes or the Note Guarantee.
(d) Notwithstanding the foregoing, any Note Guarantee by a Restricted Subsidiary may provide
by its terms that it shall be automatically and unconditionally released and discharged upon:
(1) any sale, exchange or transfer, to any Person not an Affiliate of the Company, of
Capital Stock of such Restricted Subsidiary so that such Restricted Subsidiary is no longer
a Restricted Subsidiary, or of all or substantially all the assets of, such Restricted
Subsidiary (which sale, exchange or transfer is not prohibited by this Indenture) or upon
the designation of such Restricted Subsidiary as an Unrestricted Subsidiary in accordance
with the terms of this Indenture; or
(2) the release or discharge of the Guarantee which resulted in the creation of such
Note Guarantee, except a discharge or release by or as a result of payment under such
Guarantee.
Section 4.16 Covenant Termination.
(a) Upon the first date that (i) the Notes have Investment Grade Ratings from the both Rating
Agencies, and (ii) no Default or Event of Default has occurred or is continuing under this
Indenture, then the Company and its Restricted Subsidiaries shall cease to be subject to Sections
4.06, 4.07, 4.08, 4.09, 4.10, and 5.01(a)(3) hereof (collectively, the Terminated
Covenants), and in which event, each of the Companys Subsidiaries shall become a Restricted
Subsidiary.
ARTICLE 5
SUCCESSORS
Section 5.01 Consolidation, Merger and Sale of Assets.
(a) The Company shall not consolidate with, merge with or into, or sell, convey, transfer,
lease or otherwise dispose of all or substantially all of its property and assets (as an entirety
or substantially an entirety in one transaction or a series of related transactions) to, any Person
or permit any Person to merge with or into it unless:
(1) the Company shall be the continuing Person, or the Person (if other than it) formed
by such consolidation or into which it is merged or that acquired or leased such property
and assets (the Surviving Person) shall (a) be (i) a corporation organized and
validly existing under the laws of the United States of America or any jurisdiction thereof
or (ii) a limited liability company organized and validly existing under the laws of the
United States of America or any jurisdiction thereof that has at least one Restricted
Subsidiary that is a corporation organized under the laws of the United States of America or
any jurisdiction thereof which corporation becomes a co-issuer of the Notes pursuant
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to a
supplemental indenture, executed and delivered to the Trustee and (b) expressly assume, by a
supplemental indenture, executed and delivered to the Trustee, all of the Companys
obligations under this Indenture, the Notes and the Registration Rights Agreement;
(2) immediately after giving effect to such transaction, no Default or Event of Default
shall have occurred and be continuing;
(3) immediately after giving effect to such transaction on a pro forma basis, the
Company (or the Surviving Person, if applicable) could Incur at least $1.00 of Indebtedness
under Section 4.08(a); provided that this Section 5.01(a)(3) shall not apply to a
consolidation, merger or sale of all (but not less than all) of the assets of the Company if
all Liens and Indebtedness of the Company (or the Surviving Person), together with the
Restricted Subsidiaries of such Person, outstanding immediately after such transaction would
have been permitted (and all such Liens and Indebtedness, other than Liens and Indebtedness
of such Person and its Restricted Subsidiaries outstanding immediately prior to the
transaction, shall be deemed to have been Incurred) for all purposes of this Indenture;
(4) each Subsidiary Guarantor, unless such Subsidiary Guarantor is the Person with
which the Company has entered into a transaction under Section 5.01, shall have, by
supplemental indenture amending its Note Guarantee, confirmed that its Note Guarantee shall
apply to the obligations of the Company or the Surviving Person in accordance with the Notes
and this Indenture; and
(5) the Company shall have delivered to the Trustee an Officers Certificate (attaching
the arithmetic computations to demonstrate compliance with Section 5.01(a)(3)) and an
Opinion of Counsel, each stating that such transaction and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture comply with the
applicable provisions of this Indenture, that all conditions precedent in this Indenture
relating to such transaction have been satisfied and that supplemental indenture is
enforceable;
provided, however, that clause (3) of this Section 5.01(a) does not apply if, in the good faith
determination of the Board of Directors, whose determination shall be evidenced by a resolution of
the Board of Directors, the principal purpose of such transaction is to change the state of
incorporation of the Company and any such transaction shall not have as one of its purposes the
evasion of the foregoing limitations.
(b) No Subsidiary Guarantor shall consolidate with, merge with or into, or sell, convey,
transfer, lease or otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially an entirety in one transaction or a series of related transactions) to,
any Person or permit any Person to merge with or into it unless:
(1) (A) it shall be the continuing Person, or the Person (if other than it) formed by
such consolidation or into which it is merged or that acquired or leased such property and
assets shall expressly assume, by a supplemental indenture, executed and
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delivered to the
Trustee, all of such Subsidiary Guarantors obligations under its Note Guarantee and the
Registration Rights Agreement; (B) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing; and (C) the Company shall
have delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each
stating that such transaction and such supplemental indenture comply with the applicable
provisions of this Indenture, that all conditions precedent in this Indenture relating to
such transaction have been satisfied and that such supplemental indenture is enforceable; or
(2) such sale, conveyance, transfer, lease or other disposal of all or substantially
its property and assets complies with Section 4.09 hereof.
The foregoing requirements of this clause (b) shall not apply to a consolidation or merger of
any Subsidiary Guarantor with and into the Company or any other Subsidiary Guarantor, so long as
the Company or such Subsidiary Guarantor survives such consolidation or merger.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
Each of the following shall be an Event of Default:
(a) default in the payment of principal of (or premium, if any, on) any Note when the same
becomes due and payable at maturity, upon acceleration, redemption or otherwise;
(b) default in the payment of interest on any Note when the same becomes due and payable, and
such default continues for a period of 30 days;
(c) default in the performance or breach of the provisions of Article 5 hereof or the failure
by the Company to make or consummate an Offer to Purchase in accordance with the provisions under
Section 4.09 or Section 4.13 hereof;
(d) the Company or any Restricted Subsidiary defaults in the performance of or breaches any
other covenant or agreement in this Indenture or under the Notes (other than a default specified in
clause (a), (b) or (c) above) and such default or breach continues for a period of 60 consecutive
days after written notice by the Trustee or the Holders of 25% or more in aggregate principal
amount of the Notes;
(e) there occurs with respect to any issue or issues of Indebtedness of the Company or any
Significant Subsidiary having an outstanding principal amount of $20,000,000 or more in the
aggregate for all such issues of all such Persons, whether such Indebtedness now exists or shall
hereafter be created, (I) an event of default that has caused the holder thereof to declare such
Indebtedness to be due and payable prior to its Stated Maturity and such
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Indebtedness has not been
discharged in full or such acceleration has not been rescinded or annulled within 30 days of such
acceleration and/or (II) the failure to make a principal payment at the final (but not any interim)
fixed maturity and such defaulted payment shall not have been made, waived or extended within 30
days of such payment default;
(f) any final judgment or order (not covered by insurance) for the payment of money in excess
of $20,000,000 in the aggregate for all such final judgments or orders against all
such Persons (treating any deductibles, self-insurance or retention as not so covered) shall
be rendered against the Company, any Subsidiary Guarantor or any Significant Subsidiary and shall
not be paid or discharged, and there shall be any period of 30 consecutive days following entry of
the final judgment or order that causes the aggregate amount for all such final judgments or orders
outstanding and not paid or discharged against all such Persons to exceed $20,000,000 during which
a stay of enforcement of such final judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect;
(g) a court having jurisdiction in the premises enters a decree or order for (A) relief in
respect of the Company, any Subsidiary Guarantor or any Significant Subsidiary (or a group of
Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary) in an
involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, (B) appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Company, any Subsidiary Guarantor or any Significant Subsidiary (or a group
of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary) or for
all or substantially all of the property and assets of the Company, any Subsidiary Guarantor or any
Significant Subsidiary (or such group of Restricted Subsidiaries) or (C) the winding up or
liquidation of the affairs of the Company, any Subsidiary Guarantor or any Significant Subsidiary
(or a group of Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary) and, in each case, such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days;
(h) the Company, any Subsidiary Guarantor or any Significant Subsidiary (or a group of
Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary) (A)
commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for relief in an involuntary case under
any such law, (B) consents to the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the Company, any Subsidiary
Guarantor or any Significant Subsidiary (or a group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary) or for all or substantially all of the
property and assets of the Company, any Subsidiary Guarantor or any Significant Subsidiary (or such
group of Restricted Subsidiaries) or (C) effects any general assignment for the benefit of
creditors; or
(i) any Subsidiary Guarantor repudiates its obligations under its Note Guarantee or, except as
permitted by this Indenture, any Note Guarantee of a Subsidiary Guarantor that is a Significant
Subsidiary (or group of Subsidiary Guarantors that, taken together, would constitute a Significant
Subsidiary) is determined to be unenforceable or invalid or shall for any reason cease to be in
full force and effect.
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Section 6.02 Acceleration.
(a) If an Event of Default (other than an Event of Default specified in clause (g) or (h) of
Section 6.01 above with respect to the Company or any Significant Subsidiary (or any group of
Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary)) occurs and is continuing under this Indenture, the Trustee or the Holders of at
least 25% in aggregate principal amount of the Notes, then outstanding, by written notice to the
Company (and to the Trustee if such notice is given by the Holders), may, and the Trustee at the
request of such Holders shall, declare the principal of, premium, if any, and accrued interest on
the Notes to be immediately due and payable. Upon a declaration of acceleration, such principal of,
premium, if any, and accrued interest shall be immediately due and payable. In the event of a
declaration of acceleration because an Event of Default set forth in Section 6.01(e) above has
occurred and is continuing, such declaration of acceleration shall be automatically rescinded and
annulled if the event of default triggering such Event of Default pursuant to Section 6.01(e) shall
be remedied or cured by the Company, the relevant Subsidiary Guarantor or the relevant Significant
Subsidiary or waived by the holders of the relevant Indebtedness within 60 days after the
declaration of acceleration with respect thereto. If an Event of Default specified in Section
6.01(g) or (h) above occurs with respect to the Company or any Significant Subsidiary (or any group
of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary), the
principal of, premium, if any, and accrued interest on the Notes then outstanding shall
automatically become and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder.
(b) At any time after a declaration of acceleration with respect to the Notes as described in
the preceding paragraph, the Holders of a majority in principal amount of the Notes may waive all
past defaults and rescind and cancel such declaration and its consequences (i) if the rescission
would not conflict with any judgment or decree of a court of competent jurisdiction, (ii) if all
existing Events of Default have been cured or waived except nonpayment of principal of, premium or
Additional Interest, if any, or interest that has become due solely because of the acceleration,
(iii) to the extent the payment of such interest is lawful, interest on overdue installments of
interest and overdue principal, premium and Additional Interest, if any, which has become due
otherwise than by such declaration of acceleration, has been paid, (iv) if the Company has paid the
Trustee its reasonable compensation and reimbursed the Trustee for its expenses, disbursements and
advances, and any other amounts due to the Trustee under Section 7.07 and (v) in the event of the
cure or waiver of an Event of Default of the type described in clause (g) or (h) of Section 6.01,
the Trustee shall have received an Officers Certificate and an Opinion of Counsel that such Event
of Default has been cured or waived. No such rescission shall affect any subsequent Default or
Event of Default or impair any right consequent thereto.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
by proceeding at law or in equity to collect the payment of principal of, premium and Additional
Interest, if any, or interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
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The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note
in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default.
No remedy is exclusive of any other remedy. All remedies are cumulative to the extent
permitted by law.
Section 6.04 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the outstanding Notes by
written notice to the Company and to the Trustee may waive all past defaults and rescind and annul
a declaration of acceleration and its consequences if (x) all existing Events of Default, other
than the nonpayment of the principal of, premium and Additional Interest, if any, and accrued
interest on the Notes that have become due solely by such declaration of acceleration, have been
cured or waived and (y) the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction. The Company shall deliver to the Trustee an Officers Certificate stating
that the requisite percentage of Holders have consented to such waiver and attaching copies of such
consents. When a Default or Event of Default is waived, it is cured and ceases.
Section 6.05 Control by Majority.
The Holders at least a majority in aggregate principal amount of the outstanding Notes may
direct the time, method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture, that may involve the Trustee in
personal expense or liability for which (as determined in good faith by it) the Trustee has not
received adequate indemnity, or that the Trustee determines in good faith may be unduly prejudicial
to the rights of Holders of Notes not joining in the giving of such direction and may take any
other action it deems proper that is not inconsistent with any such direction received from Holders
of Notes.
Section 6.06 Limitation on Suits.
(a) A Holder may not pursue any remedy with respect to this Indenture or the Notes unless:
(1) the Holder gives the Trustee written notice of a continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal amount of outstanding Notes make
a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer the Trustee indemnity satisfactory to the Trustee
against any costs, liability or expense;
(4) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer of indemnity; and
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(5) during such 60-day period, the Holders of a majority in aggregate principal amount
of the outstanding Notes do not give the Trustee a direction that is inconsistent with the
request.
Section 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder to receive
payment of principal of, premium and Additional Interest, if any, and interest on a Note, on or
after the respective due dates expressed in such Note, or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default in payment of principal, premium, if any, or interest specified in
clause (a) or (b) of Section 6.01 occurs and is continuing, the Trustee may recover judgment in its
own name and as trustee of an express trust against the Company or any other obligor on the Notes
for the whole amount of principal, premium and Additional Interest, if any, and accrued interest
and fees remaining unpaid, together with interest on overdue principal and premium, if any, and, to
the extent that payment of such interest is lawful, interest on overdue installments of interest,
in each case at the rate per annum borne by the Notes and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts
due to the Trustee under Section 7.07.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due to the Trustee under Section 7.07) and the Holders allowed in any judicial
proceedings relating to the Company, its creditors or its property and shall be entitled and
empowered to participate as a member, voting or otherwise, of any official committee appointed for
such matter, to collect and receive any monies or other securities or property payable or
deliverable upon the conversion or exchange of the Notes or upon any such claims and to distribute
the same, and any Custodian in any such judicial proceedings is hereby authorized by each Holder to
make such payments to the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agent and counsel, and any other amounts due the Trustee under
Section 7.07. Nothing herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such proceeding.
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Section 6.10 Priorities.
If the Trustee collects any money or property pursuant to this Article 6, it shall pay out the
money or property in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for interest accrued on the Notes, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Notes for interest;
Third: to Holders for principal amounts and premium and Additional Interest, if any, due and
unpaid on the Notes, ratably, without preference or priority of any kind, according to the amounts
due and payable on the Notes for principal; and
Fourth: to the Company or, if applicable, the Subsidiary Guarantors as their respective
interests may appear.
The Trustee may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.10. At least 15 days before such record date, the Trustee shall mail to
each Holder and the Company a notice that states the record date, the payment date and amount to be
paid.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable and
documented attorneys fees and expenses against any party litigant in the suit, having due regard
to the merits and good faith of the claims or defenses made by the party litigant. This Section
6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 hereof,
or a suit by Holders of more than 10% in aggregate principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default of which a Responsible Officer
of the Trustee shall have actual knowledge and after the curing of all such Events of Defaults
which may have occurred, undertakes to perform such duties and only such duties as are specifically
set forth in this Indenture. If an Event of Default of which a Responsible Officer of the Trustee
shall have actual knowledge has occurred and is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the
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same degree of care and skill in its
exercise, as a prudent person would exercise or use under the circumstances in the conduct of such
persons own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee shall be determined solely by the express provisions of
this Indenture and the Trustee need perform only those duties that are specifically set
forth in this Indenture and no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, with respect to certificates or opinions specifically required by any
provision hereof to be furnished to it, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of this Indenture;
provided, however, that the Trustee shall not be responsible for the accuracy or content of
any resolution, certificate, statement, opinion, report, document, order or other instrument
furnished to it hereunder.
(c) The Trustee may not be relieved from liabilities for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of this Section 7.01;
(2) the Trustee will not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee will not be liable with respect to any action it takes or omits to take
in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.
(d) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or incur any liability for the performance of any of its duties hereunder or the exercise of any of
its rights or powers. The Trustee will be under no obligation to exercise any of its rights and
powers under this Indenture at the request of any Holders, unless such Holder has offered to the
Trustee security and indemnity satisfactory to it against any loss, liability or expense.
(e) The Trustee will not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 7.01.
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Section 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an Officers Certificate
or an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits
to take in good faith in reliance on such Officers Certificate or Opinion of Counsel. The Trustee
may consult with counsel of its own selection and the advice of such counsel or any Opinion of
Counsel will be full and complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may execute any of the trusts or powers hereunder and perform any duties
hereunder either directly or through its attorneys and agents and will not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) The Trustee will not be liable for any action it takes or omits to take in good faith that
it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction
or notice from the Company will be sufficient if signed by an Officer of the Company.
(f) The Trustee will be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders unless such Holders have
offered to the Trustee indemnity or security satisfactory to it against the losses, liabilities and
expenses that might be incurred by it in compliance with such request or direction.
(g) In no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action.
(h) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Notes and this Indenture.
(i) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder.
(j) The Trustee may request that the Company deliver an Officers Certificate setting forth
the names of individuals and/or titles of officers authorized at such time to take
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specified actions pursuant to this Indenture, which Officers Certificate may be signed by any
person authorized to sign an Officers Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.
(k) The right of the Trustee to perform any discretionary or permissive act enumerated in this
Indenture shall not be construed as a duty, and the Trustee shall not be answerable for other than
its negligence or willful misconduct in the performance of such act.
(l) In the event the Company is required to pay Additional Interest, the Company will provide
written notice to the Trustee of the Companys obligation to pay Additional Interest no later than
15 days prior to the next Interest Payment Date, which notice shall set forth the amount of
Additional Interest to be paid by the Company. The Trustee shall not at any time be under any duty
or responsibility to any Holders to determine whether the Additional Interest is payable and the
amount thereof.
(m) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its rights to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and
other Person employed to act hereunder.
(n) The Trustee may request that the Company or any Subsidiary Guarantor deliver an Officers
Certificate setting forth the names of individuals and/or titles of officers authorized at such
time to take specified actions pursuant to this Indenture, which Officers Certificate may be
signed by any person authorized to sign an Officers Certificate, including any person specified as
so authorized in any such certificate previously delivered and not superseded.
(o) The Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request,
discretion, consent, order, bond, debenture or other paper or document, but such Trustee, in its
discretion, may make such further inquiry or investigation into such facts or matters as it may see
fit, and, if such Trustee shall determine to make such further inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Issuer, personally or by agent or
attorney at the sole cost of the Issuer and shall incur no liability or any kind by reason of such
inquiry or investigation.
(p) The Trustee may employ or retain such counsel, accountants, appraisers or other experts or
advisers as it may reasonably require for the purpose of determining and discharging its rights and
duties hereunder and shall not be responsible for any misconduct or negligence on the part of any
of them selected by the Trustee using due care.
(q) The Trustee shall not be liable for any action taken, suffered, or omitted to be taken by
it in good faith and reasonably believed by it to be authorized or within the discretion, or rights
or powers conferred upon it by this Indenture.
(r) The Trustee shall not be required to give any note, bond, or surety in respect of the
execution of the trusts and powers under this Indenture.
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(s) The Trustee shall not be responsible or liable for any failure or delay in the performance
of its obligations under this Indenture arising out of or caused, directly or indirectly, by
circumstances beyond its reasonable control, including, without limitation, acts of God,
earthquakes, fire, flood, terrorism, wars, and other military disturbances, sabotage, epidemics,
riots, interruptions, loss or malfunction of utilities, computer (hardware or software) or
communication services, accidents, labor disputes, acts of civil or military authorities and
governmental action.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Company or any Affiliate of the Company with the same rights it
would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days or resign. Any Agent may do the same with
like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustees Disclaimer.
The Trustee will not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the Companys use of the
proceeds from the Notes or any money paid to the Company or upon the Companys direction under any
provision of this Indenture, it will not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it will not be responsible for any
statement or recital herein or any statement in the Notes or any other document in connection with
the sale of the Notes or pursuant to this Indenture or the legality or validity of the Notes or
this Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is known to the Trustee,
the Trustee will mail to Holders of Notes a notice of the Default or Event of Default within 90
days after it occurs. Except in the case of a Default or Event of Default in payment of principal
of, premium or Additional Interest, if any, or interest on, any Note, the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Notes.
Section 7.06 Reports by Trustee to Holders of the Notes.
(a) No later than each July 15, beginning with the July 15 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee shall mail to the Holders of
the Notes a brief report dated as of such reporting date that complies with TIA § 313(a) (but if no
event described in TIA § 313(a) has occurred within the twelve months preceding the reporting date,
no report need be transmitted). The Trustee also will comply with TIA § 313(b)(2). The Trustee
will also transmit by mail all reports as required by TIA § 313(c).
(b) A copy of each report at the time of its mailing to the Holders of Notes will be mailed by
the Trustee to the Company and filed by the Trustee with the SEC and each
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stock exchange on which the Notes are listed in accordance with TIA § 313(d). The Company
will promptly notify the Trustee when the Notes are listed on any stock exchange or delisted
therefrom.
Section 7.07 Compensation and Indemnity.
(a) The Company will pay to the Trustee from time to time reasonable compensation for its
acceptance of this Indenture and services hereunder. The Trustees compensation will not be
limited by any law on compensation of a trustee of an express trust. The Company will reimburse
the Trustee promptly upon request for all reasonable and documented disbursements, advances and
expenses incurred or made by it in addition to the compensation for its services. Such expenses
will include the reasonable and documented compensation, disbursements and expenses of the
Trustees agents and counsel.
(b) The Company and each Subsidiary Guarantor, jointly and severally, will indemnify the
Trustee and any director, officer, employee or agent of the Trustee against any and all losses,
liabilities, claims, damages or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including, without limitation, the
reasonable and documented costs and expenses of enforcing this Indenture against the Company and
the Subsidiary Guarantors (including this Section 7.07) and defending itself against any claim
(whether asserted by the Company, the Subsidiary Guarantors, any Holder or any other Person) or
liability in connection with the exercise or performance of any of its powers or duties hereunder,
except to the extent any such loss, liability or expense may be attributable to its own negligence,
bad faith or willful misconduct. The Trustee will notify the Company promptly of any claim of
which a Responsible Officer has received written notice for which it may seek indemnity. Failure
by the Trustee to so notify the Company will not relieve the Company or any of the Subsidiary
Guarantors of their obligations hereunder. The Company or such Subsidiary Guarantor will defend
the claim and the Trustee will cooperate in the defense. The Trustee may have separate counsel and
the Company and the Subsidiary Guarantors, as applicable, will pay the reasonable and documented
fees and expenses of such counsel provided, however that the Company and any Subsidiary Guarantor
shall not be required to pay such fees and expenses if it assumes such indemnified parties defense
and, in such indemnified parties reasonable judgment, there is no conflict of interest between the
Company and the Subsidiary Guarantors, as applicable, and such parties in connection with such
defense. Neither the Company nor any Subsidiary Guarantor need pay for any settlement made without
its consent, which consent will not be unreasonably withheld.
(c) The obligations of the Company and the Subsidiary Guarantors under this Section 7.07 will
survive the satisfaction and discharge of this Indenture.
(d) To secure the Companys and the Subsidiary Guarantors payment obligations in this Section
7.07, the Trustee will have a Lien prior to the Notes on all money or property held or collected by
the Trustee, except that held in trust to pay principal and interest on particular Notes. Such
Lien will survive the satisfaction and discharge of this Indenture.
(e) When the Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(g) or (h) hereof occurs, the expenses and the compensation for
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the services (including the fees and expenses of its agents and counsel) are intended to
constitute expenses of administration under any Bankruptcy Law.
(f) The Trustee will comply with the provisions of TIA § 313(b)(2) to the extent applicable.
Section 7.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a successor Trustee will become
effective only upon the successor Trustees acceptance of appointment as provided in this Section
7.08.
(b) The Trustee may resign in writing at any time and be discharged from the trust hereby
created by so notifying the Company. The Holders of a majority in aggregate principal amount of
the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Company in
writing. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged bankrupt or insolvent or an order for relief is entered
with respect to the Trustee under any Bankruptcy Law;
(3) a custodian, receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for
any reason, the Company will promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
(d) If a successor Trustee does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company, or the Holders of at least 10% in
aggregate principal amount of the then outstanding Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee, after written request by any Holder who has been a Holder for at least six
months, fails to comply with Section 7.10 hereof, such Holder may petition at the expense of the
Company any court of competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
(f) A successor Trustee will deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee will
become effective, and the successor Trustee will have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee will mail a notice of its succession to
Holders. The retiring Trustee will promptly transfer all property held by it as
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Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been
paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of
the Trustee pursuant to this Section 7.08, the Companys obligations under Section 7.07 hereof will
continue for the benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation without any further
act will be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
There will at all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least $50,000,000
as set forth in its most recent published annual report of condition.
This Indenture will always have a Trustee who satisfies the requirements of TIA § 310(a)(1),
(2) and (5). The Trustee is subject to TIA § 310(b).
Section 7.11 Preferential Collection of Claims Against the Company.
The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA §
311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent
indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Legal Defeasance and Covenant Defeasance.
(a) The Company may at any time, at the option of its Boards of Directors evidenced by a
resolution set forth in an Officers Certificate, elect to have either clause (b) or (c) below
applied to all outstanding Notes upon compliance with the conditions set forth in Section 8.02.
(b) Upon the Companys exercise under clause (a) hereof of the option applicable to this
paragraph (b), the Company and any Subsidiary Guarantor shall, subject to the satisfaction of the
conditions set forth in Section 8.02, be deemed to have been discharged from their respective
obligations with respect to all outstanding Notes and the corresponding Subsidiary Guarantees, if
any, on the date the conditions set forth below are satisfied (hereinafter, Legal
Defeasance). For this purpose, Legal Defeasance means that the Company shall be deemed to
have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall
thereafter be deemed to be outstanding only for the purposes of
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Section 8.03 and the other Sections of this Indenture referred to in sub-clauses (i) and (ii)
in this paragraph, and to have satisfied all its other obligations under such Notes and this
Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following provisions, which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to
receive solely from the trust fund described in Section 8.03, and as more fully set forth in such
Section, payments in respect of the principal of, premium and Additional Interest, if any, and
interest on such Notes when such payments are due, (ii) the Companys obligations with respect to
such Notes under Article 2 and Section 4.02, (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Companys obligations in connection therewith and (iv)
this Article 8. Subject to compliance with this Article 8, the Company may exercise its option
under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c)
hereof.
(c) Upon the Companys exercise under paragraph (a) hereof of the option applicable to this
clause (c), the Company and each Subsidiary Guarantor, if any, shall, subject to the satisfaction
of the conditions set forth in Section 8.02, be released from their obligations, if any, under the
covenants contained in Sections 4.06 through 4.11, Section 4.14 and 4.15 and Section 5.01(a)(3) and
(a)(4) with respect to the outstanding Notes and the corresponding Subsidiary Guarantee, if any, on
and after the date the conditions set forth below are satisfied (hereinafter, Covenant
Defeasance), and the Notes shall thereafter be deemed not outstanding for the
purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences
of any thereof) in connection with such covenants, but shall continue to be deemed outstanding
for all other purposes hereunder (it being understood that such Notes shall not be deemed
outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with
respect to the outstanding Notes, the Company may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any
reference in any such covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under Section 6.01(d),
but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected
thereby. In addition, upon the Companys exercise under paragraph (a) hereof of the option
applicable to this paragraph (c), subject to the satisfaction of the conditions set forth in
Section 8.03 hereof, Section 6.01(c) shall not constitute an Event of Default with respect to
Sections 5.01(a)(3) and (a)(4), Section 6.01(d) shall not constitute an Event of Default with
respect to any other covenants or agreements in this Indenture or the Notes and Sections 6.01(e)
and 6.01(f) shall not constitute Events of Default.
Section 8.02 Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of either Section 8.01(b) or 8.01(c)
to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(A) the Company has deposited with the Trustee, in trust, money and/or U.S. Government
Obligations that through the payment of interest and principal in respect
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thereof in accordance with their terms will provide money in an amount sufficient to
pay the principal of, premium, if any, and accrued interest on the Notes on the Stated
Maturity of such payments in accordance with the terms of this Indenture and the Notes;
(B) the Company has delivered to the Trustee (1) an Opinion of Counsel to the effect
that, as a result of the Companys exercise of its option under Article 8.01(b) to effect a
Legal Defeasance or under Article 8.01(c) to effect a Covenant Defeasance, no tax
consequences will arise for the Holders as a result of the defeasance in that Holders will
not recognize income, gain or loss for federal income tax purposes and will be subject to
federal income tax on the same amount and in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not occurred, which Opinion
of Counsel, in the case of a Legal Defeasance, must be based upon either (i) a statute that
is enacted, a Treasury regulation that is promulgated and becomes effective or a revenue
ruling that is published, after, in each case, the Closing Date or (ii) a private letter
ruling requested by and addressed to the Trustee (which private letter ruling must be
attached to the Opinion of Counsel), which, in the case of each authority described in
clause (i) or (ii), provides that in circumstances comparable to a Legal Defeasance no tax
consequences will arise for the Holders as a result of the Legal Defeasance and (2) an
Opinion of Counsel to the effect that after the passage of 123 days following the deposit,
the trust fund will not be subject to the effect of Section 547 of the United States
Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law;
(C) immediately after giving effect to such deposit on a pro forma basis, no Event of
Default, or event that after the giving of notice or lapse of time or both would become an
Event of Default, shall have occurred and be continuing on the date of such deposit or
during the period ending on the 123rd day after the date of such deposit, and such deposit
shall not result in a breach or violation of, or constitute a default under, any other
material agreement or instrument to which the Company or any of its Subsidiaries is a party
or by which the Company or any of its Subsidiaries is bound; and
(D) if at such time the Notes are listed on a national securities exchange, the Company
has delivered to the Trustee an Opinion of Counsel to the effect that the Notes will not be
delisted as a result of such deposit, defeasance and discharge.
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Section 8.03
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Deposited Money and U.S. Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions. |
The Trustee or Paying Agent shall hold in trust all money or U.S. Government Obligations
deposited with it pursuant to this Article 8, and shall apply the deposited money and U.S.
Government Obligations in accordance with this Indenture to the payment of principal of, premium
and Additional Interest, if any, and interest on the Notes.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the money or U.S. Government Obligations deposited pursuant to Section 8.02
hereof or the principal, premium and Additional Interest, if any, and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the account of the Holders
of the outstanding Notes.
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Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay
to the Company from time to time upon the Companys request any money or U.S. Government
Obligations held by it as provided in Section 8.02 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification thereof delivered to
the Trustee, are in excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.04 Repayment to the Company.
The Trustee and the Paying Agent shall pay to the Company upon request any money held by them
for the payment of principal, premium or Additional Interest, if any, or interest that remains
unclaimed for two years; provided that the Trustee or such Paying Agent, before being required to
make any payment, may at the expense of the Company cause to be published once in a newspaper of
general circulation in The City of New York or mail to each Holder entitled to such money notice
that such money remains unclaimed and that after a date specified therein which shall be at least
30 days from the date of such publication or mailing any unclaimed balance of such money then
remaining shall be repaid to the Company. After payment to the Company, Holders entitled to such
money must look to the Company for payment as general creditors unless an applicable law designates
another Person.
Section 8.05 Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in
accordance with this Article 8 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Companys obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to this Article 8 until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with this Article 8; provided that if the Company has made any payment of interest on,
premium or Additional Interest, if any, or principal of any Notes because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying
Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Company, the Subsidiary Guarantors and the
Trustee, together, may amend or supplement this Indenture, the Notes and any Note Guarantee without
notice to or consent of any Holder to:
(1) cure any ambiguity, defect or inconsistency in this Indenture;
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(2) comply with the provisions of described under Section 5.01 or Section 4.15 hereof;
(3) comply with any requirements of the SEC in connection with the qualification of
this Indenture under the TIA;
(4) evidence and provide for the acceptance of appointment by a successor Trustee;
(5) add a Subsidiary Guarantor;
(6) to conform the text of this Indenture, the Notes or any Note Guarantee to any
provision of the Description of the Notes set forth in the Offering Memorandum intended to
be a verbatim recitation thereof; or
(7) make any change that, in the good faith opinion of the Board of Directors, does not
materially and adversely affect the rights of any Holder.
provided that the Company or Subsidiary Guarantor has delivered to the Trustee an Opinion of
Counsel and an Officers Certificate, each stating that such amendment or supplement complies with
the provisions of this Section 9.01.
Section 9.02 With Consent of Holders of Notes.
Subject to Section 6.07, the Company, the Subsidiary Guarantors, and the Trustee, together,
with the written consent of the Holder or Holders of not less than a majority in aggregate
principal amount of the outstanding Notes or any Note Guarantee, may amend or supplement this
Indenture, the Notes or the Note Guarantees without notice to any other Holders. Subject to
Section 6.07, the Holder or Holders of a majority in aggregate principal amount of the then
outstanding Notes may waive compliance by the Company with any provision of this Indenture, the
Notes or any Note Guarantee without notice to any other Holder. Without the consent of each Holder
affected, however, no amendment, supplement or waiver, including a waiver pursuant to (and to the
extent provided in) Section 6.04, may:
(1) change the Stated Maturity of the principal of, or any installment of interest on,
any Note;
(2) reduce the principal amount of, or premium, if any, or interest on, any Note;
(3) change the optional redemption dates or optional redemption prices of the Notes
from that stated under Section 3.07 hereof;
(4) change the place or currency of payment of principal of, or premium, if any, or
interest on, any Note;
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(5) impair the right to institute suit for the enforcement of any payment on or after
the Stated Maturity (or, in the case of a redemption, on or after the Redemption Date) of
any Note;
(6) waive a default in the payment of principal of, premium, if any, or interest on the
Notes;
(7) release any Subsidiary Guarantor from its Note Guarantee, except as provided in
this Indenture;
(8) amend or modify any of the provisions of this Indenture in any manner which
subordinates, or requires the subordination of, the Notes issued hereunder in right of
payment to any other Indebtedness of the Company or which subordinates, or requires the
subordination of, any Note Guarantee in right of payment to any other Indebtedness of the
Subsidiary Guarantor issuing any such Note Guarantee; or
(9) reduce the percentage or aggregate principal amount of outstanding Notes the
consent of whose Holders is necessary for waiver of compliance with the provisions of this
Indenture or for waiver of defaults under Section 6.02(1) or 6.04 hereof.
It shall not be necessary for the consent of the Holders under this Section 9.02 to approve
the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if
such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company shall mail to the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental indenture.
Section 9.03 Compliance with Trust Indenture Act.
From the date on which this Indenture is qualified under the TIA, every amendment, waiver or
supplement of this Indenture or the Notes or any Subsidiary Guarantee shall comply with the TIA as
then in effect.
Section 9.04 Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holders Note, even if notation of the consent is not
made on any Note. However, any such Holder or subsequent Holder may revoke the consent as to his
Note or portion of his Note by notice to the Trustee or the Company received before the date on
which the Trustee receives an Officers Certificate certifying that the Holders of the requisite
principal amount of Notes have consented (and not theretofore revoked such consent) to the
amendment, supplement or waiver.
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The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment, supplement or waiver. If a record
date is fixed, then notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall bind every Holder, unless
it makes a change described in any of clauses (1) through (7) of Section 9.02, in which case, the
amendment, supplement or waiver shall bind only each Holder of a Note who has consented to it and
every subsequent Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holders Note; provided that any such waiver shall not impair or affect the right of any
Holder to receive payment of principal of, premium or Additional Interest, if any, and interest on
a Note, on or after the respective due dates expressed in such Note, or to bring suit for the
enforcement of any such payment on or after such respective dates without the consent of such
Holder.
Section 9.05 Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note, the Company may require the
Holder of the Note to deliver it to the Trustee. The Company shall provide the Trustee with an
appropriate notation on the Note with respect to the changed terms and cause the Trustee to return
it to the Holder at the Companys expense. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue and the Trustee shall authenticate a
new Note that reflects the changed terms. Failure to make the appropriate notation or issue a new
Note shall not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver authorized pursuant to this
Article 9; provided that the Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver which affects the Trustees own rights, duties or immunities under
this Indenture. The Trustee shall be provided with, and shall be fully protected in relying upon,
an Opinion of Counsel and an Officers Certificate each complying with Sections 13.04 and 13.05 and
stating that the execution of any amendment, supplement or waiver authorized pursuant to this
Article 9 is authorized or permitted by this Indenture and constitutes the legal, valid and binding
obligations of the Company enforceable in accordance with its terms. Such Opinion of Counsel shall
be at the expense of the Company.
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ARTICLE 10
RESERVED
ARTICLE 11
NOTE GUARANTEES
Section 11.01 Guarantee.
(a) Subject to this Article 11, each of the Subsidiary Guarantors hereby, jointly and
severally, unconditionally guarantees on an unsecured, unsubordinated basis, to each Holder of a
Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of
the Company hereunder or thereunder, that:
(1) the principal of, premium and Additional Interest, if any, and interest on, the
Notes will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and interest on the Notes,
if any, if lawful, and all other obligations of the Company to the Holders or the Trustee
hereunder or thereunder will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and
(2) in case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so guaranteed for
whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same
immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a
guarantee of collection.
(b) The Subsidiary Guarantors hereby agree that their obligations hereunder are unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with
respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each Subsidiary Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenant that this Note Guarantee will not be discharged
except by complete performance of the obligations contained in the Notes and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar
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official acting in relation to either the Company or the Subsidiary Guarantors, any amount
paid by either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect.
(d) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation
in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of
all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the
Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the
maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof
for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event
of any declaration of acceleration of such obligations as provided in Article 6 hereof, such
obligations (whether or not due and payable) will forthwith become due and payable by the
Subsidiary Guarantors for the purpose of this Note Guarantee. The Subsidiary Guarantors will have
the right to seek contribution from any other Subsidiary Guarantor, or the Company, as the case may
be, so long as the exercise of such right does not impair the rights of the Holders under the Note
Guarantee.
Section 11.02 Limitation on Guarantor Liability.
Each Subsidiary Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that
it is the intention of all such parties that the Note Guarantee of such Subsidiary Guarantor not
constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law
to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the
Trustee, the Holders and the Subsidiary Guarantors hereby irrevocably agree that the obligations of
such Subsidiary Guarantor shall be limited to the maximum amount that shall, after giving effect to
such maximum amount and all other contingent and fixed liabilities of such Subsidiary Guarantor
that are relevant under such laws, and after giving effect to any collections from, rights to
receive contribution from or payments made by or on behalf of any other Subsidiary Guarantor in
respect of the obligations of such other Subsidiary Guarantor under this Article 11, result in the
obligations of such Subsidiary Guarantor under its Note Guarantee not constituting a fraudulent
transfer or conveyance.
Section 11.03 Execution and Delivery of Note Guarantees.
(a) To evidence its Note Guarantee set forth in Section 11.01 hereof, each Subsidiary
Guarantor hereby agrees that this Indenture shall be executed on behalf of such Subsidiary
Guarantor by one of its Officers.
(b) Each Subsidiary Guarantor hereby agrees that its Note Guarantee set forth in Section 11.01
hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any
notation of such Note Guarantee.
(c) If an Officer whose signature is on this Indenture no longer holds that office at the time
the Trustee authenticates the Note, the Note Guarantee shall be valid nevertheless.
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(d) The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall
constitute delivery of the Note Guarantee set forth in this Indenture on behalf of the Subsidiary
Guarantors.
(e) If required by Section 4.15 hereof, the Company shall cause any newly created or acquired
Wholly Owned Restricted Subsidiary that is not a Subsidiary Guarantor, or any newly created or
acquired Restricted Subsidiary which is not Wholly Owned if such future Restricted Subsidiary
guarantees other capital markets debt securities of the Company or of any other Restricted
Subsidiary, to comply with the provisions of Section 4.15 hereof and this Article 11, to the extent
applicable.
Section 11.04 Contribution.
Each Subsidiary Guarantor that makes a payment or distribution under its Note Guarantee shall
be entitled to contribution from any other Subsidiary Guarantor or the Company, as the case may be.
Section 11.05 Releases.
The Note Guarantee issued by any Subsidiary Guarantor shall be automatically and
unconditionally released and discharged upon:
(1) any sale, exchange or transfer to any Person (other than an Affiliate of the
Company) of Capital Stock of such Subsidiary Guarantor so that such Subsidiary Guarantor is
no longer a Restricted Subsidiary, or upon the designation of such Subsidiary Guarantor as
an Unrestricted Subsidiary, in each case in compliance with the terms of this Indenture;
(2) the release or discharge of the Guarantee which resulted in the creation of such
Note Guarantee, except a discharge or release by or as a result of payment under such
Guarantee; or
(3) upon Legal Defeasance in accordance with Article 8 or upon satisfaction and
discharge of this Indenture in compliance with Article 12;
provided that such release or discharge shall not become effective until the receipt by the Trustee
of an Officers Certificate stating that all conditions precedent to the release and discharge of
the Guarantee have been complied with.
Any Subsidiary Guarantor not released from its obligations under its Note Guarantee as
provided in this Section 11.05 shall remain liable for the full amount of principal of and interest
and premium and Additional Interest, if any, on the Notes and for the other obligations of any
Subsidiary Guarantor under this Indenture as provided in this Article 11.
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ARTICLE 12
SATISFACTION AND DISCHARGE
Section 12.01 Satisfaction and Discharge.
This Indenture shall be discharged and shall cease to be of further effect (except as to
surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in
this Indenture) as to all outstanding notes when:
(1) either:
(A) all of the Notes theretofore authenticated and delivered (except lost,
stolen or destroyed Notes which have been replaced or paid and Notes for whose
payment money has theretofore been deposited in trust by the Company and thereafter
repaid to the Company) have been delivered to the Trustee for cancellation, or
(B) all Notes not theretofore delivered to the Trustee for cancellation have
become due and payable pursuant to an optional redemption notice or otherwise or
will become due and payable within one year, and the Company has irrevocably
deposited or caused to be deposited with the Trustee funds in an amount sufficient
to pay and discharge the entire Indebtedness on the Notes not theretofore delivered
to the trustee for cancellation, for principal of, premium, if any, and interest on
the Notes to the date of deposit together with irrevocable instructions from the
Company directing the Trustee to apply such funds to the payment thereof at maturity
or redemption, as the case may be; and
(2) the Company has paid all other sums payable under this Indenture by the Company.
Subject to the next sentence and notwithstanding the foregoing paragraph, the Companys
obligations in Sections 2.05, 2.06, 2.07, 2.08, 4.01, 4.02, 7.07, 8.04 and 12.02 shall survive
until the Notes are no longer outstanding pursuant to the last paragraph of Section 2.08. After
the Notes are no longer outstanding, the Companys obligations in Sections 7.07, 8.04 and 12.02
shall survive such satisfaction and discharge.
(b) After such delivery or irrevocable deposit, the Trustee, upon delivery of an Officers
Certificate and an Opinion of Counsel stating that all conditions precedent under this Indenture
relating to the satisfaction and discharge of this Indenture have been complied with, shall
acknowledge in writing the discharge of the Companys obligations under the Notes and this
Indenture except for those surviving obligations specified above.
Section 12.02 Application of Trust Money.
Subject to the provisions of Section 8.04 hereof, all money deposited with the Trustee
pursuant to Section 12.01 hereof shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or through any
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Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium and Additional Interest,
if any) and interest for whose payment such money has been deposited with the Trustee; but such
money need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in
accordance with Section 12.01 hereof by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Companys and any Subsidiary Guarantors obligations under this Indenture and
the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section
12.01 hereof; provided that if the Company has made any payment of principal of, premium or
Additional Interest, if any, or interest on, any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive
such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE 13
MISCELLANEOUS
Section 13.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by,
or with another provision (an incorporated provision) included in this Indenture by
operation of, Sections 310 to 318 of the TIA, inclusive, such imposed duties or incorporated
provision shall control.
Section 13.02 Notices.
Any notice or communication by the Company, any Subsidiary Guarantor or the Trustee to the
others is duly given if in writing and delivered in Person or by first class mail (registered or
certified, return receipt requested), facsimile transmission or overnight air courier guaranteeing
next day delivery, to the others address:
If to the Company and/or any Subsidiary Guarantor:
MasTec, Inc.
800 S. Douglas Road, 12th Floor
Coral Gables, FL 33134
Facsimile No.: (305) 406-1886
Attention: Investor Relations
With a copy to:
Greenberg Traurig, P.A.
1221 Brickell Avenue
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Miami, FL 33131
Facsimile No.: (305) 579-6717
Attention: Barbara Oikle, Esq.
If to the Trustee:
U.S. Bank National Association
60 Livingston Avenue
EP-MN-WS3C
St. Paul, MN 55107
Facsimile No.: (651) 495-8097
Attention: Corporate Trust Administration
The Company, any Subsidiary Guarantor or the Trustee, by notice to the others, may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) will be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by
facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder will be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar. Any notice or communication will also be
so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it will not affect its sufficiency with
respect to other Holders.
If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it will mail a copy to the Trustee
and each Agent at the same time.
Section 13.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their
rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else
shall have the protection of TIA § 312(c).
Section 13.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take or refrain from taking
any action under this Indenture (other than in connection with the Authentication Order, dated the
date hereof, and delivered to the Trustee in connection with the issuance of the Initial Notes),
the Company shall, if requested by the Trustee, furnish to the Trustee:
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(1) an Officers Certificate in form and substance reasonably satisfactory to the
Trustee (which must include the statements set forth in Section 13.05 hereof) stating that,
in the opinion of the signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which must include the statements set forth in Section 13.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants have been satisfied.
Section 13.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) must comply
with the provisions of TIA § 314(e) and must include:
(1) a statement that the Person making such certificate or opinion has read such
covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been satisfied; provided, however, that with respect to matters of fact, an
Opinion of Counsel may rely on an Officers Certificate or certificates of public officials.
Section 13.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar
or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
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Section 13.07
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No Personal Liability of Incorporators, Stockholders, Officers, Directors or
Employees. |
No recourse for the payment of the principal of, premium and Additional Interest, if any, or
interest on any of the Notes or for any claim based thereon or otherwise in respect thereof, and no
recourse under or upon any obligation, covenant or agreement of any obligor in this Indenture, or
in any of the Notes or Note Guarantees or because of the creation of any Indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer (including, without
limitation, any Officer), director, employee or controlling person of the Company or any Subsidiary
or of any successor Person thereof. Each Holder, by accepting the
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Notes, waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. The waiver may not be effective to waive liabilities
under the federal securities laws.
Section 13.08 Governing Law.
THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 13.09 Successors.
All agreements of the Company in this Indenture and the Notes will bind its successors. All
agreements of the Trustee in this Indenture will bind its successors. All agreements of each
Subsidiary Guarantor in this Indenture will bind its successors, except as otherwise provided in
Section 5.01(b) hereof.
Section 13.10 Severability.
In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable,
then (to the extent permitted by applicable law) the validity, legality and enforceability of the
remaining provisions will not in any way be affected or impaired thereby.
Section 13.11 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy will be an
original, but all of them together represent the same agreement.
Section 13.12 Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part of
this Indenture and will in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
100
Dated as of January 31, 2007
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SIGNATURES
MASTEC, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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CHURCH & TOWER, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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MASTEC ASSET MANAGEMENT COMPANY, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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MASTEC BRAZIL I, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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MASTEC BRAZIL II, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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MASTEC CONTRACTING COMPANY, INC.
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By: |
/s/
Alberto de Cardenas
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Name: |
Alberto de Cardenas |
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Title: |
Vice President |
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MASTEC FC, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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MASTEC LATIN AMERICA, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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MASTEC NORTH AMERICA AC, LLC
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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MASTEC NORTH AMERICA, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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MASTEC OF TEXAS, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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MASTEC SERVICES COMPANY, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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MASTEC SPAIN, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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MASTEC TC, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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MASTEC VENEZUELA, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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U.S. BANK NATIONAL ASSOCIATION, as Trustee
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By: |
/s/ Richard Prokosch
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Name: |
Richard Prokosch |
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Title: |
Vice President |
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EXHIBIT A
[Face of Note]
[Language for Global Note to be inserted:] [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 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.]
[Additional Language for Restricted Note to be inserted:] [THIS NOTE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), AND ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A)
IT IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT (2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED
TO IN RULE 144(k) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE,
RESELL OR OTHERWISE TRANSFER THIS
A-1
NOTE EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3) or (7) OF REGULATION D
UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS
NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND IF SUCH TRANSFER IS IN RESPECT
OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES OF LESS THAN $100,000, AN OPINION OF COUNSEL ACCEPTABLE
TO THE ISSUER THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD
REFERRED TO IN RULE 144(k) UNDER THE SECURITIES ACT AFTER THE ORIGINAL ISSUANCE OF THE NOTES, THE
HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF
SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE, IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE
AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN
A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN,
THE TERMS OFFSHORE TRANSACTION, UNITED STATES AND U.S. PERSON HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE
TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTION.]
[Additional language for Regulation S Note to be inserted:]
[THE RIGHTS ATTACHING TO THIS REGULATION S GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING
ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).]
A-2
CUSIP No. [ ]
ISIN No. [ ]
75/8% Senior Notes due 2017
MASTEC, INC.
promises to pay to CEDE & CO. or registered assigns,
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the principal sum of |
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DOLLARS on February 1, 2017. |
Interest Payment Dates: February 1 and August 1, commencing August 1, 2007
Additional provisions of this Note are set forth on the other side of this Note.
Record Dates: January 15 and July 15
Dated: January 31, 2007
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MASTEC, INC.
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By: |
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Name: |
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Title: |
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A-3
Dated: January 31, 2007
This is one of the Notes referred to
in the within-mentioned Indenture:
U.S. BANK NATIONAL ASSOCIATION, as Trustee
A-4
[Reverse of Note]
75/8% Senior Notes due 2017
Capitalized terms used herein have the meanings assigned to them in the Indenture referred to
below unless otherwise indicated.
(1) INTEREST. MasTec, Inc., a Florida corporation (the Company), promises to pay
interest on the principal amount of this Note at
75/8% per annum from January 31, 2007 until maturity
and shall pay Additional Interest, if any, payable pursuant to Section 2(d) of the Registration
Rights Agreement referred to below. Interest and Additional Interest, if any, on the Notes will be
payable semiannually in arrears February 1 and August 1 of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (each, an Interest Payment Date).
Interest on the Notes will accrue from the most recent date to which interest has been paid or, if
no interest has been paid, from the date of issuance, until the principal hereof is due. The first
Interest Payment Date shall be August 1, 2007. The Company will pay interest on overdue principal
at the rate borne by the Notes, and it shall pay interest on overdue installments of interest at
the same rate borne by the Notes to the extent lawful. Interest will be computed on the basis of a
360 day year of twelve 30 day months.
(2) METHOD OF PAYMENT. The Company will pay interest on the Notes (except defaulted interest)
and Additional Interest, if any, to the Persons who are registered Holders of Notes at the close of
business on the January 15 and July 15 immediately preceding the Interest Payment Date, as the case
may be, even if such Notes are canceled after such record date and on or before such Interest
Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. If a Holder has given wire transfer instructions to the Company, the Company will remit
all principal, interest and premium and Additional Interest, if any, on that Holders Notes in
accordance with these instructions. All other payments on the Notes will be made at the office or
agency of the Paying Agent unless the Company elects to make interest payments by mailing a check
to the registered address of each Holder thereof. Such payment will be in such coin or currency of
the United States of America as at the time of payment is legal tender for payment of public and
private debts.
(3) PAYING AGENT AND REGISTRAR. Initially, U.S. Bank National Association, as the Trustee,
will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity.
(4) INDENTURE. The Company issued the Notes under an Indenture dated as of January 31, 2007
(the Indenture) among the Company, the Subsidiary Guarantors named therein and the
Trustee. The terms of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the TIA. The Notes are subject to all the terms and provisions of the
Indenture, and Holders are referred to the Indenture and the TIA for a statement of such terms. To
the extent any provision of this Note conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling.
A-5
The Notes are general senior unsecured obligations of the Company. This Note is one of the
Notes referred to in the Indenture. The Notes include the Initial Notes, any Additional Notes and
any Exchange Notes issued in exchange for Initial Notes or Additional Notes pursuant to the
Indenture. The Indenture imposes certain limitations on the ability of the Company and its
Restricted Subsidiaries to, among other things, make certain Investments and other Restricted
Payments, pay dividends and other distributions, incur Indebtedness, enter into consensual
restrictions upon the payment of certain dividends and distributions by such Restricted
Subsidiaries, enter into or permit certain transactions with Affiliates, create or incur Liens and
make Asset Sales. The Indenture also imposes limitations on the ability of the Company and each
Subsidiary Guarantor to consolidate or merge with or into any other Person or convey, transfer or
lease all or substantially all of its property.
To guarantee the due and punctual payment of the principal of, premium, if any, and interest
on the Notes (including Additional Interest, if any) when and as the same shall be due and payable,
whether at maturity, by acceleration or otherwise, according to the terms of the Notes and the
Indenture, the Subsidiary Guarantors have, jointly and severally, unconditionally guaranteed, on an
unsecured unsubordinated basis, the obligations of the Company under the Notes pursuant to the
terms of the Indenture.
(5) OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraphs (b) and (c) of this Paragraph 5, the Company will not
have the option to redeem the Notes prior to February 1, 2012. The Company may redeem the Notes,
in whole or in part, upon not less than 30 nor more than 60 days notice, at any time on or after
February 1, 2012. The redemption price for the Notes (expressed as a percentage of principal
amount) will be as follows, plus accrued and unpaid interest and Additional Interest, if any, to
the redemption date, if redeemed during the 12-month period commencing on February 1 of any year
set forth below:
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Year |
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Percentage |
2012 |
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103.813 |
% |
2013 |
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102.542 |
% |
2014 |
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101.271 |
% |
2015 and thereafter |
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100.000 |
% |
Unless the Company defaults in the payment of the redemption price, interest will cease to
accrue on the Notes or portions thereof called for redemption on the applicable redemption date.
(b) At any time prior to February 1, 2010, the Company may, on any one or more occasions,
redeem up to 35% of the principal amount of the Notes with the Net Cash Proceeds of one or more
sales of Capital Stock (other than Disqualified Stock) of the Company at a redemption price
(expressed as a percentage of principal amount) of 107.625%, plus accrued and unpaid interest and
Additional Interest, if any, to the redemption date;
provided that at least 65% of the aggregate
principal amount of the Notes originally issued on the Closing Date remains outstanding after each
such redemption (excluding Notes held by the Company and its
A-6
Subsidiaries) and notice of any such redemption is mailed within 60 days of each such sale of
Capital Stock.
(c) At any time prior to February 1, 2012, the Notes may also be redeemed or purchased, by or
on behalf of the Company, in whole or in part, at the Companys option, at a price equal to 100% of
the principal amount the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid
interest and Additional Interest, if any, to, the date of redemption, (subject to the right of
Holders of record on the relevant record date to receive interest due on the relevant interest
payment date).
(7) MANDATORY REDEMPTION. The Company is not required to make mandatory redemption or sinking
fund payments with respect to the Notes.
(8) NOTICE OF REDEMPTION. 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
the Trustee and 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 the
Indenture. Notes and portions of Notes selected will be in amounts of $1,000 or integral multiples
of $1,000 in excess thereof; provided that no Notes of $1,000 in principal amount or less will be
redeemed in part. Unless the Company defaults in the payment of the redemption price, interest
will cease to accrue on the Notes or portions thereof called for redemption on the applicable
redemption date.
(9) REPURCHASE AT THE OPTION OF HOLDER.
Upon the occurrence of a Change of Control, the Company will be obligated to make an Offer to
Purchase for all Notes then outstanding, at a purchase price equal to 101% of their principal
amount, plus accrued and unpaid interest and Additional Interest, if any, on the Notes repurchased
to the date of purchase (the Change of Control Payment Date). Within 30 days following
any Change of Control, the Company will mail a notice to each Holder describing the transaction or
transactions that constitute the Change of Control and making an Offer to Purchase Notes on the
Change of Control 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, pursuant to the procedures required
by the Indenture.
The Company is, subject to certain conditions, obligated to make an Offer to Purchase Notes at
100% of their outstanding principal amount, plus accrued and unpaid interest and Additional
Interest, if any, thereon to the date of repurchase with certain Net Cash Proceeds of certain sales
or other dispositions of assets in accordance with the Indenture.
(10) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in
denominations of $1,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes
may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer
documents and the Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture.
A-7
Neither the Company nor the Registrar is required to exchange or register the transfer of any
Note selected for redemption in whole or in part, except for the unredeemed portion of any Note
being redeemed in part. Also, neither the Company nor the Registrar is required to issue, exchange
or register the transfer of any Notes during a period beginning at the opening of business 15 days
before the day of any selection of Notes for redemption under Paragraph 5 and ending at the close
of business on the day of selection, and neither the Company nor the Registrar is required to
exchange or register the transfer of any Note during the period between a record date and the next
succeeding interest payment date.
(11) PERSONS DEEMED OWNERS. The registered Holder of a Note shall be treated as its owner for
all purposes.
(12) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Company, the
Subsidiary Guarantors and the Trustee together, with the consent of the Holder or Holders of not
less than a majority in aggregate principal amount of the outstanding Notes or any Note Guarantee,
may amend or supplement the Indenture, the Notes or the Note Guarantees without notice to any other
Holders. Subject to certain exceptions, the Holder or Holders of a majority in aggregate principal
amount of the then outstanding Notes may waive compliance by the Company with any provision of the
Indenture, the Notes, or any Note Guarantee without notice to any Holder. Without notice to or
consent of any Holder, the Company, the Subsidiary Guarantors and the Trustee, together, may amend
or supplement the Indenture, the Notes any Note Guarantee, to, among other things, cure any
ambiguity, defect or inconsistency in the Indenture, add a Subsidiary Guarantor, comply with any
requirements of the SEC in connection with the qualification of the Indenture under the TIA, or
conform the Indenture, the Notes or any Note Guarantee to any provision in the section entitled
Description of the Notes set forth in the Offering Memorandum intended to be a verbatim
recitation thereof or make any change that, in the good faith opinion of the Companys Board of
Directors, does not materially and adversely affect the rights of any Holder of a Note.
(13) DEFAULTS AND REMEDIES. If an Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of Notes then outstanding may declare all
the Notes to be due and payable immediately in the manner and with the effect provided in the
Indenture. Holders of Notes may not enforce the Indenture, the Note or any Note Guarantee except
as provided in the Indenture. The Trustee is not obligated to enforce the Indenture, the Notes or
any Note Guarantees, unless it has received security and indemnity satisfactory to it against any
loss, liability or expense. Subject to certain limitations, the Holders of at least a majority in
principal amount of the outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or power conferred on
the Trustee. Subject to certain exceptions, the Holders of not less than a majority in principal
amount of the outstanding Notes by notice to the Company and to the Trustee may waive any existing
Default or Event of Default and its consequences under the Indenture except a Default or Event of
Default in the payment of principal of, premium or Additional Interest, if any, or interest on any
Note;
provided that any such waiver would not conflict with any judgment or decree of a court of
competent jurisdiction. Subject to certain exceptions, the Holders of not less than a majority in
principal amount of the outstanding Notes may waive all past defaults and rescind and annul such
declaration and its consequences. The Company is required to deliver to the Trustee annually a
statement regarding
A-8
compliance with the Indenture, and the Company is required, upon becoming aware of any Default
or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of
Default.
(14) SATISFACTION AND DISCHARGE. Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Notes, the Note Guarantees and the Indenture if
the Company irrevocably deposits or causes to be deposited with the Trustee, funds in an amount
sufficient to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to
the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the
date of deposit together with irrevocable instructions from the Company directing the Trustee to
apply such funds to the payment thereof at maturity or redemption, as the case may be.
(15) DEFEASANCE AND DISCHARGE. Subject to the satisfaction of certain conditions as specified
in the Indenture, the Company will be deemed to have paid and will be discharged from any and all
obligations in respect of the Notes (except for certain obligations as specified in the Indenture)
on the 123rd day after the Company deposits with the Trustee, in trust, money and/or U.S.
Government Obligations that through the payment of interest and principal in respect thereof in
accordance with their terms will provide money in an amount sufficient to pay the principal of,
premium, if any, and accrued interest on the Notes on the Stated Maturity of such payments in
accordance with the terms of the Indenture.
(16) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other capacity, may
make loans to, accept deposits from, and perform services for the Company or its Affiliates, and
may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.
(17) NO RECOURSE AGAINST OTHERS. No recourse for the payment of the principal of, premium and
Additional Interest, if any, or interest on this Note or for any claim based thereon or otherwise
in respect thereof, and no recourse under or upon any obligation, covenant or agreement of any
obligor in the Indenture, or the Notes or any of the Note Guarantees or because of the creation of
any Indebtedness represented thereby, shall be had against any incorporator, stockholder, officer
(including, without limitation any Officer), director, employee or controlling person of the
Company or of any Subsidiary or of any successor Person thereof. Each Holder, by accepting this
Note, waives and releases all such liability. The waiver and release are part of the consideration
for the issuance of this Note. Such waiver may not be effective to waive liabilities under the
federal securities laws.
(18) AUTHENTICATION. This Note will not be valid until authenticated by the manual signature
of the Trustee or an authenticating agent.
(19) ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
A-9
(20) ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES.
In addition to the rights provided to Holders of Notes under the Indenture, Holders of Restricted
Global Notes and Restricted Definitive Notes will have all the rights set forth in the Registration
Rights Agreement dated as of January 31, 2007, among the Company, the Subsidiary Guarantors and the
Placement Agent or, in the case of Additional Notes, Holders of Restricted Global Notes and
Restricted Definitive Notes will have the rights set forth in one or more registration rights
agreements, if any, among the Company, the Subsidiary Guarantors and the other parties thereto,
relating to rights given by the Company and the Subsidiary Guarantors to the purchasers of any
Additional Notes (collectively, the Registration Rights Agreement).
(21) CUSIP NUMBERS, ISINS. The Company has caused CUSIP numbers and ISINs to be printed on
the Notes, and the Trustee may use CUSIP numbers and ISINs in notices of redemption as a
convenience to Holders. No representation is made as to the accuracy of such numbers either as
printed on the Notes or as contained in any notice of redemption, and reliance may be placed only
on the other identification numbers placed thereon.
(22) GOVERNING LAW. THE LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE
INDENTURE, THIS NOTE AND THE NOTE GUARANTEES.
The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture and/or the Registration Rights Agreement. Requests may be made to:
MasTec, Inc.
Facsimile No.: (305) 406-1886
Attention: Investor Relations
A-10
ASSIGNMENT FORM
To assign this Note, fill in the form below:
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(I) or (we) assign and transfer this Note to: |
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(Insert assignees legal name) |
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(Insert assignees soc. sec. or tax I.D. no.)
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(Print or type assignees name, address and zip code)
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and irrevocably appoint |
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to transfer this Note on the books of the Company. The agent may substitute another to act for him. |
Date:
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Your Signature: |
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(Sign exactly as your name appears on the face of this Note) |
Signature Guarantee*:
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* |
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Participant in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee). |
A-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 4.09 or
4.13 of the Indenture, check the appropriate box below:
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o Section 4.09
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o Section 4.13 |
If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 4.09 or Section 4.13 of the Indenture, state the amount you elect to have purchased:
$
Date:
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Your Signature: |
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(Sign exactly as
your name appears on the face of this Note) |
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Tax Identification No.: |
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Signature Guarantee*:
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* |
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Participant in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee). |
A-12
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
[To be inserted for Rule 144A Global Note]
[The following exchanges of a part of this Rule 144A Global Note for an interest in another
Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive
Note for an interest in this Rule 144A Global Note, have been made:
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Amount of |
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Amount of |
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Principal Amount |
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decrease in |
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increase in |
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at Maturity |
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Principal Amount |
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Principal Amount |
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of this Global Note |
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Signature of |
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at Maturity |
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at Maturity |
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following such |
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authorized officer |
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of |
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of |
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decrease |
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of Trustee or |
Date of Exchange |
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this Global Note |
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this Global Note |
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(or increase) |
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Custodian] |
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[To be inserted for Regulation S Global Note]
[The following exchanges of a part of this Regulation S Global Note for an interest in another
Global Note, or of other Restricted Global Notes for an interest in this Regulation S Global Note,
have been made:
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Amount of |
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Amount of |
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Principal Amount |
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decrease in |
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increase in |
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at Maturity |
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Principal Amount |
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Principal Amount |
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of this Global Note |
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Signature of |
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at Maturity |
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at Maturity |
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following such |
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authorized officer |
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of |
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of |
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decrease |
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of Trustee or |
Date of Exchange |
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this Global Note |
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this Global Note |
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(or increase) |
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Custodian] |
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A-13
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
MasTec, Inc.
800 S. Douglas Road, 12th Floor
Coral Gables, FL 33134
Facsimile No.: (305) 406-1886
U.S. Bank National Association
60 Livingston Avenue
EP-MN-WS3C
St. Paul, MN 55107
Facsimile No.: (651) 495-8097
Attention: Corporate Trust Administration
Re:
75/8% Senior Notes due 2017
Reference is hereby made to the Indenture, dated as of January 31, 2007 (the
Indenture), among MasTec, Inc., as issuer (the
Company), the Subsidiary
Guarantors party thereto and U.S. Bank National Association, a national banking association, as
trustee. Capitalized terms used but not defined herein shall have the meanings given to them in
the Indenture.
, (the Transferor) owns and proposes to transfer the Note[s] or
interest in such Note[s] specified in Annex A hereto, in the principal amount of $ in
such Note[s] or interests (the Transfer), to (the
Transferee), as further specified in Annex A hereto. In connection with the Transfer,
the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. o Check if Transferee will take delivery of a beneficial interest in the 144A Global Note
or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is being effected pursuant
to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the
Securities Act), and, accordingly, the Transferor hereby further certifies that the
beneficial interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believes is purchasing the beneficial interest or Definitive Note for its own account,
or for one or more accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a qualified institutional buyer within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in
compliance with any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted
Definitive Note and in the Indenture and the Securities Act.
B-1
2. o Check if Transferee will take delivery of a beneficial interest in a Legended
Regulation S Global Note or a Restricted Definitive Note pursuant to Regulation S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is
not being made to a Person in the United States and (x) at the time the buy order was originated,
the Transferee was outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United States or (y) the
transaction was executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows that the transaction
was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made
in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the
Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the
Private Placement Legend printed on the Legended Regulation S Global Note and/or the Restricted
Definitive Note and in the Indenture and the Securities Act.
3. o Check and complete if Transferee will take delivery of a beneficial interest in the IAI
Global Note or a Restricted Definitive Note pursuant to any provision of the Securities Act other
than Rule 144A or Regulation S. The Transfer is being effected in compliance with the transfer
restrictions applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue
sky securities laws of any state of the United States, and accordingly the Transferor hereby
further certifies that (check one):
(a) o such Transfer is being effected pursuant to and in accordance with Rule 144 under
the Securities Act;
or
(b) o such Transfer is being effected to the Company or a subsidiary thereof;
or
(c) o such Transfer is being effected pursuant to an effective registration statement
under the Securities Act and in compliance with the prospectus delivery requirements of
the Securities Act;
or
(d) o such Transfer is being effected to an Institutional Accredited Investor and
pursuant to an exemption from the registration requirements of the Securities Act other
than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further
certifies that it has not engaged in any general solicitation
B-2
within the meaning of Regulation D under the Securities Act and the Transfer complies
with the transfer restrictions applicable to beneficial interests in a Restricted Global
Note or Restricted Definitive Notes and the requirements of the exemption claimed, which
certification is supported by (1) a certificate executed by the Transferee in the form of
Exhibit D to the Indenture and (2) if such Transfer is in respect of a principal amount of
Notes at the time of transfer of less than $250,000, an Opinion of Counsel provided by the
Transferor or the Transferee (a copy of which the Transferor has attached to this
certification), to the effect that such Transfer is in compliance with the Securities Act.
Upon consummation of the proposed transfer in accordance with the terms of the Indenture,
the transferred beneficial interest or Definitive Note will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the IAI Global Note
and/or the Restricted Definitive Notes and in the Indenture and the Securities Act.
4. o Check if Transferee will take delivery of a beneficial interest in an Unrestricted
Global Note or of an Unrestricted Definitive Note.
(a) o Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant to
and in accordance with Rule 144 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any state of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on
Restricted Definitive Notes and in the Indenture.
(b) o Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance
with the transfer restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on Restricted Definitive Notes and in the Indenture.
(c) o Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected
pursuant to and in compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any State of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will not be subject to
B-3
the restrictions on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.
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[Insert Name of Transferor]
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By: |
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Name:
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Title: |
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Dated:
B-4
ANNEX A TO CERTIFICATE OF TRANSFER
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1. |
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The Transferor owns and proposes to transfer the following: |
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[CHECK ONE OF (a) OR (b)]
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(a |
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a beneficial interest in the: |
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144A Global Note (CUSIP ), or |
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(ii)
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Regulation S Global Note (CUSIP ), or |
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(iii)
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IAI Global Note (CUSIP ); or |
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2. |
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After the Transfer the Transferee will hold: |
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[CHECK ONE]
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(ii)
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(iii)
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(iv)
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in accordance with the terms of the Indenture. |
B-5
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
MasTec, Inc.
800 S. Douglas Road, 12th Floor
Coral Gables, FL 33134
Facsimile No.: (305) 406-1886
U.S. Bank National Association
60 Livingston Avenue
EP-MN-WS3C
St. Paul, MN 55107
Facsimile No.: (651) 495-8097
Attention: Corporate Trust Administration
Re: 75/8% Senior Notes due 2017
(CUSIP )
Reference is hereby made to the Indenture, dated as of January 31, 2007 (the
Indenture), among MasTec, Inc., as issuer (the Company), the Initial Subsidiary
Guarantors party thereto and U.S. Bank National Association, a national banking association, as
trustee. Capitalized terms used but not defined herein shall have the meanings given to them in
the Indenture.
, (the Owner) owns and proposes to exchange the Note[s] or
interest in such Note[s] specified herein, in the principal amount of $ in such Note[s]
or interests (the Exchange). In connection with the Exchange, the Owner hereby certifies
that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global
Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note
(a) o Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial
interest in an Unrestricted Global Note. In connection with the Exchange of the Owners beneficial
interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an
equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owners own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance
with the Securities Act of 1933, as amended (the Securities Act), (iii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are not required in order
to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted
Global Note is being acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
C-1
(b) o Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted
Definitive Note. In connection with the Exchange of the Owners beneficial interest in a
Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Definitive Note is being acquired for the Owners own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.
(c) o Check if Exchange is from Restricted Definitive Note to beneficial interest in an
Unrestricted Global Note. In connection with the Owners Exchange of a Restricted Definitive Note
for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owners own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are not required in order
to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired
in compliance with any applicable blue sky securities laws of any state of the United States.
(d) o Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note. In
connection with the Owners Exchange of a Restricted Definitive Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the
Owners own account without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes
(a) o Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted
Definitive Note. In connection with the Exchange of the Owners beneficial interest in a
Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner
hereby certifies that the Restricted Definitive Note is being acquired for the Owners own account
without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the
Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and
in the Indenture and the Securities Act.
C-2
(b) o Check if Exchange is from Restricted Definitive Note to beneficial interest in a
Restricted Global Note. In connection with the Exchange of the Owners Restricted Definitive Note
for a beneficial interest in the [CHECK ONE]
o 144A Global Note,
Regulation S Global Note, IAI
o Global Note with an equal principal amount, the Owner o hereby certifies (i) the beneficial interest
is being acquired for the Owners own account without transfer and (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and
pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue
sky securities laws of any state of the United States. Upon consummation of the proposed Exchange
in accordance with the terms of the Indenture, the beneficial interest issued will be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.
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[Insert Name of Transferor]
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By: |
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Dated:
C-3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
MasTec, Inc.
800 S. Douglas Road, 12th Floor
Coral Gables, FL 33134
Facsimile No.: (305) 406-1886
U.S. Bank National Association
60 Livingston Avenue
EP-MN-WS3C
St. Paul, MN 55107
Facsimile No.: (651) 495-8097
Attention: Corporate Trust Administration
Re: 75/8% Senior Notes due 2017
Reference is hereby made to the Indenture, dated as of January 31, 2007 (the
Indenture), among MasTec, Inc., as issuer (the Company), the initial subsidiary
guarantors party thereto and U.S. Bank National Association, a national banking association, as
trustee. Capitalized terms used but not defined herein shall have the meanings given to them in
the Indenture.
In connection with our proposed purchase of $ aggregate principal amount of:
(a) o a beneficial interest in a Global Note, or
(b) o a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any interest therein is subject
to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be
bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except
in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended
(the Securities Act).
2. We understand that the offer and sale of the Notes have not been registered under the
Securities Act, and that the Notes and any interest therein may not be offered or sold except as
permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for
which we are acting as hereinafter stated, that if we should sell the Notes or any interest
therein, we will do so only (A) to the Company or any subsidiary thereof, (B) in accordance with
Rule 144A under the Securities Act to a qualified institutional buyer
D-1
(as defined therein), (C) to an institutional accredited investor (as defined below) that,
prior to such transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you
and to the Company a signed letter substantially in the form of this letter and, if such transfer
is in respect of a principal amount of Notes, at the time of transfer of less than $250,000, an
Opinion of Counsel in form reasonably acceptable to the Company to the effect that such transfer is
in compliance with the Securities Act, (D) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (E) pursuant to the provisions of Rule 144(k) under the
Securities Act or (F) pursuant to an effective registration statement under the Securities Act, and
we further agree to provide to any Person purchasing the Definitive Note or beneficial interest in
a Global Note from us in a transaction meeting the requirements of clauses (A) through (E) of this
paragraph a notice advising such purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or beneficial interest therein, we
will be required to furnish to you and the Company such certifications, legal opinions and other
information as you and the Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional accredited investor (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) and have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased by us for our own
account or for one or more accounts (each of which is an institutional accredited investor) as to
each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.
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[Insert Name of Accredited Investor]
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By: |
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Name:
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Title: |
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Dated:
D-2
EXHIBIT E
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL INDENTURE (this Supplemental Indenture), dated as of ___,
200___, among ___(the New Guarantor), a subsidiary of MasTec, Inc., a
Florida corporation (the Company), and U.S. Bank National Association, a national banking
association, as trustee under the Indenture referred to below (the Trustee).
W I T N E S S E T H
WHEREAS, the Company and the existing Subsidiary Guarantors have heretofore executed and
delivered to the Trustee an indenture (as amended, supplemented or otherwise modified, the
Indenture), dated as of January 31, 2007 providing for the issuance of 75/8% Senior Notes
due 2017 (the Notes);
WHEREAS, Section 4.15 of the Indenture provides that under certain circumstances the New
Guarantor shall execute and deliver to the Trustee a supplemental indenture pursuant to which the
New Guarantor shall unconditionally guarantee all of the Companys obligations under the Notes and
the Indenture on the terms and conditions set forth herein (the Note Guarantee); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the Company and the existing
Subsidiary Guarantors are authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the New Guarantor, the Company and the
Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes
as follows:
1. DEFINED TERMS. Defined terms used herein without definition shall have the meanings
assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The New Guarantor hereby agrees, jointly and severally with all
existing Subsidiary Guarantors (if any), to provide an unconditional guarantee on the terms and
subject to the conditions set forth in Article 11 of the Indenture and to be bound by all other
applicable provisions of the Indenture and the Notes and to perform all of the obligations and
agreements of a Subsidiary Guarantor under the Indenture.
3. NO RECOURSE AGAINST OTHERS. No recourse for the payment of the principal of, premium, if
any, or interest on any of the Notes or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of any Obligor in this
Indenture, or in any of the Notes or Note Guarantees or because of the creation of any Indebtedness
represented thereby, shall be had against any incorporator, stockholder, officer, director,
employee or controlling person of the Company or of any
E-1
Subsidiary or of any successor Person thereof. Each Holder, by accepting the Notes, waives and
releases all such liability. The waiver and release are part of the consideration for the issuance
of the Notes. Such waiver may not be effective to waive liabilities under the federal securities
laws.
4. NOTICES. All notices or other communications to the New Guarantor shall be given as
provided in Section 13.02 of the Indenture.
5. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURES PART OF INDENTURE. Except as expressly
amended hereby, the Indenture is in all respects ratified and confirmed and all the terms,
conditions and provisions thereof shall remain in full force and effect. This Supplemental
Indenture shall form a part of the Indenture for all purposes, and every holder of Notes heretofore
or hereafter authenticated and delivered shall be bound hereby.
6. GOVERNING LAW. THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture.
Each signed copy shall be an original, but all of them together represent the same agreement.
8. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not
affect the construction hereof.
9. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the validity or
sufficiency of this Supplemental Indenture. The recitals and statements contained herein are
deemed to be solely those of the New Guarantor and the Company.
E-2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed and attested, all as of the date first above written.
Dated: , 20___
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[NEW GUARANTOR]
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MASTEC, INC.
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By: |
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CHURCH & TOWER, INC.
MASTEC ASSET MANAGEMENT COMPANY, INC.
MASTEC BRAZIL I, INC.
MASTEC BRAZIL II, INC.
MASTEC CONTRACTING COMPANY, INC.
MASTEC FC, INC.
MASTEC LATIN AMERICA, INC.
MASTEC NORTH AMERICA AC, LLC
MASTEC NORTH AMERICA, INC.
MASTEC OF TEXAS, INC.
MASTEC SERVICES COMPANY, INC.
MASTEC SPAIN, INC.
MASTEC TC, INC.
MASTEC VENEZUELA, INC.
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E-3
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U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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E-4
EX-4.2 Registration Rights Agreement
Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the Agreement) is made and entered into January
31, 2007, among MASTEC, INC., a Florida corporation (the Company), and the guarantors
signatory hereto (each, a Guarantor and collectively, the Guarantors) and
MORGAN STANLEY & CO. INCORPORATED (the Placement Agent).
This Agreement is made pursuant to the Placement Agreement dated January 24, 2007, between the
Company, the guarantors named therein and the Placement Agent (the Placement Agreement),
which provides for the sale by the Company to the Placement Agent of an aggregate of $150,000,000
principal amount of the Companys 7 5/8% Senior Notes Due 2017 (the Securities). In
order to induce the Placement Agent to enter into the Placement Agreement, the Company has agreed
to provide to the Placement Agent and its direct and indirect transferees the registration rights
set forth in this Agreement. The execution of this Agreement is a condition to the closing under
the Placement Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms shall have the following
meanings:
1933 Act shall mean the Securities Act of 1933, as amended from time to time.
1934 Act shall mean the Securities Exchange Act of 1934, as amended from time to
time.
Closing Date shall mean the Closing Date as defined in the Placement Agreement.
Company shall have the meaning set forth in the preamble and shall also include
the Companys successors.
Exchange Offer shall mean the exchange offer by the Company of Exchange Securities
for Registrable Securities pursuant to Section 2(a) hereof.
Exchange Offer Registration shall mean a registration under the 1933 Act effected
pursuant to Section 2(a) hereof.
Exchange Offer Registration Statement shall mean an exchange offer registration
statement on Form S-4 (or, if applicable, on another appropriate form) and all amendments
and supplements to such registration statement, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by reference therein.
Exchange Securities shall mean securities issued by the Company and guaranteed by
the Guarantors under the Indenture containing terms identical to the Securities (except that
(i) interest thereon shall accrue from the last date on which interest was paid on the
Securities or, if no such interest has been paid, from February 1, 2007 and (ii) the
Exchange Securities will not contain restrictions on transfer) and to be offered to Holders
of Securities in exchange for Securities pursuant to the Exchange Offer.
Free Writing Prospectus means each free writing prospectus (as defined in Rule 405
under the Securities Act) prepared by or on behalf of the Company or used by the Company in
connection with the sale of the Securities or the Exchange Securities.
Guarantors shall have the meaning set forth in the preamble hereto and shall
include any Guarantors successor.
Holder shall mean the Placement Agent, for so long as it owns any Registrable
Securities, and each of its successors, assigns and direct and indirect transferees who
become registered owners of Registrable Securities under the Indenture; provided
that for purposes of Sections 4 and 5 of this Agreement, the term Holder shall include
Participating Broker-Dealers (as defined in Section 4(a)).
Indenture shall mean the Indenture relating to the Securities dated as of January
31, 2007 between the Company and U.S. Bank National Association, as trustee, and as the same
may be amended from time to time in accordance with the terms thereof.
Issuer Information shall mean material information about the Company, the
Guarantors or any of their respective securities that has been provided by or on behalf of
the Company and/or the Guarantors.
Majority Holders shall mean the Holders of a majority of the aggregate principal
amount of outstanding Registrable Securities; provided that whenever the consent or
approval of Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or any of its affiliates (as such term
is defined in Rule 405 under the 1933 Act) (other than the Placement Agent or subsequent
Holders of Registrable Securities if such subsequent holders are deemed to be such
affiliates solely by reason of their holding of such Registrable Securities) shall not be
counted in determining whether such consent or approval was given by the Holders of such
required percentage or amount.
Person shall mean an individual, partnership, limited liability company,
corporation, trust or unincorporated organization, or a government or agency or political
subdivision thereof.
Placement Agent shall have the meaning set forth in the preamble.
-2-
Placement Agreement shall have the meaning set forth in the preamble.
Prospectus shall mean the prospectus included in a Registration Statement,
including any preliminary prospectus, and any such prospectus as amended or supplemented by
any prospectus supplement, including a prospectus supplement with respect to the terms of
the offering of any portion of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to such prospectus, and in each case
including all material incorporated by reference therein.
Registrable Securities shall mean the Securities; provided, however, that the
Securities shall cease to be Registrable Securities (i) when a Registration Statement with
respect to such Securities shall have been declared effective under the 1933 Act and such
Securities shall have been disposed of pursuant to such Registration Statement, (ii) when
such Securities have been sold to the public pursuant to Rule 144 (or any similar provision
then in force, but not Rule 144A) under the 1933 Act or (iii) when such Securities shall
have ceased to be outstanding.
Registration Expenses shall mean any and all expenses incident to performance of
or compliance by the Company and the Guarantors with this Agreement, including without
limitation: (i) all SEC, stock exchange or National Association of Securities Dealers, Inc.
registration and filing fees, (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws (including reasonable fees and
disbursements of counsel for any underwriters or Holders in connection with blue sky
qualification of any of the Exchange Securities or Registrable Securities), (iii) all
expenses of any Persons in preparing or assisting in preparing, word processing, printing
and distributing any Registration Statement, any Prospectus, any amendments or supplements
thereto, any underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) all rating agency
fees, (v) all fees and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vi) the fees and disbursements of the Trustee and its counsel,
(vii) the fees and disbursements of counsel for the Company and the Guarantors and, in the
case of a Shelf Registration Statement, the fees and disbursements of one counsel for the
Holders (which counsel shall be selected by the Majority Holders and which counsel may also
be counsel for the Placement Agent) and (viii) the fees and disbursements of the independent
public accountants of the Company and the Guarantors, including the expenses of any special
audits or cold comfort letters required by or incident to such performance and compliance,
but excluding fees and expenses of counsel to the underwriters (other than fees and expenses
set forth in clause (ii) above) or the Holders and underwriting discounts and commissions
and transfer taxes, if any, relating to the sale or disposition of Registrable Securities by
a Holder.
Registration Statement shall mean any registration statement of the Company and
the Guarantors that covers any of the Exchange Securities or Registrable Securities pursuant
to
-3-
the provisions of this Agreement and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated by
reference therein.
SEC shall mean the Securities and Exchange Commission.
Securities shall have the meaning set forth in the preamble.
Shelf Registration shall mean a registration effected pursuant to Section 2(b)
hereof.
Shelf Registration Statement shall mean a shelf registration statement of the
Company and the Guarantors pursuant to the provisions of Section 2(b) of this Agreement
which covers all of the Registrable Securities (but no other securities unless approved by
the Holders whose Registrable Securities are covered by such Shelf Registration Statement)
on an appropriate form under Rule 415 under the 1933 Act, or any similar rule that may be
adopted by the SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference therein.
TIA shall have the meaning set forth in Section 3(m) hereof.
Trustee shall mean the trustee with respect to the Securities under the Indenture.
Underwriter shall have the meaning set forth in Section 3 hereof.
Underwritten Registration or Underwritten Offering shall mean a
registration in which Registrable Securities are sold to an Underwriter for reoffering to
the public.
2. Registration Under the 1933 Act.
(a) To the extent not prohibited by any applicable law or applicable interpretation of the
Staff of the SEC (the Staff), the Company and the Guarantors shall use their commercially
reasonable efforts to cause to be filed an Exchange Offer Registration Statement after the date of
the original issuance of the Securities (the Issue Date), covering the offer by the
Company and the Guarantors to the Holders to exchange all of the Registrable Securities for
Exchange Securities and to have such Registration Statement remain effective until the closing of
the Exchange Offer. The Company and the Guarantors shall use their commercially reasonable efforts
to cause such Registration Statement to be declared effective under the 1933 Act. The Company and
the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration
Statement has been declared effective by the SEC and use their commercially reasonable efforts to
have the Exchange Offer consummated not later than October 31, 2007. The Company and the
Guarantors shall commence the Exchange Offer by mailing the related exchange offer Prospectus and
accompanying documents to each Holder stating, in addition to such other disclosures as are
-4-
required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and
that all Registrable Securities validly tendered and not withdrawn will be accepted for
exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business
days from the date such notice is mailed) (each an Exchange Date and collectively,
the Exchange Dates);
(iii) that any Registrable Security not tendered will remain outstanding and continue to
accrue interest (but not Additional Interest), but will not retain any rights under this
Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange
Offer will be required to surrender such Registrable Security, together with the enclosed
letters of transmittal, to the institution and at the address (located in the Borough of
Manhattan, The City of New York) specified in the notice prior to the close of business on
the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than the close of
business on the last Exchange Date, by sending to the institution and at the address
(located in the Borough of Manhattan, The City of New York) specified in the notice a
telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the
principal amount of Registrable Securities delivered for exchange and a statement that such
Holder is withdrawing his election to have such Securities exchanged.
As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof tendered and not validly
withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable
Securities or portions thereof so accepted for exchange by the Company and the Guarantors
and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an
Exchange Security equal in principal amount to the principal amount of the Registrable
Securities surrendered by such Holder.
The Company and the Guarantors shall use their commercially reasonable efforts to complete the
Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act,
the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not
violate applicable law or any applicable interpretation of the Staff. Upon the Placement
-5-
Agents
request, the Company and the Guarantors shall inform the Placement Agent of the names and addresses
of the Holders to whom the Exchange Offer is made, and the Placement Agent shall have the right,
subject to applicable law, to contact such Holders and otherwise facilitate the tender of
Registrable Securities in the Exchange Offer.
If the Company and the Guarantors effect the Exchange Offer, the Company and the Guarantors
shall be entitled to close the Exchange Offer twenty (20) business days after such commencement
(provided that the Company and the Guarantors have accepted all the Securities theretofore validly
tendered in accordance with the terms of the Exchange Offer).
Each holder participating in the Exchange Offer shall be required to represent to the Company
and the Guarantors in writing that at the time of the consummation of the Exchange Offer (i) any
Exchange Securities received by such Holder will be acquired in the ordinary course of business,
(ii) such Holder will have no arrangements or understanding with any Person to participate in the
distribution (within the meaning of the 1933 Act) of the Exchange Securities and (iii) such Holder
is not an affiliate of either of the Company or any of the Guarantors within the meaning if Rule
405 of the 1933 Act, or if it is an affiliate such Holder will comply with the registration and
prospectus delivery requirements of the 1933 Act to the extent applicable, (iv) if such Holder is
not a broker dealer, that it is not engaged in and does not intend to engage in, the distribution
of the Exchange Securities and (v) if such Holder is a broker dealer, that it will receive Exchange
Securities for its own account in exchange for Securities that were acquired as a result of market
making activities or other trading activities and that it will be required to acknowledge that it
will deliver a prospectus in connection with the resale of such Exchange Securities.
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer
Registration provided for in Section 2(a) above is not available or may not be consummated as soon
as practicable after the last Exchange Date because it would violate applicable law or the
applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other
reason consummated by September 21, 2007 or (iii) the Exchange Offer has been completed and in the
opinion of counsel for the Placement Agent a Registration Statement must be filed and a Prospectus
must be delivered by the Placement Agent in connection with any offering or sale of Registrable
Securities because the Securities held by it are not eligible to be exchanged for Exchange
Securities in the Exchange Offer, the Company and the Guarantors shall use their commercially
reasonable efforts to cause to be filed as soon as practicable after such determination, date or
notice of such opinion of counsel is given to the Company and the Guarantors, as the case may be, a
Shelf Registration Statement providing for the sale by the Holders of all of the Registrable
Securities and to have such Shelf Registration Statement declared effective by the SEC. In the
event the Company and the Guarantors are required to file a Shelf Registration Statement solely as
a result of the matters referred to in clause (iii) of the preceding sentence, the Company
and the Guarantors shall use their commercially reasonable efforts to file and have declared
effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with
respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined
Registration Statement with the Exchange Offer Registration Statement) with respect to offers and
sales of Registrable Securities held by the Placement Agent after completion of the Exchange
-6-
Offer.
The Company and the Guarantors agree to use their commercially reasonable efforts to keep the
Shelf Registration Statement continuously effective until the earliest of (i) the time when the
Registrable Securities covered by the Shelf Registration Statement can be sold pursuant to Rule 144
under the 1933 Act without any limitations under clauses (c), (e), (f) and (h) of Rule 144, (ii)
two years from the Issue Date or (iii) the date on which all Registrable Securities covered by the
Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The
Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement if
required by the rules, regulations or instructions applicable to the registration form used by the
Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other
rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with
respect to information relating to such Holder, and to use their commercially reasonable efforts to
cause any such amendment to become effective and such Shelf Registration Statement to become usable
as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders
of Registrable Securities copies of any such supplement or amendment promptly after its being used
or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the
registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such
Holders Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf
Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC; provided, however, that, if,
after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf
Registration Statement is interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, such Registration Statement will
be deemed not to have become effective during the period of such interference until the offering of
Registrable Securities pursuant to such Registration Statement may legally resume. In the event
the Exchange Offer is not consummated and the Shelf Registration Statement is not declared
effective on or prior to October 31, 2007, the interest rate on the Securities will be increased by
0.25% per annum for the first 90-day period thereafter, and the amount of such additional interest
will increase by an additional 0.25% for each subsequent 90-day period, up to a maximum of 1.0%
over the original interest rate on the Securities (Additional Interest). At the time the
Exchange Offer is consummated or the Shelf Registration Statement is declared effective by the SEC,
the interest rate on the Securities shall revert to the original interest rate on the Closing Date
and the Company and the Guarantors shall no longer be required to pay Additional Interest.
(e) Without limiting the remedies available to the Placement Agent and the Holders, the
Company and the Guarantors acknowledge that any failure by the Company and the Guarantors to comply
with their obligations under Section 2(a) and Section 2(b) hereof may result in material
irreparable injury to the Placement Agent or the Holders for which there is no adequate remedy at
law, that it will not be possible to measure damages for such injuries precisely and that, in the
event of any such failure, the Placement Agent or any Holder may obtain such relief as may
-7-
be
required to specifically enforce the Companys obligations under Section 2(a) and Section 2(b)
hereof.
3. Registration Procedures.
(a) In connection with the obligations of the Company and the Guarantors with respect to the
Registration Statements pursuant to Section 2(a) and Section 2(b) hereof, the Company and
the Guarantors shall as expeditiously as possible:
(b) prepare and file with the SEC a Registration Statement on the appropriate form under the
1933 Act, which form (x) shall be selected by the Company and the Guarantors and (y) shall,
in the case of a Shelf Registration, be available for the sale of the Registrable Securities
by the selling Holders thereof and (z) shall comply as to form in all material respects with
the requirements of the applicable form and include all financial statements required by the
SEC to be filed therewith, and use their commercially reasonable efforts to cause such
Registration Statement to become effective and remain effective in accordance with Section 2
hereof;
(c) prepare and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such Registration Statement effective for
the applicable period and cause each Prospectus to be supplemented by any required
prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424 under the
1933 Act; to keep each Prospectus current during the period described under Section 4(3) and
Rule 174 under the 1933 Act that is applicable to transactions by brokers or dealers with
respect to the Registrable Securities or Exchange Securities;
(d) in the case of a Shelf Registration, furnish to each Holder of Registrable Securities,
to counsel for the Placement Agent, to counsel for the Holders and to each Underwriter of an
Underwritten Offering of Registrable Securities, if any, without charge, as many copies of
each Prospectus, including each preliminary Prospectus, and any amendment or supplement
thereto and such other documents as such Holder or Underwriter may reasonably request, other
than exhibits to documents incorporated by reference or exhibits thereto or documents
available on the SECs Electronic Data Gathering, Analysis and Retrieval System
(EDGAR), in order to facilitate the public sale or other disposition of the
Registrable Securities; and the Company and the Guarantors consent to the use of such
Prospectus and any amendment or supplement thereto in accordance with applicable law
by each of the selling Holders of Registrable Securities and any such Underwriters in
connection with the offering and sale of the Registrable Securities covered by and in the
manner described in such Prospectus or any amendment or supplement thereto in accordance
with applicable law;
(e) use their commercially reasonable efforts to register or qualify the Registrable
Securities under all applicable state securities or blue sky laws of such jurisdictions as
-8-
any Holder of Registrable Securities covered by a Registration Statement shall reasonably
request in writing by the time the applicable Registration Statement is declared effective
by the SEC, to cooperate with such Holders in connection with any filings required to be
made with the National Association of Securities Dealers, Inc. and do any and all other acts
and things which may be reasonably necessary or advisable to enable such Holder to
consummate the disposition in each such jurisdiction of such Registrable Securities owned by
such Holder; provided, however, that the Company and the Guarantors shall
not be required to (i) qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for this Section 3(d),
(ii) file any general consent to service of process or (iii) subject itself to taxation in
any such jurisdiction if it is not so subject;
(f) in the case of a Shelf Registration, notify each Holder of Registrable Securities,
counsel for the Holders and counsel for the Placement Agent promptly and, if requested by
any such Holder or counsel, confirm such advice in writing (i) when a Registration Statement
has become effective and when any post-effective amendment thereto has been filed and
becomes effective, (ii) of any request by the SEC or any state securities authority for
amendments and supplements to a Registration Statement and Prospectus or for additional
information after the Registration Statement has become effective, (iii) of the issuance by
the SEC or any state securities authority of any stop order suspending the effectiveness of
a Registration Statement or the initiation of any proceedings for that purpose, (iv) if,
between the effective date of a Registration Statement and the closing of any sale of
Registrable Securities covered thereby, the representations and warranties of the Company
and the Guarantors contained in any underwriting agreement, securities sales agreement or
other similar agreement, if any, relating to the offering cease to be true and correct in
all material respects or if the Company or the Guarantors receives any notification with
respect to the suspension of the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation of any proceeding for such purpose, (v) of the happening of
any event during the period a Shelf Registration Statement is effective which makes any
statement made in such Registration Statement or the related Prospectus untrue in any
material respect or which requires the making of any changes in such Registration Statement
or Prospectus in order to make the statements therein not misleading and (vi) of any
determination by the Company and the Guarantors that a post-effective amendment to a
Registration Statement would be appropriate;
(g) use commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest possible moment and
provide immediate notice to each Holder of the withdrawal of any such order;
(h) in the case of a Shelf Registration, furnish to each Holder of Registrable Securities,
without charge, at least one conformed copy of each Registration Statement and any
post-effective amendment thereto (without documents incorporated therein by reference or
exhibits thereto, unless requested);
-9-
(i) in the case of a Shelf Registration, cooperate with the selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends and enable such
Registrable Securities to be in such denominations (consistent with the provisions of the
Indenture) and registered in such names as the selling Holders may reasonably request at
least one business day prior to the closing of any sale of Registrable Securities;
(j) in the case of a Shelf Registration, upon the occurrence of any event contemplated by
Section 3(e)(v) hereof, use their commercially reasonable efforts to prepare and file with
the SEC a supplement or post-effective amendment to a Registration Statement or the related
Prospectus or any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable Securities,
such Prospectus will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The Company and the Guarantors agree to notify the
Holders to suspend use of the Prospectus as promptly as practicable after the occurrence of
such an event, and the Holders hereby agree to suspend use of the Prospectus until the
Company and the Guarantors have amended or supplemented the Prospectus to correct such
misstatement or omission;
(k) a reasonable time prior to the filing of any Registration Statement, any Prospectus, any
amendment to a Registration Statement or amendment or supplement to a Prospectus or any
document which is to be incorporated by reference into a Registration Statement or a
Prospectus after initial filing of a Registration Statement, provide copies of such document
to the Placement Agent and its counsel (and, in the case of a Shelf Registration Statement,
the Holders and their counsel) and make such of the representatives of the Company as shall
be reasonably requested by the Placement Agent or its counsel (and, in the case of a Shelf
Registration Statement, the Holders or their counsel) available for discussion of such
document, and shall not at any time file or make any amendment to the Registration
Statement, any Prospectus or any amendment of or supplement to a Registration Statement or a
Prospectus or any document which is to be incorporated by reference into a Registration
Statement or a Prospectus, of which the Placement Agent and its counsel (and, in the case of
a Shelf Registration Statement, the Holders and their counsel) shall not have previously
been advised and furnished a copy or to which the Placement Agent or its counsel (and, in
the case of a Shelf Registration Statement, the Holders or their
counsel) shall object;
(l) obtain a CUSIP number for all Exchange Securities or Registrable Securities, as the case
may be, not later than the effective date of a Registration Statement;
(m) cause the Indenture to be qualified under the Trust Indenture Act of 1939, as amended
(the TIA), in connection with the registration of the Exchange Securities or
Registrable Securities, as the case may be, cooperate with the Trustee and the Holders to
effect such changes to the Indenture as may be required for the Indenture to be so qualified
-10-
in accordance with the terms of the TIA and execute, and use their commercially reasonable
efforts to cause the Trustee to execute, all documents as may be required to effect such
changes and all other forms and documents required to be filed with the SEC to enable the
Indenture to be so qualified in a timely manner;
(n) in the case of a Shelf Registration, make available for inspection by a representative
of the Holders of the Registrable Securities, any Underwriter participating in any
disposition pursuant to such Shelf Registration Statement, and attorneys and accountants
designated by the Holders, at reasonable times and in a reasonable manner, all financial and
other records, pertinent documents and properties of the Company and the Guarantors, and
cause the respective officers, directors and employees of the Company and the Guarantors to
supply all information reasonably requested by any such representative, Underwriter,
attorney or accountant in connection with a Shelf Registration Statement;
(o) use their commercially reasonable efforts to cause the Exchange Securities or
Registrable Securities, as the case may be, to be rated by two nationally recognized
statistical rating organizations (as such term is defined in Rule 436(g)(2) under the 1933
Act); and
(p) in the case of a Shelf Registration, enter into such customary agreements and take all
such other actions in connection therewith (including those requested by the Holders of a
majority of the Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities including, but not limited to, an Underwritten
Offering and in such connection, (i) to the extent possible, make such representations and
warranties to the Holders and any Underwriters of such Registrable Securities with respect
to the business of the Company and its subsidiaries, the Registration Statement, Prospectus
and documents incorporated by reference or deemed incorporated by reference, if any, in each
case, in form, substance and scope as are customarily made by issuers to underwriters in
underwritten offerings and confirm the same if and when requested, (ii) obtain opinions of
counsel to the Company and the Guarantors (which counsel and opinions, in form, scope and
substance, shall be reasonably satisfactory to the Holders and such Underwriters and their
respective counsel) addressed to each selling Holder and Underwriter of Registrable
Securities, covering the matters customarily covered in opinions requested in underwritten
offerings, (iii) obtain cold comfort letters from the independent registered public
accountants of the Company and the Guarantors (and, if necessary, any other certified public
accountant of any subsidiary of the Company, or of any business acquired by the Company or
the Guarantors for which financial statements and financial data are or are required to be
included in the Registration Statement) addressed to each selling Holder and Underwriter of
Registrable Securities, such letters to be in customary form and covering matters of the
type customarily covered in cold comfort letters in connection with underwritten
offerings, and (iv) deliver such documents and certificates as may be reasonably requested
by the Holders of a majority in principal amount of the Registrable Securities being sold or
the Underwriters, and which are customarily delivered in underwritten offerings, to evidence
the continued validity of the representations and
- 11 -
warranties of the Company and the Guarantors made pursuant to clause (i) above and to
evidence compliance with any customary conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Company may require each Holder of
Registrable Securities to furnish to the Company such information regarding the Holder and the
proposed distribution by such Holder of such Registrable Securities as the Company may from time to
time reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder agrees that, upon receipt of any
notice from the Company or the Guarantors of the happening of any event of the kind described in
Section 3(e)(v) hereof, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to a Registration Statement until such Holders receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof, and, if so directed by the
Company or the Guarantors, such Holder will deliver to the Company and the Guarantors (at its
expense) all copies in its possession, other than permanent file copies then in such Holders
possession, of the Prospectus covering such Registrable Securities current at the time of receipt
of such notice. If the Company and the Guarantors shall give any such notice to suspend the
disposition of Registrable Securities pursuant to a Registration Statement, the Company and the
Guarantors shall extend the period during which the Registration Statement shall be maintained
effective pursuant to this Agreement by the number of days during the period from and including the
date of the giving of such notice to and including the date when the Holders shall have received
copies of the supplemented or amended Prospectus necessary to resume such dispositions. The
Company and the Guarantors may give any such notice only twice during any 365 day period and any
such suspensions may not exceed 45 days for each suspension and there may not be more than two
suspensions in effect during any 365 day period.
Notwithstanding the foregoing (and anything else to the contrary in this Agreement), the
Company and the Guarantors may allow a Shelf Registration Statement to cease to be effective if the
Board of Directors of the Company determines in good faith that it is in the Companys best
interests not to disclose the existence of facts surrounding any proposed or pending material
corporate transaction involving the Company or a Guarantor, and the Company notifies the Holders of
Registrable Securities promptly after such Board of Directors makes such determination; provided,
however, that such period shall not be greater than 60 days (whether or not consecutive) in the
aggregate, and provided further that the period referred to in this paragraph during which the
Company and the Guarantors agree to use commercially reasonable efforts to keep such Shelf
Registration Statement effective shall be extended by the number of days during which such Shelf
Registration Statement was not effective pursuant to the foregoing provision.
The Holders of Registrable Securities covered by a Shelf Registration Statement who desire to
do so may sell such Registrable Securities in an Underwritten Offering. In any such Underwritten
Offering, the investment banker and manager (the Underwriter) that will administer the
offering will be selected by the Majority Holders of the Registrable Securities included in such
offering, subject to the approval of the Company, which approval shall not be
- 12 -
unreasonably withheld or delayed.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Staff of the SEC has taken the position that any broker-dealer that receives Exchange
Securities for its own account in the Exchange Offer in exchange for Securities that were acquired
by such broker-dealer as a result of market-making or other trading activities (a
Participating Broker-Dealer), may be deemed to be an underwriter within the meaning of
the 1933 Act and must deliver a prospectus meeting the requirements of the 1933 Act in connection
with any resale of such Exchange Securities.
The Company and the Guarantors understand that it is the Staffs position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution
containing a statement to the above effect and the means by which Participating Broker-Dealers may
resell the Exchange Securities, without naming the Participating Broker-Dealers or specifying the
amount of Exchange Securities owned by them, such Prospectus may be delivered by Participating
Broker-Dealers to satisfy their prospectus delivery obligation under the 1933 Act in connection
with resales of Exchange Securities for their own accounts, so long as the Prospectus otherwise
meets the requirements of the 1933 Act.
(b) In light of the above, notwithstanding the other provisions of this Agreement, the Company
and the Guarantors agree that the provisions of this Agreement as they relate to a Shelf
Registration shall also apply to an Exchange Offer Registration to the extent, and with such
reasonable modifications thereto as may be, reasonably requested by the Placement Agent or by one
or more Participating Broker-Dealers, in each case as provided in clause (ii) below, in order to
expedite or facilitate the disposition of any Exchange Securities by Participating Broker-Dealers
consistent with the positions of the Staff recited in Section 4(a) above; provided that:
(i) the Company and the Guarantors shall not be required to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement, as would otherwise be
contemplated by Section 3(i), (A) after the Participating Broker-Dealers shall have disposed
of the Registrable Securities or (B) for a period exceeding 180 days after the last Exchange
Date (as such period may be extended pursuant to the penultimate paragraph of Section 3 of
this Agreement) and Participating Broker-Dealers shall not be authorized by the Company and
the Guarantors to deliver and shall not deliver such Prospectus after such date or period in
connection with the resales contemplated by this Section 4; and
(ii) the application of the Shelf Registration procedures set forth in Section 3 of this
Agreement to an Exchange Offer Registration, to the extent not required by the positions of
the Staff or the 1933 Act and the rules and regulations thereunder, will be in conformity
with the reasonable request to the Company and the Guarantors by the Placement Agent or with
the reasonable request in writing to the Company by one or more broker-dealers who certify
to the Placement Agent and the Company and the Guarantors in writing that they
- 13 -
anticipate that they will be Participating Broker-Dealers; and provided
further that, in connection with such application of the Shelf Registration
procedures set forth in Section 3 to an Exchange Offer Registration, the Company and the
Guarantors shall be obligated (x) to deal only with one entity representing the
Participating Broker-Dealers, which shall be Morgan Stanley & Co. Incorporated unless it
elects not to act as such representative, (y) to pay the fees and expenses of only one
counsel representing the Participating Broker-Dealers, which shall be counsel to the
Placement Agent unless such counsel elects not to so act and (z) to cause to be delivered
only one, if any, cold comfort letter with respect to the Prospectus in the form existing
on the last Exchange Date and with respect to each subsequent amendment or supplement, if
any, effected during the period specified in clause (i) above.
(c) The Placement Agent shall have no liability to the Company, the Guarantors or any Holder
with respect to any request that it may make pursuant to Section 4(b) above.
- 14 -
5. Indemnification and Contribution.
(a) The Company and each of the Guarantors agree to indemnify and hold harmless the Placement
Agent, each Holder and each Person, if any, who controls the Placement Agent or any Holder within
the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, or is under common
control with, or is controlled by, the Placement Agent or any Holder, from and against all losses,
claims, damages and liabilities (including, without limitation, any legal or other expenses
reasonably incurred by the Placement Agent, any Holder or any such controlling or affiliated Person
in connection with defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in any Registration Statement
(or any amendment thereto) pursuant to which Exchange Securities or Registrable Securities were
registered under the 1933 Act, including all documents incorporated therein by reference, or caused
by any omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or caused by any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus (as amended or supplemented
if the Company and the Guarantors shall have furnished any amendments or supplements thereto), any
Free Writing Prospectus or any issuer information (Issuer Information) filed or required
to be filed pursuant to Rule 433(d) under the 1933 Act, or caused by any omission or alleged
omission to state therein a material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to the Placement Agent or any Holder
furnished to the Company in writing by Morgan Stanley & Co. Incorporated or any selling Holder
expressly for use therein. In connection with any Underwritten Offering permitted by Section 3,
the Company and each of the Guarantors will also indemnify the Underwriters, if any, selling
brokers, dealers and similar securities industry professionals participating in the distribution,
their officers and directors and each Person who controls such Persons (within the meaning of the
1933 Act and the 1934 Act) to the same extent as provided above with respect to the indemnification
of the Holders, if requested in connection with any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company,
the Guarantors, the Placement Agent and the other selling Holders, and each of their respective
directors, officers who sign the Registration Statement and each Person, if any, who controls the
Company or the Guarantors, the Placement Agent and any other selling Holder within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 1934 Act to the same extent as the foregoing
indemnity from the Company and the Guarantors to the Placement Agent and the Holders, but only with
reference to information relating to such Holder furnished to the Company in writing by such Holder
expressly for use in any Registration Statement (or any amendment thereto), any Prospectus (or any
amendment or supplement thereto) or in any Free Writing Prospectus or Issuer Information.
(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to either
- 15 -
paragraph (a) or paragraph (b) above, such Person (the indemnified party) shall promptly
notify the Person against whom such indemnity may be sought (the indemnifying party) in
writing and the indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified party and any others
the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of
such counsel related to such proceeding. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them. It is understood that the indemnifying
party shall not, in connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (a) the fees and expenses of more than one separate firm (in addition to any local
counsel) for the Placement Agent and all Persons, if any, who control the Placement Agent within
the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, (b) the fees and
expenses of more than one separate firm (in addition to any local counsel) for the Company, the
Guarantors, their respective directors and officers who sign the Registration Statement and each
Person, if any, who controls the Company or the Guarantors within the meaning of either such
Section and (c) the fees and expenses of more than one separate firm (in addition to any local
counsel) for all Holders and all Persons, if any, who control any Holders within the meaning of
either such Section, and that all such fees and expenses shall be reimbursed as they are incurred.
In such case involving the Placement Agent and Persons who control the Placement Agent, such firm
shall be designated in writing by Morgan Stanley & Co. Incorporated. In such case involving the
Holders and such Persons who control Holders, such firm shall be designated in writing by the
Majority Holders. In all other cases, such firm shall be designated by the Company. The
indemnifying party shall not be liable for any settlement of any proceeding effected without its
written consent but, if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any
loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and
third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such settlement is entered
into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party for such fees and expenses
of counsel in accordance with such request prior to the date of such settlement. No indemnifying
party shall, without the prior written consent of the indemnified party, effect any settlement of
any pending or threatened proceeding in respect of which such indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or paragraph (b) of this Section 5 is
unavailable to an indemnified party or insufficient in respect of any losses, claims,
- 16 -
damages or liabilities, then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities in such proportion as
is appropriate to reflect the relative fault of the indemnifying party or parties on the one hand
and of the indemnified party or parties on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Company and the Guarantors, on the
one hand, and the Holders, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the Company and the
Guarantors or by the Holders and the parties relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Holders respective obligations
to contribute pursuant to this Section 5(d) are several in proportion to the respective principal
amount of Registrable Securities of such Holder that were registered pursuant to a Registration
Statement.
(e) The Company, the Guarantors and each Holder agree that it would not be just or equitable
if contribution pursuant to this Section 5 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an indemnified party as a result
of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed
to include, subject to the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 5, no Holder shall be required to indemnify
or contribute any amount in excess of the amount by which the total price at which Registrable
Securities were sold by such Holder exceeds the amount of any damages that such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 5 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any indemnified party at
law or in equity.
The indemnity and contribution provisions contained in this Section 5 shall remain operative
and in full force and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of the Placement Agent, any Holder or any Person controlling the
Placement Agent or any Holder, or by or on behalf of the Company, the Guarantors, their respective
officers or directors or any Person controlling the Company or the Guarantors, (iii) acceptance of
any of the Exchange Securities and (iv) any sale of Registrable Securities pursuant to a Shelf
Registration Statement.
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6. Miscellaneous.
(a) No Inconsistent Agreements. The Company and the Guarantors have not entered into,
and on or after the date of this Agreement will not enter into, any agreement which is inconsistent
with the rights granted to the Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders hereunder do not in any
way conflict with and are not inconsistent with the rights granted to the holders of the Companys
or the Guarantors other issued and outstanding securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement, waiver or consent;
provided, however, that no amendment, modification, supplement, waiver or consent
to any departure from the provisions of Section 5 hereof shall be effective as against any Holder
of Registrable Securities unless consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, registered first-class mail, telex, telecopier, or any
courier guaranteeing overnight delivery (i) if to a Holder, at the most current address given by
such Holder to the Company by means of a notice given in accordance with the provisions of this
Section 6(c), which address initially is, with respect to the Placement Agent, the address set
forth in the Placement Agreement; and (ii) if to the Company and the Guarantors, initially at the
Companys address set forth in the Placement Agreement and thereafter at such other address, notice
of which is given in accordance with the provisions of this Section 6(c).
All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five business days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt is acknowledged, if
telecopied; and on the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be concurrently delivered
by the Person giving the same to the Trustee, at the address specified in the Indenture.
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(d) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors, assigns and transferees of each of the parties, including, without
limitation and without the need for an express assignment, subsequent Holders; provided
that nothing herein shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Placement Agreement. If any transferee of
any Holder shall acquire Registrable Securities, in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all of the terms of this Agreement,
and by taking and holding such Registrable Securities such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of this Agreement and
such Person shall be entitled to receive the benefits hereof. The Placement Agent (in its capacity
as Placement Agent) shall have no liability or obligation to the Company or the Guarantors with
respect to any failure by a Holder to comply with, or any breach by any Holder of, any of the
obligations of such Holder under this Agreement.
(e) Third Party Beneficiary. The Holders shall be third party beneficiaries to the
agreements made hereunder between the Company and the Guarantors, on the one hand, and the
Placement Agent, on the other hand, and shall have the right to enforce such agreements directly to
the extent it deems such enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(f) Counterparts. This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same agreement. Facsimile
signatures shall constitute original signatures for all purposes of this Agreement.
(g) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. This Agreement shall be governed by the laws of the State of New
York.
(i) Severability. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable,
the validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
- 19 -
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
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MASTEC, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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CHURCH & TOWER, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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MASTEC ASSET MANAGEMENT COMPANY, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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MASTEC BRAZIL I, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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MASTEC BRAZIL II, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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MASTEC CONTRACTING COMPANY, INC.
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By: |
/s/ Alberto de Cardenas
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Name: |
Alberto de Cardenas |
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Title: |
Vice President |
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MASTEC FC, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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MASTEC LATIN AMERICA, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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MASTEC NORTH AMERICA AC, LLC
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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MASTEC NORTH AMERICA, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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MASTEC OF TEXAS, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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MASTEC SERVICES COMPANY, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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MASTEC SPAIN, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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MASTEC TC, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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MASTEC VENEZUELA, INC.
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By: |
/s/ C. Robert Campbell
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Name: |
C. Robert Campbell |
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Title: |
Executive Vice President and CFO |
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Confirmed and accepted as of
the date first above written:
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MORGAN STANLEY & CO. INCORPORATED |
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By:
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/s/ Whitner Marshall |
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Name: Whitner Marshall |
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Title: Managing Director |
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Execution Version
REGISTRATION RIGHTS AGREEMENT
Dated January 31, 2007
among
MASTEC, INC.
and
THE GUARANTORS NAMED HEREIN
and
MORGAN STANLEY & CO. INCORPORATED