COMPASS MINERALS INTERNATIONAL, INC.
4.875% Senior Notes due 2024
INDENTURE
Dated as of June 23, 2014
U.S. BANK NATIONAL ASSOCIATION
Trustee
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Page
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ARTICLE 1
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Definitions and Incorporation by Reference
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SECTION 1.01.
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Definitions
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1
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SECTION 1.02.
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Other Definitions
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16
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SECTION 1.03.
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Rules of Construction
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17
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ARTICLE 2
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The Notes
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SECTION 2.01.
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Form and Dating
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18
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SECTION 2.02.
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Execution and Authentication
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18
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SECTION 2.03.
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Registrar and Paying Agent
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19
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SECTION 2.04.
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Paying Agent To Hold Money in Trust
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20
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SECTION 2.05.
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Noteholder Lists
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20
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SECTION 2.06.
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Transfer and Exchange
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20
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SECTION 2.07.
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Replacement Notes
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21
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SECTION 2.08.
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Outstanding Notes
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21
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SECTION 2.09.
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Temporary Notes
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22
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SECTION 2.10.
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Cancellation
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22
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SECTION 2.11.
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Defaulted Interest
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22
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SECTION 2.12.
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CUSIP Numbers, ISINs, etc
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22
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SECTION 2.13.
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Issuance of Additional Notes
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22
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ARTICLE 3
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Redemption
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SECTION 3.01.
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Notice to the Trustee
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23
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SECTION 3.02.
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Selection of Notes to Be Redeemed
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23
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SECTION 3.03.
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Notice of Redemption
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24
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SECTION 3.04.
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Effect of Notice of Redemption
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25
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SECTION 3.05.
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Deposit of Redemption Price
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25
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SECTION 3.06.
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Notes Redeemed in Part
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25
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SECTION 3.07.
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Optional Redemption
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25
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ARTICLE 4
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Covenants
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SECTION 4.01.
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Payment of Notes
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27
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SECTION 4.02.
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SEC Reports
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27
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SECTION 4.03.
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Change of Control
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28
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SECTION 4.04.
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Limitation on Liens
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30
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SECTION 4.05.
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Limitation on Sale/Leaseback Transactions
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30
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SECTION 4.06.
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Additional Subsidiary Guarantees
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31
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SECTION 4.07.
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Compliance Certificate
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31
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SECTION 4.08.
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Further Instruments and Acts
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31
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ARTICLE 5
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Successor Company
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SECTION 5.01.
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When Company May Merge or Transfer Assets
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31
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ARTICLE 6
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Defaults and Remedies
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SECTION 6.01.
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Events of Default
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32
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SECTION 6.02.
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Acceleration
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34
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SECTION 6.03.
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Other Remedies
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35
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SECTION 6.04.
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Waiver of Past Defaults
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35
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SECTION 6.05.
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Control by Majority
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35
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SECTION 6.06.
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Limitation on Suits
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36
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SECTION 6.07.
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Rights of Holders to Receive Payment
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36
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SECTION 6.08.
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Collection Suit by Trustee
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36
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SECTION 6.09.
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Trustee May File Proofs of Claim
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36
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SECTION 6.10.
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Priorities
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37
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SECTION 6.11.
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Undertaking for Costs
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37
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SECTION 6.12.
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Waiver of Stay or Extension Laws
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37
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SECTION 6.13.
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Sole Remedy for Failure to Report
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37
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ARTICLE 7
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Trustee
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SECTION 7.01.
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Duties of Trustee
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38
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SECTION 7.02.
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Rights of Trustee
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39
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SECTION 7.03.
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Individual Rights of Trustee
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41
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SECTION 7.04.
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Trustee’s Disclaimer
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41
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SECTION 7.05.
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Notice of Defaults
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41
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SECTION 7.06.
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[Reserved]
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41
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SECTION 7.07.
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Compensation and Indemnity
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41
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SECTION 7.08.
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Replacement of Trustee
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43
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SECTION 7.09.
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Successor Trustee by Merger
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43
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SECTION 7.10.
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Eligibility; Disqualification
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44
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SECTION 7.11.
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Trustee’s Application for Instructions from the Company
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44
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SECTION 7.12.
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Trustee in Other Capacities; Registrar and Paying Agent
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44
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ARTICLE 8
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Discharge of Indenture; Defeasance
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SECTION 8.01.
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Discharge of Liability on Notes; Defeasance
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44
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SECTION 8.02.
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Conditions to Defeasance
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45
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SECTION 8.03.
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Application of Trust Money
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46
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SECTION 8.04.
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Repayment to Company
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47
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SECTION 8.05.
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Indemnity for Government Obligations
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47
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SECTION 8.06.
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Reinstatement
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47
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ARTICLE 9
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Amendments
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SECTION 9.01.
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Without Consent of Holders
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47
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SECTION 9.02.
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With Consent of Holders
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48
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SECTION 9.03.
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Revocation and Effect of Consents and Waivers
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49
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SECTION 9.04.
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Notation on or Exchange of Notes
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49
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SECTION 9.05.
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Trustee To Sign Amendments
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50
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SECTION 9.06.
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Payment for Consent
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50
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ARTICLE 10
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Guarantee
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SECTION 10.01.
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Guarantee
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50
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SECTION 10.02.
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Limitation on Guarantor Liability
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51
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SECTION 10.03.
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Delivery of Note Guarantee
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51
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SECTION 10.04.
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Guarantors May Consolidate, etc., on Certain Terms
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52
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SECTION 10.05.
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Releases
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52
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SECTION 10.06.
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Addition of Guarantors.
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53
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ARTICLE 11
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Miscellaneous
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SECTION 11.01.
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Notices
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53
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SECTION 11.02.
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Communication by Holders with Other Holders
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54
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SECTION 11.03.
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Certificate and Opinion as to Conditions Precedent
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54
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SECTION 11.04.
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Statements Required in Certificate or Opinion
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54
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SECTION 11.05.
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When Notes Disregarded
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55
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SECTION 11.06.
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Rules by Trustee, Paying Agent and Registrar
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55
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SECTION 11.07.
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Legal Holidays
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55
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SECTION 11.08.
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Governing Law, Submission to Jurisdiction
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55
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SECTION 11.09.
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No Recourse Against Others
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56
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SECTION 11.10.
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Successors
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56
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SECTION 11.11.
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Multiple Originals
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56
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SECTION 11.12.
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Table of Contents; Headings
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56
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SECTION 11.13.
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Waiver of Jury Trial
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56
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SECTION 11.14.
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Force Majeure
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56
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Rule 144A/Regulation S/IAI Appendix
Exhibit 1 to Appendix – Form of Note
Exhibit 2 to Appendix – Form of Transferee Letter of Representation
Exhibit 1 – Form of Supplemental Indenture (to be delivered by subsequent Guarantors)
INDENTURE
dated as of
June 23, 2014
among Compass Minerals International, Inc.
, a
Delaware
corporation (the “
Company
”), the
Guarantors
(as defined) and
U.S. Bank National Association
, as trustee (the “
Trustee
”).
Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the
Holders
of
4.875
% Senior
Notes
due 2024
(the “
Notes
”):
Definitions and Incorporation by Reference
SECTION 1.01.
Definitions
.
“
Additional Notes
” means
Notes
under this
Indenture
after the
Issue Date
and in compliance with Section
2.13
, it being understood that any
Notes
issued in exchange for
or
replacement of any
Note
issued on the
Issue Date
shall not be an Additional Note.
“
Affiliate
” of any specified
Person
means any other
Person
, directly
or
indirectly, controlling
or
controlled by
or
under direct
or
indirect common
control
with such specified
Person
. For the purposes of this definition, “
control
” when used with respect to any
Person
means the power to direct the management and policies of such
Person
, directly
or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“
Attributable Debt
” in respect of a
Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest
rate borne by the
Notes
, compounded annually) of the total
obligations
of the lessee for rental payments during the remaining term of the lease included in such
Sale/Leaseback Transaction
(
including
any period for which such lease has been extended);
provided, however
, that if such
Sale/Leaseback Transaction
results in a
Capital Lease Obligation
, the amount of
Indebtedness
represented thereby will be determined in accordance with the definition of “
Capital Lease Obligation
.”
“
Board of Directors
” means the
Board of Directors
of the
Company
or
any committee thereof duly authorized to act on behalf of such Board.
“
Business Day
” means each day which is not a
Legal Holiday
. Any notice
or
payment due on any day that is not a
Business Day
need not be made on such day, but may be made on the next succeeding
Business Day
with the same force and effect as if made on such day.
“
Capital Lease Obligation
” means an obligation that is required to be classified and accounted for as a capital lease for financial reporting purposes in accordance with
GAAP
, and the amount of
Indebtedness
represented by such obligation shall be the capitalized amount of such obligation determined in accordance with
GAAP
; and the
Stated Maturity
thereof shall be the date of the last payment of rent
or
any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty. For purposes of Section 4.04, a
Capital Lease Obligation
will be deemed to be secured by a
Lien
on the property being leased.
“
Capital Stock
” of any Person means any and all shares, interests (
including
partnership interests), rights to purchase, warrants, options, participations
or
other equivalents of
or
interests in (however designated) equity of such
Person
,
including
any
Preferred Stock
, but excluding any debt securities convertible into such equity.
“
Change of Control
” means the occurrence of any of the following:
(1)
any “
person
” (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act
) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act
, except that for purposes of this clause
(1)
such
person
shall be deemed to have “beneficial ownership” of all shares that any such
person
has the right to acquire, whether such right is exercisable immediately
or
only after the passage of time), directly
or
indirectly, of more than 50% of the total voting power of the
Voting Stock
of the
Company,
other than by the imposition of one or more holding companies, the beneficial owners of whose Voting Stock would not have caused a Change of Control if such beneficial owners had directly held the Voting Stock of the Company held by such holding company or companies;
(2)
the adoption of a plan relating to the liquidation
or
dissolution of the
Company
;
(3)
the direct
or
indirect sale, transfer, conveyance
or
other
disposition
(other than by way of merger
or
consolidation), in one
or
a series of related transactions, of all
or
substantially all of the properties
or
assets of the
Company
and its
Subsidiaries
taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the
Exchange Act
) other than the Company or a
Subsidiary
; or
(4)
the Company consolidates with or merges with or into any Person, or sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of its assets to 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 is converted into or exchanged for cash, securities or other property, other than any such transaction where the Voting Stock of the Company outstanding immediately prior to such transaction is converted into or exchanged for Voting Stock of the surviving or transferee Person constituting a majority of the outstanding shares of such Voting Stock of such surviving or transferee Person (immediately after giving effect to such issuance).
“
Change of Control Triggering Event
” means the occurrence of both a
Change of Control
and a
Ratings Event
.
“
Code
” means the
Internal Revenue Code of 1986
, as amended.
“
Company
” means the party named as such in this
Indenture
until a successor replaces it and, thereafter, means the successor.
“
Consolidated Income Tax Expense
” means, with respect to the
Company
for any period, the provision for federal, state, local and foreign taxes based on income
or
profits (
including
franchise taxes) payable by the
Company
and its
Subsidiaries
for such period as determined on a consolidated basis in accordance with
GAAP
.
“
Consolidated Interest Expense
” means, for any period, the total
interest
expense of the
Company
and its
Subsidiaries
for such period, whether paid
or
accrued and whether
or
not capitalized (
including
amortization of debt issuance costs and original issue discount), non-cash
interest
payments, the
interest
component of any deferred payment
Obligations
, the
interest
component of all payments associated with
Capital Lease Obligations
and
Attributable Debt
, commissions, discounts and other fees and charges Incurred in respect of letter of credit
or
bankers’ acceptance financings, and net of the effect of all payments made
or
received pursuant to
Hedging Obligations
.
“
Consolidated Net Income
” means, for any period, the net income of the
Company
and its consolidated
Subsidiaries
;
provided, however
, that there shall not be included in such
Consolidated Net Income
:
(1)
any net income of any
Person
(other than the
Company
) if such
Person
is not a
Subsidiary
, except that:
(A)
subject to the exclusion contained in clauses
(3)
,
(4)
and
(5)
below, the
Company
’s equity in the net income of any such
Person
for such period shall be included in such
Consolidated Net Income
up to the aggregate amount of cash actually distributed by such
Person
during such period to the
Company
or
a
Subsidiary
as a dividend
or
other distribution (subject, in the case of a dividend
or
other distribution paid to a
Subsidiary
, to the limitations contained in clause
(2)
below); and
(B)
the
Company
’s equity in a net loss of any such
Person
for such period shall be included in determining such
Consolidated Net Income
to the extent such loss has been funded with cash from the
Company
or
a
Subsidiary
;
(2)
any net income of any
Subsidiary
if such
Subsidiary
is subject to restrictions, directly
or
indirectly, on the payment of dividends
or
the making of distributions by such
Subsidiary
, directly
or
indirectly, to the
Company
, except that:
(A)
subject to the exclusion contained in clauses
(3)
,
(4)
and
(5)
below, the
Company
’s equity in the net income of any such
Subsidiary
for such period shall be included in such
Consolidated Net Income
up to the aggregate amount of cash that could have been distributed by such
Subsidiary
during such period to the
Company
or
another
Subsidiary
as a dividend
or
other distribution (subject, in the case of a dividend
or
other distribution paid to another
Subsidiary
, to the limitation contained in this clause); and
(B)
the
Company
’s equity in a net loss of any such
Subsidiary
for such period shall be included in determining such
Consolidated Net Income
;
(3)
any gain (
or
loss) realized upon the sale
or
other
disposition
of any assets of the
Company
or
its consolidated
Subsidiaries
(
including
pursuant to any
Sale/Leaseback Transaction
) which is not sold
or
otherwise disposed of in the ordinary course of business and any gain (
or
loss) realized upon the sale
or
other
disposition
of any
Capital Stock
of any
Person
;
(4)
extraordinary, unusual or non-recurring gains or losses;
(5)
net charges associated with or related to any restructurings;
(6)
all financial advisory fees, accounting fees, legal fees and similar advisory and consulting fees and related costs and expenses of the Company and its Subsidiaries incurred as a result of asset acquisitions, investments, asset sales and the issuance of Capital Stock or Indebtedness, all determined in accordance with GAAP and in each case eliminating any increase or decrease in income resulting from non-cash accounting adjustments made in connection with the related asset acquisition, investment or asset sale;
(7)
losses and expenses with respect to liability or casualty events shall be excluded to the extent covered by insurance or indemnification and actually reimbursed or so long as the Company has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer or indemnifying party and only to the extent such amount is (a) not denied by the applicable carrier or indemnifying party in writing within 180 days and (b) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days); and
(8)
the cumulative effect of a change in accounting principles, in each case, for such period.
“
Consolidated Net Tangible Assets
” means the total amount of the Company’s assets (less applicable reserves and other properly deductible items) after deducting (i) all current liabilities (excluding liabilities that are extendable or renewable at the option of the obligor to a date more than 12 months after the date as of which the amount is being determined, and excluding short term debt and the current portion of long term debt) and (ii) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangible assets, all as set forth on the Company’s most recent consolidated balance sheet and determined on a consolidated basis in accordance with generally accepted accounting principles. Notwithstanding the foregoing, for purposes of calculating Consolidated Net Tangible Assets, acquisitions, dispositions, mergers, consolidations and disposed operations (as determined in accordance with GAAP that have been made by the Company or any of its Subsidiaries subsequent to the date of the most recent consolidated balance sheet of the Company and on or prior to or simultaneously with the applicable date of calculation shall be calculated on a pro forma basis assuming that all such acquisitions, dispositions, mergers, consolidations and disposed operations had occurred on the date of such most recent consolidated balance sheet.
“
Consolidated Operating Cash Flow
” means, with respect to the
Company
and its
Subsidiaries
on a consolidated basis, for any period, an amount equal to
Consolidated Net Income
for such period increased (without duplication) by the sum of:
(1)
Consolidated Income Tax Expense
accrued for such period to the extent deducted in determining
Consolidated Net Income
for such period;
(2)
Consolidated Interest Expense
for such period to the extent deducted in determining
Consolidated Net Income
for such period; and
(3)
depreciation, amortization and any other noncash items for such period to the extent deducted in determining
Consolidated Net Income
for such period (other than any noncash item which requires the accrual of,
or
a reserve for, cash charges for any future period) of the
Company
and the
Subsidiaries
(
including
amortization of capitalized debt issuance costs for such period, any noncash compensation expense realized for grants of stock options
or
other rights to officers, directors, consultants and employees and noncash charges related to equity granted to third parties), all of the foregoing determined on a consolidated basis in accordance with
GAAP
, and decreased by noncash items to the extent they increase
Consolidated Net Income
(
including
the partial
or
entire reversal of reserves taken in prior periods, but excluding reversals of accruals
or
reserves for cash charges taken in prior periods) for such period.
“
Consolidated Secured Indebtedness
” means, with respect to any specified Person as of any date, (a) the total amount of Indebtedness of such Person and its Subsidiaries outstanding as of the date of the most recently available consolidated balance sheet of such Person and its Subsidiaries that is secured by a Lien on the assets or property of such specified Person or upon shares of Capital Stock or Indebtedness of any of its Subsidiaries, as determined on a consolidated basis in accordance with GAAP, plus (b) the total amount of Capital Lease Obligations of such Person and its Subsidiaries as of the most recently available consolidated balance sheet of such Person and its Subsidiaries, as determined on a consolidated basis in accordance with GAAP, plus (c) the total amount of Attributable Debt in respect of Sale/ Leaseback Transactions of such Person and its Subsidiaries as of such date.
“
Consolidated Secured Leverage Ratio
” means, with respect to any specified Person as of any date, the ratio of (a) the Consolidated Secured Indebtedness of such Person as of such date to (b) the Consolidated Operating Cash Flow of such Person for the four most recent full fiscal quarters ending immediately prior to such date for which internal financial statements are available. In the event that the specified Person or any of its Subsidiaries incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise discharges any Indebtedness that is secured by a Lien on the assets or property of such specified Person or upon shares of Capital Stock or Indebtedness of any of its Subsidiaries (other than ordinary working capital borrowings) on or after the date of the most recent available balance sheet of such Person and its Subsidiaries and on or prior to the date on which the event for which the calculation of the Consolidated Secured Leverage Ratio is made (the “
Calculation Date”
), then the Consolidated Secured Leverage Ratio will be calculated giving
pro forma
effect to such incurrence, assumption, Guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, and the use of the proceeds therefrom.
In addition, for purposes of calculating the Consolidated Secured Leverage Ratio:
(1)
acquisitions and dispositions that have been made by the specified Person or any of its Subsidiaries, including through mergers or consolidations, or any Person or any of its Subsidiaries acquired by the specified Person or any of its Subsidiaries, and including any related financing transactions and giving effect to the application of proceeds from any dispositions, during the Reference Period or subsequent to such Reference Period and on or prior to the Calculation Date shall be deemed to have occurred on the first day of the Reference Period; and
(2)
the Consolidated Operating Cash Flow attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses disposed of prior to the Calculation Date, will be excluded,
provided
that to the extent that clause (1) or (2) of this definition requires that
pro forma
effect be given to an acquisition, disposition or discontinued operations, as applicable, such
pro forma
calculation shall be made in good faith by a responsible financial or accounting officer of the Company (and may include, for the avoidance of doubt and without duplication, cost savings, synergies and operating expense resulting from such acquisition whether or not such cost savings, synergies or operating expense reductions would be allowed under Regulation S-X promulgated by the SEC or any other regulation or policy of the SEC).
“
Corporate Trust Office
” means the
principal
office of the
Trustee
at which at any time its corporate trust business shall be administered, which office at the date hereof is located at
One U.S. Bank Plaza, St. Louis, MO 63101,
Attention:
Corporate Trust
Administration,
or
such other address as the
Trustee
may designate from time to time by notice to the
Holders
and the
Company
,
or
the
principal
corporate trust office of any successor
Trustee
(
or
such other address as such successor
Trustee
may designate from time to time by notice to the
Holders
and the
Company
).
“
Debt Facility
” means one
or
more debt facilities
or
commercial paper facilities with banks
or
other institutional lenders providing for revolving credit loans, term loans, receivables financing (
including
through the sale of receivables to such lenders
or
to special purpose entities formed to borrow from such lenders against such receivables)
or
letters of credit
or
issuances of debt securities evidenced by
notes
, debentures, bonds
or
similar instruments, in each case, as amended, restated, modified, renewed, refunded, replaced
or
refinanced (
including
by means of sales of debt securities) in whole
or
in part from time to time (and whether
or
not with the original administrative agent, lenders
or
trustee
or
another administrative agent
or
agents, other lenders
or
trustee
and whether provided under any credit
or
other agreement
or
indenture
).
“
Default
” means any event which is,
or
after notice
or
passage of time
or
both would be, an Event of
Default
.
“
Domestic Subsidiary
” means any Subsidiary of the Company that was formed under the laws of the United States or any state of the United States or the District of Columbia.
“
Exchange Act
” means the
U.S.
Securities Exchange Act of 1934
, as amended.
“
GAAP
” means generally accepted accounting principles in the United States of America as in effect from time to time, including those set forth in the opinions and pronouncements of
the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession;
provided
that leases will be accounted for using the accounting principles in effect on the Issue Date and any change in the accounting for leases after the Issue Date will be disregarded. All ratios and computations based on GAAP contained in this Indenture will be computed in conformity with GAAP. For the avoidance of doubt, all calculations, ratios and computations with respect to leases contained in this Indenture will be computed in conformity with GAAP as in effect as of the Issue Date,
provided
,
further
, that at any time after the Issue Date, the Company may elect, for all purposes of this Indenture, to apply IFRS accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS as in effect on the date of such election;
provided
,
further
, that (1) any such election, once made, shall be irrevocable (and shall only be made once), (2) all financial statements and reports required to be provided after such election pursuant to this Indenture shall be prepared on the basis of IFRS, (3) from and after such election, all ratios, computations and other determinations based on GAAP contained in this Indenture shall be computed in conformity with IFRS with retroactive effect being given thereto assuming that such election had been made on the Issue Date, (4) such election shall not have the effect of rendering invalid any Incurrence of a Lien incurred prior to the date of such election pursuant to Section 4.04 (or any other action conditioned on the Company’s meeting a Consolidated Secured Leverage Ratio) if such Incurrence or other action was valid under this Indenture on the date made, incurred or taken, as the case may be, (5) all accounting terms and references in this Indenture to accounting standards shall be deemed to be references to the most comparable terms or standards under IFRS and (6) in no event, regardless of the principles of IFRS in effect on the date of such election, shall any liabilities attributable to an operating lease be treated as Indebtedness nor shall any expenses attributable to payments made under an operating lease be treated, in whole or in part, as interest expense; provided that such payments under an operating lease shall be treated as an operating expense in computing Consolidated Net Income. The Company shall give notice of any such election made in accordance with this definition to the Trustee and the Holders of Notes promptly after having made such election (and in any event, within 15 days thereof). For the avoidance of doubt, solely making an election (without any other action) referred to in this definition will not be treated as an Incurrence of a Lien.
“
Guarantee
” means any obligation, contingent
or
otherwise, of any
Person
directly
or
indirectly guaranteeing any
Indebtedness
of any
Person
and any obligation, direct
or
indirect, contingent
or
otherwise, of such
Person
:
(1)
to purchase
or
pay (
or
advance
or
supply funds for the purchase
or
payment of) such
Indebtedness
of such
Person
(whether arising by virtue of partnership arrangements,
or
by agreements to keep-well, to purchase assets, goods, securities
or
services, to take-
or
-pay
or
to maintain financial statement conditions
or
otherwise);
or
(2)
entered into for the purpose of assuring in any other manner the obligee of such
Indebtedness
of the payment thereof
or
to protect such obligee against loss in respect thereof (in whole
or
in part);
provided, however
, that the term “
Guarantee
” shall not include endorsements for collection
or
deposit in the ordinary course of business. The term “
Guarantee
” used as a verb has a corresponding meaning.
“
Guarantor
”
means each
Subsidiary
Guarantor
.
“
Hedging Obligations
” of any Person means the
obligations
of such
Person
under:
(1)
currency exchange
or
interest
rate swap agreements, currency exchange
or
interest
rate cap agreements
or
currency exchange
or
interest
rate collar agreements;
or
(2)
other agreements
or
arrangements designed to protect such
Person
against fluctuations in currency exchange
or
interest
rate prices.
“
Holder
”
or
“
Noteholder
”
means the
Person
in whose name a
Note
is registered on the
Registrar
’s books.
“
Incur
” means issue, assume,
Guarantee
, incur
or
otherwise become liable for;
provided, however
, that any
Indebtedness
of a
Person
existing at the time such
Person
becomes a
Subsidiary
(whether by merger, consolidation, acquisition
or
otherwise) shall be deemed to be Incurred by such
Person
at the time it becomes a
Subsidiary
. The term “Incurrence” when used as a noun shall have a correlative meaning. Solely for purposes of determining compliance with Section 4.04:
(1)
amortization of debt discount
or
the accretion of
principal
with respect to a non-
interest
bearing
or
other discount security;
(2)
the payment of regularly scheduled
interest
in the form of additional
Indebtedness
of the same instrument
or
the payment of regularly scheduled dividends on
Capital Stock
in the form of additional
Capital Stock
of the same class and with the same terms; and
(3)
the obligation to pay a premium in respect of
Indebtedness
arising in connection with the issuance of a notice of redemption
or
making of a mandatory
offer
to purchase such
Indebtedness,
will not be deemed to be the Incurrence of
Indebtedness
or a Lien
.
“
Indebtedness
” means, with respect to any
Person
on any date of determination
, the
principal
in respect of (A)
indebtedness
of such
Person
for money borrowed and (B)
indebtedness
evidenced by
notes
, debentures, bonds
or
other similar instruments for the payment of which such
Person
is responsible
or
liable,
including
, in each case, any premium on such
indebtedness
to the extent such premium has become due and payable.
Notwithstanding the foregoing, in connection with the purchase by the
Company
or
any
Subsidiary
of any business, the term “
Indebtedness
” will exclude post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet
or
such payment depends on the performance of such business after
the closing;
provided, however
, that, at the time of closing, the amount of any such payment is not determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is paid within 30
days
thereafter.
The amount of
Indebtedness
of any
Person
at any date shall be the outstanding balance at such date of all
obligations
as described above;
provided, however
, that in the case of
Indebtedness
sold at a discount, the amount of such
Indebtedness
at any time will be the accreted value thereof at such time.
“
Indenture
” means this
Indenture
, as amended
or
supplemented from time to time.
“
interest
” means any
interest
payable on the
Notes
including
Reporting Additional Interest
.
“
Investment Grade Rating
” means a rating equal to
or
higher than
(i)
in the case of
Moody’s
, Baa3 (
or
the equivalent),
(ii)
in the case of
Standard & Poor’s
, BBB- (
or
the equivalent) and (iii) in the case of any other
Rating Agency
, the equivalent rating by such
Rating Agency
to the ratings described in clauses
(i)
and
(ii)
.
“
Issue Date
” means June 23, 2014.
“
Legal Holiday
” means a
Saturday
, a
Sunday
or
a day on which banking institutions
or
trust institutions are not required to be open in the
State of New York
.
“
Lien
” means any mortgage, pledge, security
interest
, encumbrance, lien
or
charge of any kind (
including
any conditional sale
or
other title retention agreement
or
lease in the nature thereof).
“
Moody’s
” means
Moody’s Investors Service, Inc.
and any successor to its
rating agency
business.
“
Note Guarantees
” means the
Guarantees
of the
Subsidiary Guarantors
pursuant to the terms of this
Indenture
, and “
Note Guarantee
” means any of them.
“
Obligations
” means, with respect to any
Indebtedness
, all obligations for
principal
, premium,
interest
, penalties, fees, indemnifications, reimbursements and other amounts payable pursuant to the documentation governing such
Indebtedness
.
“
Offering Memorandum
” means the offering memorandum of the
Company
dated June 12, 2014 pursuant to which the
Notes
were offered to the
Holders
.
“
Officer
” means the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer, the Controller, the Treasurer
or
the
Secretary
of the
Company
.
“
Officer’s Certificate
” means a certificate signed by one
Officer
.
“
Opinion of Counsel
” means a written opinion from legal counsel who is acceptable to the
Trustee
. The counsel may be an employee of
or
counsel to the
Company
.
“
Permitted Liens
” means, with respect to any
Person
:
(1)
pledges
or
deposits by such
Person
under worker’s compensation laws, unemployment insurance laws
or
similar legislation,
or
good faith deposits in connection with bids, tenders, contracts (other than for the payment of
Indebtedness
)
or
leases to which such
Person
is a party,
or
deposits to secure public
or
statutory
obligations
of such
Person
or
deposits of cash
or
United States
government bonds to secure surety
or
appeal bonds to which such
Person
is a party,
or
deposits as security for contested taxes
or
import duties
or
for the payment of rent, in each case Incurred in the ordinary course of business;
(2)
Liens
imposed by law, such as carriers’, warehousemen’s and mechanics’
Liens
, in each case for sums not yet due
or
being contested in good faith by appropriate proceedings
or
other
Liens
arising out of judgments
or
awards against such
Person
with respect to which such
Person
shall then be proceeding with an appeal
or
other proceedings for review and
Liens
arising solely by virtue of any statutory
or
common law provision relating to banker’s
Liens
, rights of set-off
or
similar rights and remedies as to deposit accounts
or
other funds maintained with a creditor depository institution;
provided, however
, that (A) such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the
Company
in excess of those set forth by regulations promulgated by the Federal Reserve Board and (B) such deposit account is not intended by the
Company
or
any
Subsidiary
to provide collateral to the depository institution;
(3)
Liens
for taxes, assessments
or
other governmental charges not yet subject to penalties for non-payment
or
which are being contested in good faith by appropriate proceedings;
(4)
Liens
in favor of issuers of surety bonds
or
letters of credit issued pursuant to the request of and for the account of such
Person
in the ordinary course of its business;
provided, however
, that such letters of credit do not constitute
Indebtedness
;
(5)
survey exceptions, encumbrances, easements
or
reservations of,
or
rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes,
or
zoning
or
other restrictions as to the use of real property
or
Liens
incidental to the conduct of the business of such
Person
or
to the ownership of its properties which were not Incurred in connection with
Indebtedness
and which do not in the aggregate materially adversely affect the value of said properties
or
materially impair their use in the operation of the business of such
Person
;
(6)
Liens
securing
Indebtedness
Incurred to finance the construction, purchase
or
lease of,
or
repairs, improvements
or
additions to, property, plant
or
equipment of such
Person
;
provided, however
, that the
Lien
may not extend to any other property owned by such
Person
or
any of its
Subsidiaries
at the time the
Lien
is Incurred (other than assets and property affixed
or
appurtenant thereto), and the
Indebtedness
(other than any
interest
thereon) secured by the
Lien
may not be Incurred more than 270
days
after the later of
the acquisition, completion of construction, repair, improvement, addition
or
commencement of full operation of the property subject to the
Lien
;
(7)
Liens
on property of the
Company
or
its
Subsidiaries
existing on the
Issue Date
;
(8)
Liens
on property
or
shares of
Capital Stock
of another
Person
at the time such other
Person
becomes a
Subsidiary
of such
Person
;
provided,
however
,
that the
Liens
may not extend to any other property owned by such
Person
or
any of its
Subsidiaries
(other than assets and property affixed
or
appurtenant thereto);
(9)
Liens
on property at the time such
Person
or
any of its
Subsidiaries
acquires the property,
including
any acquisition by means of a merger
or
consolidation with
or
into such
Person
or
a
Subsidiary
of such
Person
;
provided
that such Liens were in existence prior to the contemplation of such merger or consolidation;
provided,
however
,
that the
Liens
may not extend to any other property owned by such
Person
or
any of its
Subsidiaries
(other than assets and property affixed
or
appurtenant thereto);
(10)
Liens
securing
Indebtedness
or
other
obligations
of a
Subsidiary
of such
Person
owing to such
Person
or
a
Wholly Owned Subsidiary
of such
Person
;
(11)
Liens
securing
Hedging Obligations
so long as such
Hedging Obligations
are permitted to be Incurred under this
Indenture
;
(12)
leases, licenses, subleases and sublicenses of assets (
including
, without limitation, real property and intellectual property rights) which do not materially interfere with the ordinary conduct of the business of the
Company
or
any of its
Subsidiaries
;
(13)
Liens
arising from
Uniform Commercial Code
financing statement filing regarding operating leases entered into by the
Company
and its
Subsidiaries
in the ordinary course of business;
(14)
Liens
in connection with advances, deposits, escrows and similar arrangements in the ordinary course of business;
(15)
Liens
to secure any Refinancing (
or
successive Refinancings) as a whole,
or
in part, of any
Indebtedness
secured by any
Lien
referred to in clauses
(6)
,
(7)
,
(8),
(9)
, (17) and (18)
;
provided, however
, that in the case of
Liens
to secure any Refinancing (
or
successive Refinancings) as a whole,
or
in part, of any
Indebtedness
secured by any
Lien
referred to in clauses
(6)
,
(7)
,
(8),
(9)
, (17) and (18)
:
(A)
such new
Lien
shall be limited to all
or
part of the same property and assets that secured
or
, under the written agreements pursuant to which the original
Lien
arose, could secure the original
Lien
(plus improvements and accessions to, such property
or
proceeds
or
distributions thereof); and
(B)
the
Indebtedness
secured by such
Lien
at such time is not increased to any amount greater than the sum of (i) the outstanding
principal
amount
or
, if
greater, committed amount of the
Indebtedness
described under clause
(6)
,
(7)
,
(8)
or
(9) and (18)
at the time the original
Lien
became a
Permitted Lien
and (ii) an amount necessary to pay any fees and expenses,
including
premiums, related to such refinancing, refunding, extension, renewal
or
replacement;
(16)
any
interest
or
title of a lessor under any
Capital Lease Obligation
;
(17)
Liens to secure Purchase Money Indebtedness, Attributable Debt and Capital Lease Obligations and Refinancing Indebtedness thereof, so long as (A) the principal amount thereof does not exceed the principal amount of the Indebtedness
being Refinanced plus accrued and unpaid interest thereon together with any reasonable fees, premiums (including tender premiums) and expenses relating to such Refinancing and (B) such Refinancing Indebtedness is Incurred by the same Person(s) as the Indebtedness being Refinanced; and
(18)
any other Lien not excepted by clauses (1) through (17) above, so long as, after giving effect thereto, the amount of Consolidated Secured Indebtedness does not exceed the greater of (a) $550.0 million and (b) an amount equal to the sum of (i) the amount that would cause the Consolidated Secured Leverage Ratio to exceed 2.75 to 1.00 for the relevant Reference Period at any one time outstanding, in each case, measured as of the date of Incurrence of such other Lien and (ii) $125.0 million.
For purposes of this definition, the term “
Indebtedness
” shall be deemed to include
interest
on such
Indebtedness
.
Further, for purposes of this definition, (i) in determining compliance with any U.S. dollar-denominated restriction on the securing of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based upon the relevant currency exchange rate in effect on the date such Indebtedness was Incurred;
provided
,
however
, that if such Indebtedness is Incurred to Refinance other Indebtedness denominated in a foreign currency, and such Refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such Refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed the amount necessary to Refinance the principal amount of such Indebtedness being Refinanced and (ii) the maximum amount of Indebtedness that the Company or any Subsidiary may secure shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies.
“
Person
” means any individual, corporation, partnership, limited liability
company
, joint venture, association, joint-stock
company
, trust, unincorporated organization, government
or
any agency
or
political subdivision thereof
or
any other entity.
“
Preferred Stock
”, as applied to the
Capital Stock
of any
Person
, means
Capital Stock
of any class
or
classes (however designated) which is preferred as to the payment of dividends
or
distributions,
or
as to the distribution of assets upon any voluntary
or
involuntary liquidation
or
dissolution of such
Person
, over shares of
Capital Stock
of any other class of such
Person
.
“
principal
” of a
Note
means the
principal
of the
Note
plus the premium, if any, payable on the
Note
which is due
or
overdue
or
is to become due at the relevant time.
“
Principal Property
” means as of any date, any building structure or other facility together with the underlying land and its fixtures, used primarily for manufacturing, processing, extraction, warehousing, distribution or production and owned or leased or to be owned or leased by the Company or any Subsidiary, and in each case the net book value of which as of such date exceeds 2.0% of Consolidated Net Tangible Assets, measured as of the end of the most recent quarter for which financial statements are available, other than any such land, building, structure or other facility or portion thereof which, in the opinion of the Board of Directors, is not of material importance to the business conducted by the Company and its subsidiaries, considered as one enterprise.
“
Purchase Money Indebtedness
” means
Indebtedness
:
(1)
consisting of the deferred purchase price of an asset, conditional sale
obligations
,
obligations
under any title retention agreement and other purchase money
obligations
, in each case where the maturity of such
Indebtedness
does not exceed the anticipated useful life of the asset being financed, and
(2)
Incurred to finance the acquisition by the
Company
or
a
Subsidiary
of such asset,
including
additions and improvements;
provided, however
, that such
Indebtedness
is Incurred within 180
days
after the acquisition by the
Company
or
such
Subsidiary
of such asset.
“
Rating Agency
” means (1) each of Moody’s and
Standard & Poor’s
; and (2) if any of Moody’s or
Standard & Poor’s
ceases to rate the
Notes
or
fails to make a rating of the
Notes
publicly available for reasons outside the
control
of the
Company
, a “nationally recognized statistical rating organization,” as that term is used in Section 15E under the
Exchange Act
, selected by the
Company
as a
replacement agency for Moody’s or
Standard & Poor’s
or any one or more of the foregoing, as the case may be
.
“
Ratings Decline Period
” means the period that (i) begins on the earlier of (a) the date of the first public announcement of the occurrence of a
Change of Control
and (b) the occurrence of a
Change of Control
and (ii) ends 60
days
following consummation of such
Change of Control
;
provided
that such period shall be extended for so long as the rating of the
Notes
, as noted by the applicable
Rating Agency
, is under publicly announced consideration for downgrade by the applicable
Rating Agency
.
“
Ratings Event
” means (i) a downgrade by one
or
more gradations (
including
gradations within ratings categories as well as between rating categories)
or
withdrawal of the rating of the
Notes
within the
Ratings Decline Period
by one
or
more
Rating Agencies
(unless the applicable
Rating Agency
shall have put forth a written statement to the effect that such downgrade or withdrawal is not attributable in whole
or
in part to the applicable
Change of Control
) and (ii) the
Notes
do not have an
Investment
Grade Rating
from any Rating Agency.
“
Reference Period
” as of any date of determination means the most recent four consecutive fiscal quarters ending prior to such date of determination for which financial information is available.
“
Refinance
” means, in respect of any
Indebtedness
, to refinance, extend, renew, refund, repay, prepay, purchase, redeem, defease
or
retire,
or
to issue other
Indebtedness
in exchange
or
replacement for, such
Indebtedness
. “Refinanced” and “Refinancing” shall have correlative meanings.
“
Responsible Officer
” means, when used with respect to the
Trustee
, any
officer
within the corporate trust department of the
Trustee
,
including
any vice president, assistant vice president, assistant secretary, assistant treasurer, trust
officer
or
any other
officer
of the
Trustee
who customarily performs functions similar to those performed by the
Persons
who at the time shall be such officers, respectively,
or
to whom any corporate trust matter is referred because of such
person
’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this
Indenture
.
“
Restricted Subsidiary
” means any Domestic Subsidiary (other than any receivables securitization entity).
“
Sale/Leaseback Transaction
” means an arrangement relating to Principal Property owned by the
Company
or
a
Subsidiary
on the
Issue Date
or
thereafter acquired by the
Company
or
a
Subsidiary
whereby the
Company
or
a
Subsidiary
transfers such Principal Property to a
Person
and the
Company
or
a
Subsidiary
leases it from such
Person
.
“
SEC
” means the
U.S. Securities and Exchange Commission
.
“
Secured Indebtedness
” means any
Indebtedness
of the
Company
or
a
Subsidiary
secured by a
Lien
.
“
Securities Act
” means the
U.S. Securities Act of 1933
, as amended.
“
Senior Indebtedness
” means with respect to any
Person
:
(1)
Indebtedness
of such
Person
, whether outstanding on the
Issue Date
or
thereafter Incurred; and
(2)
all other
Obligations
of such
Person
(
including
interest
accruing on
or
after the filing of any petition in bankruptcy
or
for reorganization relating to such
Person
whether
or
not post-filing
interest
is allowed in such proceeding) in respect of
Indebtedness
described in clause
(1)
above;
unless, in the case of clauses
(1)
and
(2)
, in the instrument creating
or
evidencing the same
or
pursuant to which the same is outstanding, it is provided that such
Indebtedness
or
other
obligations
are subordinate in right of payment to the
Notes
;
provided, however
, that
Senior Indebtedness
shall not include:
|
(a)
|
any obligation of such
Person
to the
Company
or
any
Subsidiary
;
|
|
(b)
|
any liability for Federal, state, local
or
other taxes owed
or
owing by such
Person
;
|
|
(c)
|
any accounts payable
or
other liability to trade creditors arising in the ordinary course of business;
|
|
(d)
|
any
Indebtedness
or
other
Obligation
of such
Person
which is subordinate
or
junior in any respect to any other
Indebtedness
or
other
Obligation
of such
Person
;
|
|
(e)
|
that portion of any
Indebtedness
which at the time of Incurrence is Incurred in violation of this
Indenture
;
or
|
“
Significant Subsidiary
” means any
Subsidiary
that would be a “
Significant Subsidiary
” of the
Company
within the meaning of
Rule 1-02
under Regulation S-X promulgated by the
SEC
.
“
Standard & Poor’s
” means Standard & Poor’s, a
Standard & Poor’s Financial Services LLC
business, and any successor to its
rating agency
business.
“
Stated Maturity
” means, with respect to any security, the date specified in such security as the fixed date on which the final payment of
principal
of such security is due and payable,
including
pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option of the
holder
thereof upon the happening of any contingency unless such contingency has occurred).
“
Subsidiary
” means, with respect to any
Person
, any corporation, association, partnership
or
other business entity of which more than 50% of the total voting power of shares of
Voting Stock
is at the time owned
or
controlled, directly
or
indirectly, by:
(2)
such
Person
and one
or
more
Subsidiaries
of such
Person
;
or
(3)
one
or
more
Subsidiaries
of such
Person
.
“
Subsidiary Guarantee
” means, individually, any
Guarantee
of payment of the
Notes
by a
Subsidiary
Guarantor
pursuant to the terms of this
Indenture
and any supplemental
indenture
thereto, and, collectively, all such
Guarantees
. Each such
Subsidiary Guarantee
will be in the form prescribed by this
Indenture
.
“
Subsidiary Guarantor
” means the
Subsidiaries
of the
Company
who are party to this
Indenture
on the
Issue Date
and any other
Subsidiary
of the
Company
that later becomes a
Subsidiary
Guarantor
in accordance with this
Indenture
.
“
Trustee
” means
U.S. Bank National Association
until a successor replaces it and, thereafter, means the successor.
“
Uniform Commercial Code
” means the
New York Uniform Commercial Code
as in effect from time to time.
“
U.S. Government Obligations
” means direct
obligations
(
or
certificates representing an ownership
interest
in such
obligations
) of the United States of America (
including
any agency
or
instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable at the issuer’s option.
“
Voting Stock
” of a Person means all classes of
Capital Stock
of such
Person
then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers
or
trustees thereof.
“
Wholly Owned Subsidiary
” means a
Subsidiary
all the
Capital Stock
of which (other than directors’ qualifying shares) is owned by the
Company
or
one
or
more other
Wholly Owned Subsidiaries
.
SECTION 1.02.
Other Definitions
.
Term
|
Defined In Section
|
|
|
“Appendix”
|
2.01
|
“Authenticating Agent”
|
2.02
|
“Bankruptcy Code”
|
6.01
|
“Change of Control Offer”
|
4.03(b)
|
“Comparable Treasury Issue”
|
3.06(b)
|
“Comparable Treasury Price”
|
3.06(b)
|
“covenant defeasance option”
|
8.01(b)
|
“Custodian”
|
6.01
|
“Definitive Note”
|
Appendix
|
“DTC”
|
2.06(c)
|
“Event of Default”
|
6.01
|
“Excluded Subsidiary”
|
4.06
|
“Global Note”
|
Appendix
|
“Indemnified Party”
|
7.07
|
“Independent Investment Banker”
|
3.06(b)
|
“Initial Lien”
|
4.04
|
“legal defeasance option”
|
8.01(b)
|
“Make Whole Redemption Price”
|
3.06(b)
|
“Notice of Default”
|
6.01
|
“Paying Agent”
|
2.03(a)
|
“Primary Treasury Dealer”
|
3.06(b)
|
“Protected Purchaser”
|
2.07
|
“Reference Treasury Dealer”
|
3.06(b)
|
“Reference Treasury Dealer Quotations”
|
3.06(b)
|
“Registrar”
|
2.03(a)
|
“Reporting Additional Interest”
|
6.13
|
“Successor Company”
|
5.01(1)
|
“Treasury Rate”
|
3.06(b)
|
SECTION 1.03.
Rules of Construction
. Unless the context otherwise requires:
(1)
a term has the meaning assigned to it;
(2)
an accounting term not otherwise defined has the meaning assigned to it in accordance with
GAAP
;
(3)
“
or
” is not exclusive;
(4)
“
including
” means
including
without limitation;
(5)
words in the singular include the plural and words in the plural include the singular;
(6)
unsecured
Indebtedness
shall not be deemed to be subordinate
or
junior to secured
Indebtedness
merely by virtue of its nature as unsecured
Indebtedness
;
(7)
Secured
Indebtedness
shall not be deemed to be subordinate
or
junior to any other Secured
Indebtedness
merely because it has a junior priority with respect to the same collateral;
(8)
the
principal
amount of any noninterest bearing
or
other discount security at any date shall be the
principal
amount thereof that would be shown on a balance sheet of the issuer dated such date prepared in accordance with
GAAP
;
(9)
the
principal
amount of any
Preferred Stock
shall be (A) the liquidation preference of such
Preferred Stock
or
(B) the maximum mandatory redemption
or
mandatory repurchase price (not
including
any redemption
or
repurchase premium) with respect to such
Preferred Stock
, whichever is greater;
(10)
all references to the date the
Notes
were originally issued shall refer to the
Issue Date
; and
(11)
all use of the term “
days
” shall refer to calendar
days
unless otherwise specified.
ARTICLE 2
SECTION 2.01.
Form and Dating
.
Provisions relating to the
Notes
are set forth in the Rule 144A/Regulation S/IAI Appendix attached hereto (the “
Appendix
”) which is hereby incorporated in, and expressly made part of, this
Indenture
. The
Notes
and the
Trustee
’s certificate of authentication shall be substantially in the form of Exhibit 1 to the
Appendix
which is hereby incorporated in, and expressly made a part of, this
Indenture
. The
Notes
may have notations, legends
or
endorsements required by law, stock exchange rule, agreements to which the
Company
is subject, if any,
or
usage (
provided
that any such notation, legend
or
endorsement is in a form acceptable to the
Company
). Each
Note
shall be dated the date of its authentication. The terms of the
Notes
set forth in the
Appendix
are part of the terms of this
Indenture
.
SECTION 2.02.
Execution and Authentication
.
One
Officer
shall sign the
Notes
for the
Company
by manual
or
facsimile signature.
If an
Officer
whose signature is on a
Note
no longer holds that office at the time the
Trustee
authenticates the
Note
, the
Note
shall be valid nevertheless.
A
Note
shall not be valid until an authorized signatory of the
Trustee
manually signs the certificate of authentication on the
Note
. The signature shall be conclusive evidence that the
Note
has been authenticated under this
Indenture
.
On the
Issue Date
, the
Trustee
shall authenticate and deliver $250,000,000 aggregate
principal
amount of the
Notes
and, at any time and from time to time thereafter, the
Trustee
shall authenticate and deliver
Notes
for original issue in an aggregate
principal
amount specified in such order, in each case upon a written order of the
Company
signed by one
Officer
of the
Company
. Such order shall specify the amount of the
Notes
to be authenticated and the date on which the original issue of
Notes
is to be authenticated
.
The
Trustee
may appoint an authenticating agent (the “
Authenticating Agent
”) reasonably acceptable to the
Company
to authenticate the
Notes
. Any such appointment shall be evidenced by an instrument signed by a
Responsible Officer
, a copy of which shall be furnished to the
Company
. Unless limited by the terms of such appointment, the 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. The Authenticating Agent has the same rights as any
Registrar
,
Paying Agent
or
agent for service of notices and demands.
The Trustee and the Authenticating Agent shall have the right to decline to authenticate and deliver any Notes under this Section 2.02 if the Trustee in good faith determines that such action may not lawfully be taken or if the Trustee in good faith determines that such action would expose the Trustee or the Authenticating Agent to personal liability, unless indemnity or security satisfactory to the Trustee or the Authenticating Agent, as applicable, against such liability is provided to the Trustee or the Authenticating Agent, as applicable.
SECTION 2.03.
Registrar
and
Paying Agent
.
(a)
The
Company
shall maintain an office
or
agency where
Notes
may be presented for registration of transfer
or
for exchange (the “
Registrar
”) and an office
or
agency where
Notes
may be presented for payment (the “
Paying Agent
”). The
Registrar
shall keep a register of the
Notes
and of their transfer and exchange. The
Company
may have one
or
more co-registrars and one
or
more additional paying agents. The term “
Registrar
” includes any co-registrars. The term “
Paying Agent
” includes any additional
paying agent
.
(b)
The
Company
shall enter into an appropriate agency agreement with any
Registrar
,
Paying Agent
or
co-
registrar
not a party to this
Indenture
. The agreement shall implement the provisions of this
Indenture
that relate to such agent. The
Company
shall notify the
Trustee
of the name and address of any such agent. If the
Company
fails to maintain a
Registrar
or
Paying Agent
, the
Trustee
shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section
7.07.
The
Company
or
any
Wholly Owned Subsidiary
incorporated
or
organized within the United States of America may act as
Paying Agent, Registrar
, co-
registrar
or
transfer agent.
(c)
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 Section
2.03(c)(i)
. 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.
(d)
The
Company
initially appoints the
Trustee
as
Registrar
and
Paying Agent
in connection with the
Notes
.
SECTION 2.04.
Paying Agent To Hold Money in Trust
. Prior to each due date of the
principal
and
interest
on any
Note
, the
Company
shall deposit with the
Paying Agent
a sum sufficient to pay such
principal
and
interest
when so becoming due. 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
Noteholders
or
the
Trustee
all money held by the
Paying Agent
for the payment of
principal
of
or
interest
on the
Notes
and shall notify the
Trustee
of any
default
by the
Company
in making any such payment. If the
Company
or
a
Subsidiary
acts as
Paying Agent
, it shall segregate the money held by it as
Paying Agent
and hold it as a separate trust fund. 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 the
Paying Agent
. Upon complying with this Section, the
Paying Agent
shall have no further liability for the money delivered to the
Trustee
.
SECTION 2.05.
Noteholder
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
Noteholders
. If the
Trustee
is not the
Registrar
, the
Company
shall furnish,
or
cause the
Registrar
to furnish, to the
Trustee
, in writing at least five
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
Noteholders
.
SECTION 2.06.
Transfer and Exchange
.
(a)
The
Notes
shall be issued in registered form and shall be transferable only upon the surrender of a
Note
for registration of transfer. When a
Note
is presented to the
Registrar
or
a co-
registrar
with a request to register a transfer, the
Registrar
shall register the transfer as requested if the requirements of this
Indenture
and Section 8-401(1) of the
Uniform Commercial Code
are met. When
Notes
are presented to the
Registrar
or
a co-
registrar
with a request to exchange them for an equal
principal
amount of
Notes
of other denominations, the
Registrar
shall register the transfer
or
make the exchange as requested if the same requirements are met. The
Company
may require payment of a sum sufficient to pay all taxes, assessments and other governmental charges in connection with any transfer
or
exchange pursuant to this Section. The
Company
shall not be required to make, and the
Registrar
need not register, transfers
or
exchanges of
Notes
selected for redemption (except, in the case of
Notes
to be redeemed in part, the portion thereof not to be redeemed)
or
of any
Notes
for a period of 15
days
before a selection of
Notes
to be redeemed.
Prior to the due presentation of transfer of any
Note,
the
Company
, the
Trustee
, the
Paying Agent
and the
Registrar
may deem and treat the
person
in whose name a
Note
is registered as the absolute owner of such
Note
for all purposes of receiving payment of
principal
of and
interest
, if any, on such
Note
and for all other purposes whatsoever, whether
or
not such security is overdue, and none of the
Company
, the
Trustee
, a
Paying Agent
or
the
Registrar
shall be affected by notice to the contrary.
All securities issued upon any transfer
or
exchange pursuant to the terms of this
Indenture
shall evidence the same debt and shall be entitled to the same benefits under this
Indenture
as the
Notes
surrendered upon such transfer
or
exchange.
(b)
Any
Registrar
appointed pursuant to Section
2.03
shall provide the
Trustee
such information as the
Trustee
may reasonably require in connection with the delivery by such
Registrar
of
Notes
upon transfer
or
exchange of
Notes
.
(c)
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
Note
between
or
among any member of,
or
participant in, The
Depository Trust Company
(“
DTC
”) (
or
any other securities clearing agency that is registered as such under the
Exchange Act
and is designated by the
Company
to act as a depository for such
Notes
)
or
other beneficial owners of interests in any Global Note 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 thereof.
SECTION 2.07.
Replacement
Notes
. If a mutilated
Note
is surrendered to the
Registrar
or
if the
Holder
of a
Note
claims that the
Note
has been lost, destroyed
or
wrongfully taken, the
Company
shall issue and the
Trustee
shall, upon written order of the Company, authenticate a replacement
Note
if the requirements of Section 8-405 of the
Uniform Commercial Code
are met and the
Holder
(a)
satisfies the
Company
or
the
Trustee
within a reasonable time after such
Holder
has notice of such loss, destruction
or
wrongful taking and the
Registrar
does not register a transfer prior to receiving such notification,
(b)
makes such request to the
Company
or
the
Trustee
prior to the Note being acquired by a protected purchaser as defined in Section 8-303 of the
Uniform Commercial Code
(a “
Protected Purchaser
”)
and
(c)
satisfies any other reasonable requirements of the
Trustee
. If required by the
Trustee
or
the
Company
, such
Holder
shall furnish an indemnity bond sufficient in the judgment of the
Company
and the
Trustee
to protect the
Company
, the
Trustee
, the
Paying Agent
, the
Registrar
and any co-
registrar
from any loss which any of them may suffer if a
Note
is replaced. The
Company
and the
Trustee
may charge the
Holder
for their expenses in replacing a
Note
(
including
, attorneys’ fees and disbursements in replacing such security). In the event any such mutilated, lost, destroyed
or
wrongfully taken
Note
has become
or
is about to become due and payable, the
Company
in its discretion may pay such
Note
instead of issuing a new
Note
in replacement thereof.
Every replacement
Note
is an additional obligation of the
Company
.
SECTION 2.08.
Outstanding
Notes
.
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 and those described in this Section as not outstanding. Subject to Section 11.05, a
Note
does not cease to be outstanding because the
Company
or
an
Affiliate
of the
Company
holds the
Note
.
If a
Note
is replaced pursuant to Section
2.07
, it ceases to be outstanding unless the
Trustee
and the
Company
receive proof satisfactory to them that the replaced
Note
is held by a
Protected Purchaser
.
If the
Paying Agent
segregates and holds in trust, in accordance with this
Indenture
, on a redemption date
or
maturity date money sufficient to pay all
principal
and
interest
payable on that date with respect to the
Notes
(
or
portions thereof) to be redeemed
or
maturing, as the case may be, then on and after that date such
Notes
(
or
portions thereof) cease to be outstanding and
interest
on them ceases to accrue.
SECTION 2.09.
Temporary
Notes
. Until
Definitive Notes
are ready for delivery, the
Company
may prepare and, upon written order of the Company, the
Trustee
shall authenticate temporary
Notes
.
Temporary
Notes
shall be substantially in the form of
Definitive Notes
but may have variations that the
Company
considers appropriate for temporary
Notes
. Without unreasonable delay, the
Company
shall prepare and the
Trustee
shall authenticate
Definitive Notes
and deliver them in exchange for temporary
Notes
at the office
or
agency of the
Company
.
SECTION 2.10.
Cancellation
. The
Company
at any time may deliver
Notes
to the
Trustee
for cancellation. The
Registrar
and the
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 and dispose of (subject to the record retention requirements of the
Exchange Act
) all
Notes
surrendered for registration of transfer, exchange, payment
or
cancellation in accordance with its customary procedures for the
disposition
of cancelled securities and deliver a certificate of such
disposition
to the
Company
unless the
Company
directs the
Trustee
to deliver canceled
Notes
to the
Company
. The
Company
may not issue new
Notes
to replace
Notes
it has redeemed, paid
or
delivered to the
Trustee
for cancellation.
SECTION 2.11.
Defaulted
Interest
. If the
Company
defaults in a payment of
interest
on the
Notes
, the
Company
shall pay defaulted
interest
(plus
interest
on such defaulted
interest
to the extent lawful) in any lawful manner. The
Company
may pay the defaulted
interest
to the persons who are
Noteholders
on a subsequent special record date. The
Company
shall fix
or
cause to be fixed any such special record date and payment date to the reasonable satisfaction of the
Trustee
and shall promptly mail to each
Noteholder
a notice that states the special record date, the payment date and the amount of defaulted
interest
to be paid.
SECTION 2.12.
CUSIP Numbers, ISINs, etc
. The
Company
in issuing the
Notes
may use “CUSIP” numbers, ISINs and “
Common Code
” numbers (in each case if then generally in use) and, if so, the
Trustee
shall use “CUSIP” numbers, ISINs and “Common Code” numbers in notices of redemption as a convenience to
Holders
;
provided, however
,
that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the
Notes
or
as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the
Notes
, and any such redemption shall not be affected by any defect in
or
omission of such numbers. The
Company
shall promptly advise the
Trustee
in writing of any change in any “CUSIP” numbers, ISINs
or
“Common Code” numbers applicable to the
Notes
.
SECTION 2.13.
Issuance of
Additional Notes
. After the
Issue Date
, the
Company
shall be entitled to issue
Additional Notes
under this
Indenture
, which
Notes
shall have identical terms as the
Notes
issued on the
Issue Date
, other than with respect to the date of issuance and
issue price. All the
Notes
issued under this
Indenture
shall be treated as a single class for all purposes of this
Indenture
including
waivers, amendments, redemptions and offers to purchase.
With respect to any
Additional Notes
, the
Company
shall set forth in a resolution of the
Board of Directors
and an
Officer’s Certificate
, a copy of each which shall be delivered to the
Trustee
, the following information:
(1)
the aggregate
principal
amount of such
Additional Notes
to be authenticated and delivered pursuant to this
Indenture
that the
Company
is relying on to issue such
Additional Notes
; and
(2)
the issue price, the
issue date
and the “CUSIP” number of such
Additional Notes
.
ARTICLE 3
Redemption
SECTION 3.01.
Notice to the Trustee
. (a) If the Issuer elects or is required to redeem Notes pursuant to the terms of this Indenture, it must furnish to the Trustee, at least 30 days but not more than 75 days before a redemption date, an Officer’s Certificate setting forth:
(1)
the clause of this Indenture pursuant to which the redemption shall occur;
(2)
the redemption date;
(3)
the principal amount of Notes to be redeemed; and
(4)
the redemption price.
(b)
Any optional redemption referenced in such Officer’s Certificate may be cancelled by the Issuer at any time prior to notice of redemption being sent to any Holder and thereafter shall be null and void.
SECTION 3.02.
Selection of
Notes
to Be Redeemed
. If less than all of the Notes are to be redeemed pursuant to Sections 3.06, the Trustee shall select the Notes for redemption in compliance with the requirements of the principal securities exchange, if any, on which the Notes are listed, as certified to the Trustee by the Issuer, and in compliance with the requirements of DTC, or if the Notes are not so listed or such exchange prescribes no method of selection and the Notes are not held through DTC, or DTC prescribes no method of selection, on a pro rata basis, by lot or by using any other method that it deems fair and appropriate. The Trustee shall make the selection from outstanding Notes not previously called for redemption. The Trustee may select for redemption portions of the principal of Notes that have denominations larger than $2,000. Notes and portions of them the Trustee selects shall be in principal amounts of $2,000 or whole multiples of $1,000 in excess of $2,000. Provisions of this Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption. The Trustee shall notify the Company promptly of the Notes or portions of Notes to be redeemed
SECTION 3.03.
Notice of Redemption
. At least 15
days
but not more than 60
days
before a date for redemption of
Notes
, the
Company
shall mail
or
cause to be mailed a notice of redemption by first-class mail or to be delivered in accordance with the applicable procedures of DTC to each
Holder
of
Notes
(with a copy of such notice to the
Trustee
) to be redeemed at such
Holder
’s registered address.
The notice shall identify the
Notes
to be redeemed and shall state:
(1)
the redemption date;
(2)
the redemption price;
(3)
the name and address of the
Paying Agent
;
(4)
that
Notes
called for redemption must be surrendered to the
Paying Agent
to collect the redemption price, plus accrued
interest
;
(5)
if fewer than all the outstanding
Notes
are to be redeemed, the certificate numbers and
principal
amounts of the particular
Notes
to be redeemed;
(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 “CUSIP” number, ISIN
or
“Common Code” number, if any, printed on the
Notes
being redeemed; and
(8)
that
no representation is made as to the correctness
or
accuracy of the “CUSIP” number, ISIN,
or
“Common Code” number, if any, listed in such notice
or
printed on the
Notes
.
At the
Company
’s request, delivered at least 15
days
before the date such notice is to be given to the
Holder
(unless a shorter period shall be acceptable to the
Trustee), the
Trustee
shall give the notice of redemption in the
Company
’s name and at the
Company
’s expense. In such event, the
Company
shall provide the
Trustee
with the information required by this Section, which the Trustee shall be entitled to rely upon.
Notice of any redemption may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of an equity offering, debt offering or other financing or Change of Control. In addition, if such redemption is subject to satisfaction of one or more conditions precedent, such notice of redemption shall describe each such condition, and if applicable, shall state that, in the Company’s discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied (or waived by us in our sole discretion), or that such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied (or waived by us in our sole discretion) by the redemption date as stated in such notice, or by the redemption
date as so delayed. The Company may provide in such notice that payment of the redemption price and performance of our obligations with respect to such redemption may be performed by another Person.
SECTION 3.04.
Effect of Notice of Redemption
. Once notice of redemption is mailed or delivered in accordance with the applicable procedures of DTC,
Notes
called for redemption become due and payable on the redemption date and at the redemption price stated in the notice. Upon surrender to the
Paying Agent
, such
Notes
shall be paid at the redemption price stated in the notice, plus accrued
interest
to the redemption date (subject to the right of
Holders
of record
on the relevant record date to receive
interest
due on the related
interest
payment date), and such
Notes
shall be canceled by the
Trustee
. Failure to give notice
or
any defect in the notice to any
Holder
shall not affect the validity of the notice to any other
Holder
.
SECTION 3.05.
Deposit of Redemption Price
. Prior to the redemption date, the
Company
shall deposit with the
Paying Agent
(
or
, if the
Company
or
a
Wholly Owned
Subsidiary
is the
Paying Agent
, shall segregate and hold in trust) money sufficient to pay the redemption price of and accrued
interest
on all
Notes
to be redeemed on that date other than
Notes
or
portions of
Notes
called for redemption which have been delivered by the
Company
to the
Trustee
for cancellation.
SECTION 3.06.
Notes Redeemed in Part
. Upon surrender of a
Note
that is redeemed in part, the
Company
shall execute and the
Trustee
shall authenticate for the
Holder
(at the
Company
’s expense) a new
Note
equal in
principal
amount to the unredeemed portion of the
Note
surrendered.
SECTION 3.07.
Optional Redemption
.
(a)
The
Company
, at its option, may redeem all,
or
from time to time, any part of the
Notes
on not less than 15
days
nor more than 60
days’
notice as provided in paragraph 6 of the
Notes
(except that, notwithstanding the provisions of Section 3.02 of this
Indenture
, any notice of redemption for the
Notes
given pursuant to this Section need not set forth the redemption price but only the manner of calculation thereof) at a redemption price (“
Make Whole Redemption Price
”) equal to the greater of the following amounts:
(1)
100% of the
principal
amount of the
Notes
then outstanding to be so redeemed; and
(2)
the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed on that redemption date (not including any portion of payments of interest accrued to the redemption date), discounted to the applicable redemption date on a semi-annual basis at a rate equal to the sum of the Treasury Rate plus 0.50%,
plus,
in each of the above clauses
(b)(1)
and
(b)(2)
, accrued and unpaid
interest
, if any, on the
principal
amount being redeemed to, but excluding, the applicable redemption date.
The
Make Whole
Redemption Price
for the
Notes
will be calculated by the
Independent
Investment
Banker
assuming a 360-day year consisting of twelve 30-day months. For purposes
of calculating the
Make Whole Redemption Price
pursuant to the foregoing optional redemption provisions, the following terms will have the meanings set forth below:
“
Comparable Treasury Issue
”
means the U.S. Treasury security or securities selected by the Independent Investment Banker as having a maturity comparable to the remaining term of the Notes (as measured from the date of redemption) that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Notes.
“
Comparable Treasury Price
”
means, with respect to any redemption date:
(1)
the average of the
Reference Treasury Dealer Quotations
for that redemption date, after excluding the highest and lowest of the
Reference Treasury Dealer Quotations
;
(2)
if the
Company
obtains fewer than four
Reference Treasury Dealer Quotations
, the average of all
Reference Treasury Dealer Quotations
so received;
or
(3)
if only one
Reference Treasury Dealer Quotation
is received, such quotation.
“
Independent Investment Banker
”
means one of the
Reference Treasury Dealers
selected by the
Company
.
“
Reference Treasury Dealer
” means each of four primary
U.S. Government
securities dealers in
New York City
(each a “
Primary Treasury Dealer
”), consisting of (i)
J.P. Morgan Securities LLC
(
or
its
affiliate
), and (ii) three other nationally recognized
investment
banking firms (
or
their affiliates) that the
Company
selects in connection with the particular redemption, and their respective successors,
provided
that if any of them ceases to be a
Primary Treasury Dealer
, the
Company
will substitute another nationally recognized
investment
banking firm (
or
its
affiliate
) that is a
Primary Treasury Dealer
.
“
Reference Treasury Dealer Quotations
” means, with respect to each
Reference Treasury Dealer
and any redemption date, the average, as determined by the
Independent
Investment
Banker
, of the bid and asked prices for the
Comparable Treasury Issue
(expressed as a percentage of its
principal
amount) quoted in writing to the
Independent
Investment
Banker
by such
Reference Treasury Dealer
at 3:30 p.m., New York City time, on the third
Business Day
preceding that redemption date.
“
Treasury Rate
” means, with respect to any redemption date, the rate per year equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue
, calculated on the third
Business Day
preceding the applicable redemption date, assuming a price for the
Comparable Treasury Issue
(expressed as a percentage of its
principal
amount) equal to the
Comparable Treasury Price
for that redemption date.
(b)
In addition, the Company may redeem the Notes, in whole or in part from time to time, at its option, on or after May 15, 2024 at a redemption price equal to 100% of the
aggregate principal amount of the Notes plus accrued and unpaid interest, if any, to, but excluding, the redemption date.
(c)
Any redemption pursuant to this Section
3.06
shall be made in a manner consistent with the provisions of Sections
3.01
through 3.05 hereof to the extent applicable.
Unless the
Company
defaults in the payment of the applicable redemption price, on and after the applicable redemption date,
interest
will cease to accrue on the
Notes
or
portions of the
Notes
called for redemption.
If the optional redemption date is after an
interest
record date and on
or
before the related
interest
payment date, the accrued and unpaid
interest
, if any, will be paid to the
Person
in whose name the
Note
is registered at the close of business, on such record date, and no additional
interest
shall be payable to
Holders
whose
Notes
are subject to redemption by the
Company
.
ARTICLE 4
Covenants
SECTION 4.01.
Payment of
Notes
.
The
Company
shall promptly pay the
principal
of and
interest
on the
Notes
on the dates and in the manner provided in the
Notes
and in this
Indenture
.
Principal
and
interest
shall be considered paid on the date due if on such date the
Trustee
or
the
Paying Agent
holds in accordance with this
Indenture
money sufficient to pay all
principal
and
interest
then due.
SECTION 4.02.
SEC Reports
.
(a)
So long as any
Notes
are outstanding, the
Company
will furnish to the
Trustee
:
(1)
within 90
days
after the end of each fiscal year, annual reports of the
Company
containing substantially all of the information that would have been required to be contained in an
Annual Report
on Form 10-K under the
Exchange Act
if the
Company
had been a reporting
company
under the
Exchange Act
(but only to the extent similar information was included in the
Offering Memorandum
)
,
including
(A) “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and (B) audited financial statements prepared in accordance with
GAAP
,
or
to the extent the
Company
is a reporting
Company
, the Annual Report on Form 10-K as filed under the
Exchange Act
;
(2)
within 45
days
after the end of each of the first three fiscal quarters of each fiscal year, quarterly reports of the
Company
containing substantially all of the information that would have been required to be contained in a
Quarterly Report
on Form 10-Q under the
Exchange Act
if the
Company
had been a reporting
company
under the
Exchange Act
(but only to the extent similar information was provided in the
Offering Memorandum
)
,
including
(A) “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and (B) unaudited quarterly financial statements prepared in accordance with
GAAP
and reviewed pursuant to
Statement
on Auditing Standards No. 100 (
or
any successor provision),
or
to the extent the
Company
is a
reporting
Company
, the Quarterly Report on Form 10-Q as filed under the
Exchange Act
; and
(3)
within five
Business Days
after the occurrence of each event that would have been required to be reported in a
Current Report
on Form 8-K under the
Exchange Act
if the
Company
had been a reporting
company
under the
Exchange Act
, current reports containing substantially all of the information that would have been required to be contained in a Current Report on Form 8-K under the
Exchange Act
if the
Company
had been a reporting
company
under the
Exchange Act
;
provided
,
however
, that no such current report will be required to be furnished if the
Company
determines in its good faith judgment that such event is not material to
Holders
or
the business, assets, operations, financial positions
or
prospects of the
Company
and its
Subsidiaries
, taken as a whole;
provided
,
however
, that such reports (A) will not be required to comply with Section 302
or
Section 404 of the
Sarbanes-Oxley Act of 2002
,
or
related Items 307 and 308 of Regulation S-K promulgated by the
SEC
,
or
Item 10(e) of Regulation S-K (with respect to any non-
GAAP
financial measures contained therein) and (B) will not be required to contain the separate financial information for
Guarantors
contemplated by
Rule 3-10 of Regulation S-X
promulgated by the
SEC
. The availability of the foregoing materials on the SEC’s EDGAR service shall be deemed to satisfy the delivery obligation of the
Company
.
(b)
So long as any
Notes
are outstanding, the
Company
will also maintain a public website to which all of the reports required by Section
4.02(a)
are posted.
In addition, the
Company
shall furnish to
Holders
, prospective investors approved by the
Company
, broker-dealers approved by the
Company
and securities analysts, upon their request, any information required to be delivered pursuant to
Rule 144A
(d)(4) under the
Securities Act
so long as the
Notes
are not freely transferable under the
Securities Act
. Delivery of such reports, information and documents to the
Trustee
is for informational purposes only and the
Trustee
’s receipt of such shall not constitute constructive notice of any information contained therein
or
determinable from information contained therein,
including
the
Company
’s compliance with any of its covenants hereunder (as to which the
Trustee
is entitled to rely exclusively on
Officer
’s Certificates).
SECTION 4.03.
Change of Control
.
(a)
Upon the occurrence of a
Change of Control Triggering Event
, each
Holder
shall have the right to require that the
Company
repurchase such
Holder
’s
Notes
at a purchase price in cash equal to 101% of the
principal
amount thereof on the date of purchase plus accrued and unpaid
interest
, if any, to, but excluding, the date of purchase (subject to the right of holders of record
on the relevant record date to receive
interest
, if any, due on the relevant
interest
payment date), in accordance with the terms contemplated in Section
4.03(b)
.
(b)
Within 30
days
following any
Change of Control Triggering Event
, the
Company
shall mail
or
otherwise deliver in accordance with the applicable procedures of
DTC
a notice to each
Holder
with a copy to the Trustee (the “
Change of Control Offer
”) stating:
(1)
that a
Change of Control Triggering Event
has occurred and that such
Holder
has the right to require the
Company
to purchase such
Holder
’s
Notes
at a purchase price in cash equal to 101% of the
principal
amount thereof on the date of purchase, plus accrued and unpaid
interest
to the date of purchase (subject to the right of
Holders
of record
on the relevant record date to receive
interest
on the relevant
interest
payment date);
(2)
the circumstances and relevant facts regarding such
Change of Control Triggering Event
(
including
information with respect to
pro forma
historical income, cash flow and capitalization, in each
case
after giving effect
to such
Change of Control
);
(3)
the
purchase date
(which shall be no earlier than 30
days
nor later than 60
days
from the date such notice is mailed); and
(4)
the instructions, as determined by the
Company
, consistent with this
Indenture
and this Section
4.
03
, that a
Holder
must follow in order to have its
Notes
repurchased.
(c)
Holders
electing to have a
Note
repurchased under this Section
4.
03
will be required to surrender the
Note
, with an appropriate form duly completed, to the
Company
at the address specified in the notice at least three
Business Days
prior to the
purchase date
.
Holders
will be entitled to withdraw their election if the
Trustee
or
the
Company
receives not later than one
Business Day
prior to the
purchase date
, a telegram, telex, facsimile transmission
or
letter setting forth the name of the
Holder
, the
principal
amount of the
Note
which was delivered for purchase by the
Holder
and a statement that such
Holder
is withdrawing his election to have such
Note
purchased.
(d)
On the
purchase date
, all
Notes
purchased by the
Company
under this Section
4.
03
shall be delivered by the
Company
to the
Trustee
for cancellation, and in accordance with Section
4.03(a)
, the
Company
shall pay the purchase price plus accrued and unpaid
interest
, if any, to the
Holders
entitled thereto.
(e)
Notwithstanding the foregoing provisions of this Section
4.
03
, the
Company
shall not be required to make a
Change of Control Offer
following a
Change of Control Triggering Event
if a third party makes the
Change of Control Offer
in the manner, at the times and otherwise in compliance with the requirements set forth in this Section
4.
03
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)
Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Triggering Event, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
(g)
The
Company
shall comply, to the extent applicable, with the requirements of Section 14(e) of the
Exchange Act
and any other securities laws
or
regulations in connection with the repurchase of
Notes
as a result of a
Change of Control Triggering Event
. To the extent that the provisions of any securities laws
or
regulations conflict with the
provisions of this Section
4.
03
, the
Company
shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its
obligations
under this Section
4.
03
by virtue of its compliance with such securities laws
or
regulations.
SECTION 4.04.
Limitation on
Liens
.
The Company shall not, not shall it permit any Restricted Subsidiary to, directly or indirectly, Incur any Lien (the “
Initial Lien
”) of any nature whatsoever on any Principal Property or on the capital stock of any Subsidiary, whether owned at the Issue Date or thereafter acquired, securing any Indebtedness, other than Permitted Liens, without effectively providing that the Notes shall be secured equally and ratably with (or prior to) the obligations so secured for so long as such obligations are so secured. Any Lien created for the benefit of the Holders of the Notes pursuant to the preceding sentence shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Initial Lien.
SECTION 4.05.
Limitation on
Sale/Leaseback Transactions
.
(a)
The Company shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any arrangement with any other Person pursuant to which the Company or any of its Restricted Subsidiaries leases any Principal Property that has been or is to be sold or transferred by the Company or the Restricted Subsidiary to such other Person (a “
Sale/Leaseback Transaction”
), except that a Sale/Leaseback Transaction is permitted if the Company or such Restricted Subsidiary would be entitled to incur Indebtedness secured by a Lien on the Principal Property to be leased, without equally and ratably securing the Notes, in an aggregate principal amount equal to the Attributable Debt with respect to such Sale/Leaseback Transaction.
(b)
The following Sale/Leaseback Transactions are not subject to the limitation above and the provisions described in Section 4.05(a) above:
(1)
temporary leases for a term, including renewals at the option of the lessee, of not more than three years;
(2)
leases between only the Company and a Restricted Subsidiary of the Company or only between Restricted Subsidiaries of the Company;
(3)
leases where the proceeds from the sale of the subject property are at least equal to the fair market value (as determined in good faith by the Company) of the subject property and the Company applies an amount equal to the net proceeds of the sale to the retirement of long term Indebtedness or the purchase, construction, development, expansion or improvement of other property or equipment used or useful in its business whether through the direct purchase of assets or the Capital Stock of any Person owning such assets, within 270 days of the effective date of such sale; provided that in lieu of applying such amount to the retirement of long-term Indebtedness, the Company may deliver notes or other debt securities to the trustee for cancellation; and
(4)
leases of property executed by the time of, or within 270 days after the latest of, the acquisition, the completion of construction, development, expansion or improvement, or the commencement of commercial operation, of the subject property.
SECTION 4.06.
Additional Subsidiary Guarantees
. If the Company or any of the Subsidiary Guarantors acquires or creates another Domestic Subsidiary after the Issue Date (other than an Excluded Subsidiary) and such newly acquired or created Domestic Subsidiary guarantees (or is a guarantor of) any other Indebtedness of the Company, then that newly acquired or created Domestic Subsidiary will become a Subsidiary Guarantor and execute a supplemental indenture within 20 Business Days of the date on which it was acquired or created or such later date on which it guarantees (or is a guarantor of) such other Indebtedness of the Company. “Excluded Subsidiary” shall mean Wolf Trax USA Inc. and Wolf Trax Holdings Inc. for so long as they hold no material assets and incur no Indebtedness (other than the existing guarantee of the Credit Agreement dated as of November 28, 2001, as amended and restated from time to time, among the Company, Sifto Canada Corp., Salt Union Limited, the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent.
SECTION 4.07.
Compliance Certificate
.
The
Company
shall deliver to the
Trustee
within 120
days
after the end of each fiscal year of the
Company
an
Officer’s Certificate
stating that in the course of the performance by the signers of their duties as
Officer
of the
Company
they would normally have knowledge of any
Default
or Event of Default
and whether
or
not the signer knows of any
Default
or Event of Default
that occurred during such period. If they do, the certificate shall describe the
Default
or Event of Default
, its status and what action the
Company
is taking
or
proposes to take with respect thereto.
The
Company
shall deliver to the
Trustee
, as soon as possible and in any event within
thirty days
after the
Company
becomes aware of the occurrence of any Event of
Default
or
an event which, with notice
or
the lapse of time
or
both, would constitute an Event of
Default
, an
Officer’s Certificate
setting forth the details of such Event of
Default
or
default
and the action which the
Company
proposes to take with respect thereto.
SECTION 4.08.
Further Instruments and Acts
. Upon request of the
Trustee
,
or
as otherwise necessary, the
Company
shall execute and deliver such further instruments and do such further acts as may be reasonably necessary
or
proper to carry out more effectively the purpose of this
Indenture
.
ARTICLE 5
SECTION 5.01.
When Company
May
Merge
or
Transfer Assets
. The
Company
shall not consolidate with
or
merge with
or
into,
or
convey, transfer, lease, assign
or
otherwise dispose of, in one transaction
or
a series of transactions, directly
or
indirectly, all
or
substantially all its assets to, any
Person
, unless:
(1)
the resulting, surviving
or
transferee
Person
(the “
Successor Company
”) shall be a
Person
organized and existing under the laws of the United States of America, any State thereof
or
the
District of Columbia
and the Successor Company (if not the
Company
) shall expressly assume, by agreements, executed and delivered to the
Trustee
, in form satisfactory to the
Trustee
, all the
obligations
of the
Company
under the
Notes
and this
Indenture
;
(2)
immediately
after giving
pro forma
effect
to such
transaction (and treating any
Indebtedness
which becomes an obligation of the Successor Company
or
any
Subsidiary
as a result of such transaction as having been Incurred by such
Successor Company
or
such
Subsidiary
at the time of such transaction), no
Default or Event of Default
shall have occurred and be continuing; and
(3)
the
Company
shall have delivered to the
Trustee
an
Officer’s Certificate
and an
Opinion of Counsel
, each stating that such consolidation, merger
or
transfer and such supplemental
indenture
(if any) comply with this
Indenture
.
In addition, the
Company
will not, directly
or
indirectly, lease all
or
substantially all of the properties and assets of it and its
Subsidiaries
taken as a whole, in one
or
more related transactions, to any other
Person
.
This Section
5.01
will not apply to a merger, consolidation, sale, assignment, transfer, conveyance
or
other
disposition
of assets between
or
among the
Company
and its
Subsidiaries
.
For purposes of this Section
5.01
, the sale, lease, conveyance, assignment, transfer
or
other
disposition
of all
or
substantially all of the properties and assets of one
or
more
Subsidiaries
of the
Company
, which properties and assets, if held by the
Company
instead of such
Subsidiaries
, would constitute all
or
substantially all of the properties and assets of the
Company
on a consolidated basis, shall be deemed to be the transfer of all
or
substantially all of the properties and assets of the
Company
.
The
Successor Company
shall be the successor to the
Company
and shall succeed to, and be substituted for, and may exercise every right and power of, the
Company
under this
Indenture
, and the predecessor
Company
, except in the case of a lease, shall be released from the obligation to pay the
principal
of and
interest
on the
Notes
.
ARTICLE 6
SECTION 6.01.
Events of
Default
.
Each of the following is an “Event of
Default
”:
(1)
a
default
in any payment of
interest
on any
Note
when the same becomes due and payable, and such
default
continues for a period of 30
days
;
(2)
(A) a
default
in the payment of the
principal
of any
Note
when the same becomes due and payable at its
Stated Maturity
, upon optional redemption, upon declaration of acceleration
or
otherwise,
or
(B) the failure by the
Company
to purchase
Notes
when required pursuant to this
Indenture
or
the
Notes
;
(3)
the failure by the
Company
to comply with Section
5.01
;
(4)
the failure by the
Company
to comply with Section
4.02
, 4.
03
or
4.04 (other than a failure to purchase
Notes
when required under Section 4.03) and such failure continues for 30
days
after the notice specified in the second to last paragraph of this Section
6.01
below;
(5)
the failure by the
Company
to comply with any of its agreements contained in the
Notes
or
this
Indenture
(other than those referred to in clause
(1)
,
(2)
,
(3)
or
(4)
above (
or
a failure to give notice described in clause
(4)
above)) and such failure continues for 90
days
after the notice specified in the second to last paragraph of this Section
6.01
below;
(6)
Indebtedness
of the
Company
or
any
Significant Subsidiary
(other than with respect to the
Notes
) is not paid within any applicable grace period after final maturity
or
is accelerated by the holders thereof because of a
default
and the total amount of such
Indebtedness
unpaid
or
accelerated exceeds $40.0 million,
or
its foreign currency equivalent at the time;
(7)
the
Company
or
any
Significant Subsidiary
pursuant to
or
within the meaning of any
Bankruptcy Code
:
(A)
commences a voluntary case;
(B)
consents to the entry of an order for relief against it in an involuntary case;
(C)
consents to the appointment of a
Custodian
of it
or
for any substantial part of its property;
or
(D)
makes a general assignment for the benefit of its creditors;
or
takes any comparable action under any foreign laws relating to insolvency;
(8)
a court of competent jurisdiction enters an order
or
decree under any
Bankruptcy Code
that:
(A)
is for relief against the
Company
or
any
Significant Subsidiary
in an involuntary case;
(B)
appoints a
Custodian
of the
Company
or
any
Significant Subsidiary
or
for any substantial part of its property;
or
(C)
orders the winding up
or
liquidation of the
Company
or
any
Significant Subsidiary
;
or
any similar relief is granted under any foreign laws and the order
or
decree remains unstayed and in effect for 60
days
;
(9)
any final, nonappealable judgment
or
decree for the payment of money which, when taken together with all other final, nonappealable judgments
or
decrees for the payment of money, causes the aggregate amount of such judgments
or
decrees entered against the
Company
or
any
Significant Subsidiary
to exceed $40.0 million (net of any amounts with respect to which an insurance
company
has acknowledged liability in writing), remains outstanding for a period of 60 consecutive
days
following such judgment and is not discharged, waived
or
stayed;
or
(10)
any
Subsidiary Guarantee
of a
Significant Subsidiary
or the Guarantee of a group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Company), would constitute a Significant Subsidiary,
ceases to be in full force and effect (except as contemplated by the terms of this
Indenture
)
or
is declared null and void in a judicial proceeding
or
any
Subsidiary
Guarantor
that is a
Significant Subsidiary
or group of Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Company), would constitute a Significant Subsidiary,
denies
or
disaffirms its
obligations
under this
Indenture
or
its
Subsidiary Guarantee
.
The foregoing will constitute Events of
Default
whatever the reason for any such Event of
Default
and whether it is voluntary
or
involuntary
or
is effected by operation of law
or
pursuant to any judgment, decree
or
order of any court
or
any order, rule
or
regulation of any administrative
or
governmental body.
The term “
Bankruptcy Code
” means
Title 11
,
United States Code
,
or
any similar Federal
or
state law for the relief of debtors. The term “
Custodian
” means any receiver,
trustee
, assignee, liquidator, custodian
or
similar official under any
Bankruptcy Code
.
A
Default
under clauses
(4)
or
(5)
is not an Event of
Default
until the
Trustee
or
the holders
of at least 25% in
principal
amount
of the outstanding
Notes
notify the
Company
of the
Default
and the
Company
does not cure such
Default
within the time specified after receipt of such notice. Such notice must specify the
Default
, demand that it be remedied and state that such notice is a “
Notice of Default
”.
The
Company
shall deliver to the
Trustee
, within 30
days
after the occurrence thereof, written notice in the form of an
Officer’s Certificate
of any Event of
Default
under clause
(6)
and any event which with the giving of notice
or
the lapse of time would become an Event of
Default
under clause
(4)
,
(5)
or
(9)
, its status and what action the
Company
is taking
or
proposes to take with respect thereto.
SECTION 6.02.
Acceleration
. If an Event of
Default
(other than an Event of
Default
specified in Section
6.01(7)
or
(8)
with respect to the
Company
) occurs and is continuing, the
Trustee
by written notice to the
Company
,
or
the
Holders
of at least 25% in
principal
amount
of the outstanding
Notes
by written notice to the
Company
and the
Trustee
, may declare the
principal
of and accrued but unpaid
interest
on all the
Notes
to be due and payable. Upon such a declaration, such
principal
and
interest
shall be due and payable immediately. In the event of a declaration of acceleration of the
Notes
because an Event of
Default
described in Section
6.01(6)
with respect to other
Indebtedness
has occurred and is
continuing, the declaration of acceleration of the
Notes
shall be automatically annulled if the Event of
Default
or
payment
default
triggering such Event of
Default
pursuant to Section
6.01(6)
shall be remedied
or
cured by the
Company
or
a
Subsidiary
of the
Company
or
waived by the holders of the relevant
Indebtedness
within 20
days
after the declaration of acceleration with respect thereto and if
(1)
the annulment of the acceleration of the
Notes
would not conflict with any judgment
or
decree of a court of competent jurisdiction, and
(2)
all existing
Defaults
or
Events of
Default
, except nonpayment of
principal
, premium
or
interest
on the
Notes
that became due solely because of the acceleration of the
Notes
, have been cured
or
waived. If an Event of
Default
specified in Section
6.01(7)
or
(8)
with respect to the
Company
occurs, the
principal
of and
interest
on all the
Notes
shall
ipso facto
become and be immediately due and payable without any declaration
or
other act on the part of the
Trustee
or
any
Noteholders
. The
Holders
of a majority in
principal
amount of the outstanding
Notes
by written notice to the
Trustee
may rescind an acceleration and its consequences if the rescission would not conflict with any judgment
or
decree and if all existing Events of
Default
have been cured
or
waived except nonpayment of
principal
or
interest
that has become due solely because of acceleration. No such rescission shall affect any subsequent
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 to collect the payment of
principal
of
or
interest
on the
Notes
or
to enforce the performance of any provision of the
Notes
or
this
Indenture
.
The
Trustee
may maintain a proceeding even if it does not possess any of the
Notes
or
does not produce any of them in the proceeding. A delay
or
omission by the
Trustee
or
any
Noteholder
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 available remedies are cumulative.
SECTION 6.04.
Waiver of Past Defaults
.
The
Holders
of a majority in
principal
amount of the
Notes
by written notice to the
Trustee
may waive an existing
Default
and its consequences except
(a)
a
Default
in the payment of the
principal
of
or
interest
on a
Note,
(b)
a
Default
arising from the failure to redeem
or
purchase any
Note
when required pursuant to this
Indenture
or
(c) a
Default
in respect of a provision that under Section
9.02
cannot be amended without the consent of each
Noteholder
affected. When a
Default
is waived, it is deemed cured, but no such waiver shall extend to any subsequent
or
other
Default
or
impair any consequent right.
SECTION 6.05.
Control
by Majority
. The
Holders
of a majority in
principal
amount of the
Notes
may direct the time, method and place of conducting any proceeding for any remedy available to the
Trustee
or
of exercising any trust
or
power conferred on the
Trustee
. However, the
Trustee
may refuse to follow any direction that conflicts with law
or
this
Indenture
or
, subject to Section
7.01
, that the
Trustee
determines is unduly prejudicial to the rights of other
Noteholders
or
would involve the
Trustee
in personal liability;
provided, however
,
that the
Trustee
may take any other action deemed proper by the
Trustee
that is not inconsistent with such direction. Prior to taking any action hereunder, the
Trustee
shall be entitled to indemnification satisfactory to it in its sole discretion against all losses and expenses caused by taking
or
not taking such action.
SECTION 6.06.
Limitation on Suits
. Except to enforce the right to receive payment of
principal
, premium (if any)
or
interest
when due, no
Noteholder
may pursue any remedy with respect to this
Indenture
or
the
Notes
unless:
(1)
the
Holder
delivers to the
Trustee
written notice stating that an Event of
Default
is continuing;
(2)
the
Holders
of at least 25% in
principal
amount
of the
Notes
make a written request to the
Trustee
to pursue the remedy;
(3)
such
Holder
or
Holders
offer
to the
Trustee
security
or
indemnity satisfactory to the
Trustee
against any loss, liability
or
expense;
(4)
the
Trustee
does not comply with the request within 60
days
after receipt of the request and the
Trustee
has received an
offer
of security
or
indemnity; and
(5)
the
Holders
of a majority in
principal
amount of the
Notes
do not give the
Trustee
a direction inconsistent with the request thereof during such 60-day period.
A
Noteholder
may not use this
Indenture
to prejudice the rights of another
Noteholder
or
to obtain a preference
or
priority over another
Noteholder
(it being understood that the
Trustee
does not have an affirmative duty to ascertain whether
or
not such actions
or
forbearances are unduly prejudicial to such
Noteholders
). In the event that the
Definitive Notes
are not issued to any beneficial owner promptly after the
Registrar
has received a request from the
Holder
of a Global Note to issue such
Definitive Notes
to such beneficial owner of its nominee, the
Company
expressly agrees and acknowledges, with respect to the right of any
Holder
to pursue a remedy pursuant to this
Indenture
, the right of such beneficial
holder
of
Notes
to pursue such remedy with respect to the portion of the Global Note that represents such beneficial
holder
’s
Notes
as if such
Definitive Notes
had been issued.
SECTION 6.07.
Rights of
Holders
to Receive Payment
. Notwithstanding any other provision of this
Indenture
, the right of any
Holder
to receive payment of
principal
of and
interest
on the
Notes
held by such
Holder
, on
or
after the respective due dates expressed in the
Notes
,
or
to bring suit for the enforcement of any such payment on
or
after such respective dates, shall not be impaired
or
affected without the consent of such
Holder
.
SECTION 6.08.
Collection Suit by
Trustee
. If an Event of
Default
specified in Section
6.01(1)
or
(2)
occurs and is continuing, the
Trustee
may recover judgment in its own name and as
trustee
of an express trust against the
Company
for the whole amount then due and owing (together with
interest
on any unpaid
interest
to the extent lawful) and the amounts provided for in 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
and the
Noteholders
allowed in any judicial proceedings relative to the
Company
, its creditors
or
its property and, unless prohibited by law
or
applicable regulations, may vote on behalf of the
Holders
in any election of a
trustee
in bankruptcy
or
other
Person
performing similar functions, and any
Custodian
in any such judicial proceeding is hereby
authorized by each
Holder
to make payments to the
Trustee
and, in the event that the
Trustee
shall consent in writing to the making of such payments directly to the
Holders
, to pay to the
Trustee
any amount due it for the reasonable compensation, expenses, disbursements and advances of the
Trustee
, its agents and its counsel, and any other amounts due the
Trustee
under Section
7.07.
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
Noteholders
for amounts due and unpaid on the
Notes
for
principal
and
interest
, ratably, without preference
or
priority of any kind, according to the amounts due and payable on the
Notes
for
principal
and
interest
, respectively; and
The
Trustee
may fix a record date and payment date for any payment to
Noteholders
pursuant to this Section. At least 15
days
before such record date, the
Company
shall mail to each
Noteholder
and the
Trustee
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
Trustee
, a court in its discretion may require the filing by any party litigant (other than the
Trustee
) in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs,
including
reasonable attorneys’ fees 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
or
a suit by
Holders
of more than 10% in aggregate
principal
amount of the
Notes
.
SECTION 6.12.
Waiver of Stay
or
Extension Laws
. The
Company
(to the extent it may lawfully do so) shall not at any time insist upon,
or
plead,
or
in any manner whatsoever claim
or
take the benefit
or
advantage of, any stay
or
extension law wherever enacted, now
or
at any time hereafter in force, which may affect the covenants
or
the performance of this
Indenture
; and the
Company
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or
advantage of any such law, and shall not hinder, delay
or
impede the execution of any power herein granted to the
Trustee
, but shall suffer and permit the execution of every such power as though no such law had been enacted.
SECTION 6.13.
Sole Remedy for Failure to Report
. Notwithstanding any other provision of this
Indenture
, the sole remedy for an Event of
Default
relating to the failure of the
Company
to comply with its agreements under Section 4.02(a) of this
Indenture
will for the 180 calendar
days
after the occurrence of such an Event of
Default
consist exclusively of the right to receive additional
interest
(“
Reporting Additional Interest
”) on the
principal
amount of the
Notes
at a rate equal to 0.50% per annum. This
Reporting Additional Interest
will be payable in the same manner and on the same interest payment dates and subject to the same terms as other
interest
payable under this
Indenture
.
Reporting Additional Interest
will accrue on all outstanding
Notes
from and
including
the date on which such Event of
Default
relating to a failure to comply with Section 4.02(a) first occurs to but not
including
the 180th calendar day thereafter (
or
such earlier date on which the Event of
Default
relating to a failure to comply with Section
4.02(a)
shall have been cured
or
waived). On such 180th calendar day (
or
such earlier date on which the Event of
Default
relating to a failure to comply with Section
4.02(a)
shall have been cured
or
waived), such
Reporting Additional Interest
will cease to accrue and on such 180th calendar day the
Notes
will be subject to acceleration and other remedies as provided in this Article
6
if the Event of
Default
is continuing. For the avoidance of doubt, the provisions of this Section
6.13
will not affect the rights of
Holders
in the event of the occurrence of any other Event of
Default
. For the further avoidance of doubt, the
Reporting Additional Interest
shall not begin accruing until the
Company
fails to comply with Section
4.02(a)
for a period of 60 calendar
days
after written notice of such failure is given to the
Company
by the
Trustee
or
to the
Company
and the
Trustee
by the
Holders
of at least 25% in aggregate
principal
amount
of outstanding
Notes
.
SECTION 7.01.
Duties of
Trustee
.
(a)
If an Event of
Default
has occurred and is continuing, the
Trustee
shall exercise the rights and powers vested in it by this
Indenture
and use the same degree of care and skill in its exercise of those rights and powers as a prudent
Person
would exercise
or
use under the circumstances in the conduct of such
Person
’s own affairs.
(b)
Except during the continuance of an Event of
Default
:
(1)
the
Trustee
undertakes to perform such duties and only such duties as are specifically set forth in this
Indenture
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, the
Trustee
shall examine the certificates and opinions to determine whether
or
not they conform to the requirements of this
Indenture
(but need not confirm
or
investigate the accuracy of mathematical calculations
or
other facts stated therein).
(c)
The
Trustee
may not be relieved from liability for its own negligent action, its own negligent failure to act
or
its own willful misconduct, except that:
(1)
this paragraph
(c)
does not limit the effect of paragraph (b) of this Section;
(2)
the
Trustee
shall not be liable for any error of judgment made in good faith by a
Responsible Officer
unless it is proved that the
Trustee
was negligent in ascertaining the pertinent facts; and
(3)
the
Trustee
shall not be liable with respect to any action it takes
or
omits to take in good faith in accordance with a direction received by it pursuant to Section
6.05.
(d)
Every provision of this
Indenture
that in any way relates to the
Trustee
is subject to paragraphs (a), (b) and (c) of this Section.
(e)
The
Trustee
shall not be liable for
interest
on any money received by it except as the
Trustee
may agree in writing with the
Company
.
(f)
Money held in trust by the
Trustee
need not be segregated from other funds except to the extent required by law.
(g)
The
Trustee
may refuse to perform any duty
or
exercise any right
or
power
or
extend
or
risk its own funds
or
otherwise
incur
any financial liability unless it receives indemnity reasonably satisfactory to it against any loss, liability
or
expense which might be incurred by it.
(h)
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, and the provisions of this Article 7 shall apply to the Trustee in its role as Registrar, Paying Agent and Custodian.
SECTION 7.02.
Rights of
Trustee
.
(a)
The
Trustee
may conclusively rely on and shall be protected in acting
or
refraining from acting 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
Officer’s Certificate
or
an
Opinion of Counsel
or both
. The
Trustee
shall not be liable for any action it takes
or
omits to take in good faith in reliance on the
Officer’s Certificate
or
Opinion of Counsel
.
(c)
The
Trustee
may act directly
or
indirectly through agents
or
attorneys and shall not be responsible for the misconduct
or
negligence of any agent
or
attorney appointed with due care.
(d)
The
Trustee
shall not be liable for any action it takes
or
omits to take in good faith which it believes to be authorized
or
within its rights
or
powers;
provided, however
,
that the
Trustee
’s conduct does not constitute willful misconduct
or
negligence.
(e)
The
Trustee
may consult with counsel, and the advice
or
opinion of counsel
with respect to legal matters relating to this
Indenture
and the
Notes
shall be full and complete authorization and protection from liability in respect of any action taken, omitted
or
suffered by it hereunder in good faith and in accordance with the advice
or
opinion of such counsel.
(f)
Any request
or
direction of the
Company
mentioned herein shall be sufficiently evidenced by a
Company Request
or
Company Order
and any resolution of the
Board of Directors
may be sufficiently evidenced by a
Board Resolution
.
(g)
The
Trustee
shall be under no obligation to exercise any of the rights
or
powers vested in it by this
Indenture
at the request
or
direction of any of the
Holders
pursuant to this
Indenture
, unless such
Holders
shall have offered to the
Trustee
security
or
indemnity satisfactory to the
Trustee
against the costs, expenses and liabilities which might be incurred by it in compliance with such request
or
direction.
(h)
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, direction, consent, order, bond, debenture, note, other evidence of
indebtedness
or
other paper
or
document, but the
Trustee
, in its discretion, may make such further inquiry
or
investigation into such facts
or
matters as it may see fit, and, if the
Trustee
shall determine to make such further inquiry
or
investigation, it shall be entitled to examine the books, records and premises of the
Company
, personally
or
by agent
or
attorney at the sole cost of the
Company
and shall
incur
no liability
or
additional liability of any kind by reason of such inquiry
or
investigation.
(i)
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.
(j)
The
Trustee
shall not be deemed to have notice of any
Default
or
Event of
Default
unless a
Responsible Officer
of the
Trustee
has actual knowledge thereof
or
unless written notice of 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
.
(k)
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;
(l)
The Trustee shall not be required to give a note, bond or surety in respect of the trusts and powers under this Indenture.
(m)
The permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a duty unless so specified herein.
(n)
The
Trustee
may request that the
Company
deliver a certificate setting forth the names of individuals and/
or
titles of officers authorized at such time to take specified actions pursuant to this
Indenture
; and
(o)
Neither the
Trustee
in its individual capacity, nor any of its owners, beneficiaries, agents, officers, directors, employees, affiliates, successors
or
assigns will, in the absence of an express agreement to the contrary, be personally liable for the payment of any amounts required to be paid under the
Notes
or
for the agreements of the
Company
contained herein.
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
its
Affiliates
with the same rights it would have if it were not
Trustee
. Any Paying Agent, Registrar, co-
registrar
or
co-
paying agent
may do the same with like rights. However, the
Trustee
must comply with Section
7.10.
SECTION 7.04.
Trustee
’s Disclaimer
.
The recitals contained herein and in the
Notes
, except the
Trustee
’s certificates of authentication, shall be taken as the statements of the
Company
, and the
Trustee
or
any Authenticating Agent assumes no responsibility for their correctness. The
Trustee
shall 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
Company
’s use
or
application of the proceeds from the
Notes
, and it shall not be responsible for any statement of the
Company
in this
Indenture
or
in any document issued in connection with the sale of the
Notes
or
in the
Notes
other than the
Trustee
’s certificate of authentication
or
the determination as to which beneficial owners are entitled to receive any notices hereunder.
SECTION 7.05.
Notice of Defaults
. If a
Default
occurs, is continuing and is known to the
Trustee
, the
Trustee
shall mail to each
Noteholder
notice of the
Default
within 90
days
after it is known to the
Trustee
, unless such
Default
has been cured
or
waived before the giving of such notice. Except in the case of a
Default
in the payment of
principal
of
or
interest
on any
Note
(
including
payments pursuant to the mandatory redemption provisions of such
Note
, if any), 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 not opposed to the
interest
of the
Noteholder
.
SECTION 7.06.
[Reserved]
.
SECTION 7.07.
Compensation and Indemnity
. The
Company
shall pay to the
Trustee
from time to time such compensation for its services as the
Company
and the
Trustee
shall from time to time agree in writing. The
Trustee
’s compensation shall not be limited by any law on compensation of a
trustee
of an express trust. The
Company
shall reimburse the
Trustee
upon request for all expenses, disbursements and advances incurred
or
made by it,
including
costs of collection, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the
Trustee
’s agents, counsel, accountants and experts.
The
Company
agrees to indemnify and hold harmless the
Trustee
, the respective affiliates of the
Trustee
, any predecessor
Trustee
, and the respective officers, directors, employees, agents (
including
, without limitation each of their counsel), and controlling persons of the
Trustee
, and each such
affiliate
(each, an “
Indemnified Party
”) from and against any and all claims, actions and suits whether groundless
or
otherwise, and from and against any and all liabilities, losses, damages and costs and expenses (
including
, without limitation, the reasonable fees and disbursements of counsel and with respect to the
Trustee
, reasonably allocated costs and expenses of in-house counsel and legal staff) of every nature and character arising out of
or
in connection with any actual
or
threatened claim, litigation, investigation
or
proceeding relating to this Indenture
or
the transactions contemplated hereby (other than any such actions
or
expenses resulting, as determined by a final order of a court of competent jurisdiction, from the gross negligence
or
willful misconduct of the
Indemnified Party
seeking indemnification hereunder), in each case
including
, without limitation, the reasonable fees and disbursements of counsel and allocated costs of in-house counsel and legal staff incurred in connection with any such claim investigation, litigation
or
other proceeding whether
or
not such
Indemnified Party
is a party thereto, and the
Company
agrees to reimburse each
Indemnified Party
, upon demand, for all out-of-pocket costs and expenses (
including
, without limitation, the reasonable fees and disbursements of counsel and with respect to the
Trustee
, reasonably allocated costs and expenses of in-house counsel and legal staff) incurred in connection with any of the foregoing. In litigation,
or
the preparation therefor, the
Indemnified Parties
shall each be entitled to select their own counsel and, in addition to the foregoing indemnity, the
Company
agrees to pay promptly the reasonable fees and expenses of such counsel. If, and to the extent that the
obligations
of the
Company
under this Section
7.07
are unenforceable for any reason, the
Company
hereby agrees to make the maximum contribution to the payment in satisfaction of such
obligations
which is permissible under applicable law.
The
Company
shall not make any claim against any
Indemnified Party
for any special, indirect
or
consequential damages in respect of any breach
or
wrongful conduct (whether the claim therefor is based in contract, tort
or
duty imposed by law) in connection herewith, arising out of
or
in any way related to the transactions contemplated hereby,
or
any act, omission
or
event occurring in connection herewith, and hereby waives, releases and agrees not to sue upon any such claim for any such damages, whether
or
not accrued and whether
or
not known
or
suspected to exist in the
Company
's favor.
The covenants contained in this Section
7.07
shall survive payment
or
satisfaction in full of all other of the
Obligations
under this
Indenture
.
To secure the
Company
’s payment
obligations
in this Section, the
Trustee
shall have a
lien
on all money
or
property held
or
collected by the
Trustee
other than money
or
property held in trust to pay
principal
of and
interest
on particular
Notes
.
The
Company
’s payment
obligations
pursuant to this Section shall survive the discharge of this
Indenture
and the resignation
or
removal of the
Trustee
. When the
Trustee
incurs expenses after the occurrence of a
Default
specified in Section
6.01(7)
or
(8)
with respect to the
Company
, the expenses,
including
the reasonable charges and expenses of its counsel, are intended to constitute expenses of administration under the
Bankruptcy Code
.
SECTION 7.08.
Replacement of
Trustee
.
The
Trustee
may resign at any time by so notifying the
Company
, the
Paying Agent
(if other than the Trustee)
and the
Holders
. The
Holders
of a majority in
principal
amount of the
Notes
at the time outstanding may remove the
Trustee
by so notifying the
Trustee
and the
Company
in writing and may appoint a successor
Trustee
. The
Company
shall remove the
Trustee
if:
(1)
the
Trustee
fails to comply with Section
7.10
;
(2)
the
Trustee
is adjudged bankrupt
or
insolvent;
(3)
a receiver
or
other public
officer
takes charge of the
Trustee
or
its property;
or
(4)
the
Trustee
otherwise becomes incapable of acting.
No resignation
or
removal of the
Trustee
shall be effective until a successor
Trustee
has been appointed. The
Company
may appoint a temporary
trustee
until the appointment of such successor
Trustee
. If the
Trustee
resigns, is removed by the
Company
or
by the
Holders
of a majority in
principal
amount of the
Notes
and such
Holders
do not reasonably promptly appoint a successor
Trustee
,
or
if a vacancy exists in the office of
Trustee
for any reason (the
Trustee
in such event being referred to herein as the retiring
Trustee), the
Company
shall promptly appoint a successor
Trustee
.
A successor
Trustee
shall deliver a written acceptance of its appointment to the retiring
Trustee
and to the
Company
. Thereupon the resignation
or
removal of the retiring
Trustee
shall become effective, and the successor
Trustee
shall have all the rights, powers and duties of the
Trustee
under this
Indenture
. The successor
Trustee
shall mail a notice of its succession to
Noteholders
. The retiring
Trustee
shall promptly transfer all property held by it as
Trustee
to the successor
Trustee
upon the repayment of all the retiring
Trustee
’s fees and expenses then due and payable and, subject to the
lien
provided for in Section
7.07.
If a successor
Trustee
does not take office within 60
days
after the retiring
Trustee
resigns
or
is removed, the retiring
Trustee
, at the
Company
’s expense,
or
the
Holders
of 10% in
principal
amount of the
Notes
may petition any court of competent jurisdiction for the appointment of a successor
Trustee
.
If the
Trustee
fails to comply with Section
7.10
, any
Noteholder
may petition any court of competent jurisdiction for the removal of the
Trustee
and the appointment of a successor
Trustee
.
Notwithstanding the replacement of the
Trustee
pursuant to this Section, the
Company
’s
obligations
under Section
7.07
shall continue for the benefit of the retiring
Trustee
.
SECTION 7.09.
Successor
Trustee
by Merger
. If the
Trustee
consolidates with, merges
or
converts into,
or
transfers all
or
substantially all its corporate trust business
or
assets to, another corporation
or
banking association, the resulting, surviving
or
transferee corporation without any further act shall be the successor
Trustee
.
In case at the time such successor
or
successors by merger, conversion
or
consolidation to the
Trustee
shall succeed to the trusts created by this
Indenture
any of the
Notes
shall have been authenticated but not delivered, any such successor to the
Trustee
may adopt the certificate of authentication of any predecessor
trustee
, and deliver such
Notes
so authenticated; and in case at that time any of the
Notes
shall not have been authenticated, any successor to the
Trustee
may authenticate such
Notes
either in the name of any predecessor hereunder
or
in the name of the successor to the
Trustee
; and in all such cases such certificates shall have the full force which it is anywhere in the
Notes
or
in this
Indenture
provided that the certificate of the
Trustee
shall have.
SECTION 7.10.
Eligibility; Disqualification
.
The
Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition.
SECTION 7.11.
Trustee’s Application for Instructions from the
Company
. Any application by the
Trustee
for written instructions from the
Company
may, at the option of the
Trustee
, set forth in writing any action proposed to be taken
or
omitted by the
Trustee
under this
Indenture
and the date on and/
or
after which such action shall be taken
or
such omission shall be effective. The
Trustee
shall not be liable for any action taken by,
or
omission of, the
Trustee
in accordance with a proposal included in such application on
or
after the date specified in such application (which date shall not be less than three
Business Days
after the date any
officer
of the
Company
actually receives such application, unless any such
officer
shall have consented in writing to any earlier date) unless prior to taking any such action (
or
the effective date in the case of an omission), the
Trustee
shall have received written instructions in response to such application specifying the action to be taken
or
omitted.
SECTION 7.12.
Trustee in Other Capacities; Registrar and Paying Agent
.
References to the Trustee in
Sections 7.01, 7.02, 7.03, 7.04, 7.05, 7.06, 7.07, 7.08 and 7.10 shall be understood to include the Trustee when acting in its other capacities under this Indenture, including as Paying Agent, Registrar and Custodian. The privileges, rights, indemnities, immunities and exculpatory provisions contained in this Indenture shall apply to the Trustee, whether it is acting under this Indenture or the other documents executed in connection herewith.
Discharge of
Indenture
; Defeasance
SECTION 8.01.
Discharge of Liability on
Notes
; Defeasance
.
(a)
When (1) the
Company
delivers to the
Trustee
all outstanding
Notes
(other than
Notes
replaced pursuant to Section
2.07)
for cancellation
or
(2) all outstanding
Notes
have become due and payable,
or
will become due and payable within one year, in either case, whether at maturity
or
on a redemption date as a result of the mailing
or
delivery in accordance with the applicable procedures of
DTC
of a notice of redemption pursuant to Article
3
hereof
or
otherwise and the
Company
or
a
Subsidiary
Guarantor
irrevocably deposits with the
Trustee
funds
or
U.S. Government Obligations
sufficient to pay at maturity
or
upon redemption all outstanding
Notes
,
including
interest
thereon to maturity
or
such redemption date (other than
Notes
replaced pursuant to Section
2.07)
, and if in either case the
Company
pays all other sums payable hereunder by the
Company
, then this
Indenture
shall, subject to Section
8.01(c)
, cease to be of further effect with respect to all the outstanding
Notes
. The
Trustee
shall join in the execution of a document prepared by the
Company
acknowledging satisfaction and discharge of this
Indenture
on demand of the
Company
accompanied by an
Officer’s Certificate
and an
Opinion of Counsel
and at the cost and expense of the
Company
.
(b)
Subject to Sections
8.01(c)
and 8.02, the
Company
at any time may terminate (1) all its
obligations
under the
Notes
and this
Indenture
(“
legal defeasance option
”)
or
(2) its
obligations
under Sections
4.02
, 4.03, 4.04 and 4.05 and the operation of Sections
6.01(4)
, 6.01(5), 6.01(6), 6.01(7), 6.01(8), 6.01(9) and 6.01(10) (but, in the case of Sections
6.01(7)
and
(8)
, with respect only to
Significant Subsidiaries
) (“
covenant defeasance option
”). The
Company
may exercise its
legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option.
If the
Company
exercises its
legal defeasance option
, (i) payment of the
Notes
may not be accelerated because of an Event of
Default
with respect thereto and (ii) the
Note
Guarantees
in effect at such time of exercise will terminate. If the
Company
exercises its covenant defeasance option, payment of the
Notes
may not be accelerated because of an Event of
Default
specified in Sections
6.01(4)
, 6.01(5), 6.01(6), 6.01(7), 6.01(8), 6.01(9) and 6.01(10) (but, in the case of Sections
6.01(7)
and
(8)
, with respect only to
Significant Subsidiaries
).
Upon satisfaction of the conditions set forth herein and upon request of the
Company
, the
Trustee
shall acknowledge in writing the discharge of those
obligations
that the
Company
terminates.
(c)
Notwithstanding clauses
(a)
and
(b)
above, the
Company
’s
obligations
in Sections
2.03
, 2.04, 2.05, 2.06, 2.07, 2.08, 7.07 and 7.08 and in this Article
8
shall survive until the
Notes
have been paid in full. Thereafter, the
Company
’s
obligations
in Sections
7.07
and 8.05 shall survive.
SECTION 8.02.
Conditions to Defeasance
.
The
Company
may exercise its
legal defeasance option
or its covenant defeasance option
only if:
(1)
the
Company
or
a
Guarantor
irrevocably deposits in trust with the
Trustee
money
or
U.S. Government Obligations
for the payment of
principal
of and
interest
on the
Notes
to redemption
or
maturity, as the case may be;
(2)
the
Company
delivers to the
Trustee
a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of
principal
and
interest
, when due and without reinvestment, on the deposited
U.S. Government Obligations
, plus any deposited money without
investment
, will provide cash at such times and in such amounts as will be sufficient to pay
principal
and
interest
when due on all the
Notes
to maturity
or
redemption, as the case may be;
(3)
123
days
pass after the deposit is made and during the 123-day period no
Default
specified in Sections
6.01(7)
or
(8)
with respect to the
Company
occurs which is continuing at the end of the period;
(4)
the deposit does not constitute a
default
under any other agreement binding on the
Company
;
(5)
the
Company
delivers to the
Trustee
an
Opinion of Counsel
to the effect that the trust resulting from the deposit does not constitute,
or
is qualified as, a regulated
investment
company
under the
Investment
Company Act of 1940
, as amended;
(6)
in the case of the
legal defeasance option
, the
Company
shall have delivered to the
Trustee
an
Opinion of Counsel
stating that (A) the
Company
has received from,
or
there has been published by, the
Internal Revenue Service
a ruling,
or
(B) since the date of this
Indenture
there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such
Opinion of Counsel
of recognized standing that is independent of the Company
shall confirm that the
Noteholders
and beneficial owners
will not recognize income, gain
or
loss for Federal income tax purposes as a result of such deposit and defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred;
(7)
in the case of the covenant defeasance option, the
Company
shall have delivered to the
Trustee
an
Opinion of Counsel
of recognized standing that is independent of the Company
to the effect that the
Noteholders
and beneficial owners
will not recognize income, gain
or
loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred;
(8)
the
Company
delivers to the
Trustee
an
Opinion of Counsel
of recognized standing that is independent of the Company
in the jurisdiction
or
organization of the
Company
(if other than the United States) to the effect that
Holders and beneficial owners
will not recognize income, gain
or
loss income tax purposes of such jurisdiction as a result of such deposit and defeasance, and will be subject to income tax of such jurisdiction on the same amounts, and in the same manner and at the same times as would have been the case if such deposit and defeasance, had not occurred; and
(9)
the
Company
delivers to the
Trustee
an
Officer’s Certificate
and an
Opinion of Counsel
, each stating that all conditions precedent to the defeasance and discharge of the
Notes
as contemplated by this Article
8
have been complied with.
Before
or
after a deposit, the
Company
may make arrangements satisfactory to the
Trustee
for the redemption of
Notes
at a future date in accordance with Article
3.
SECTION 8.03.
Application of Trust Money
. Subject to Section
8.04
, the
Trustee
shall hold in trust money
or
U.S. Government Obligations
(
including
proceeds thereof) deposited with it pursuant to this Article
8.
It shall apply the deposited money and the money from
U.S. Government Obligations
through the
Paying Agent
and in accordance with this
Indenture
to the payment of
principal
of and
interest
on the
Notes
.
SECTION 8.04.
Repayment to
Company
. Each of the
Trustee
and the
Paying Agent
shall pay to the
Company
upon written request any excess money,
U.S. Government Obligations
or
securities held by them at any time.
Subject to any applicable abandoned property law, the
Trustee
and the
Paying Agent
shall pay to the
Company
upon written request any money held by them for the payment of
principal
or
interest
with respect to the
Notes
that remains unclaimed for two years, and, thereafter,
Noteholders
entitled to the money must look to the
Company
for payment as general creditors, unless an applicable abandoned property law designates another
person
and the
Trustee
and the
Paying Agent
shall have no further liability to the
Holders
with respect to such money for that period commencing after the return thereof.
SECTION 8.05.
Indemnity for Government Obligations
.
The
Company
shall pay and shall indemnify the
Trustee
against any tax, fee
or
other charge imposed on
or
assessed against deposited
U.S. Government Obligations
or
the
principal
and
interest
received on such
U.S. Government Obligations
.
SECTION 8.06.
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
Company
’s
obligations
under this
Indenture
, and the
Notes
so discharged
or
defeased 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, however
,
that, if the
Company
has made any payment of
interest
on
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
.
Amendments
SECTION 9.01.
Without Consent of
Holders
. The
Company
, the
Guarantors
and the
Trustee
may amend this
Indenture
, the
Notes
or
the
Note
Guarantees
without notice to
or
consent of any
Noteholder
:
(1)
to cure any ambiguity, omission, defect
or
inconsistency;
(2)
to comply with Article
5
;
(3)
to provide for uncertificated
Notes
in addition to
or
in place of certificated
Notes
;
provided,
that the uncertificated
Notes
are issued in registered form for purposes of Section 163(f) of the
Code
;
(4)
to add
Guarantees
with respect to the
Notes
,
including
any
Subsidiary Guarantees
,
or
to secure the
Notes
;
(5)
to add to the covenants of the
Company
or
any of its
Subsidiaries
for the benefit of the
Holders
or
to surrender any right
or
power herein conferred upon the
Company
or
any of its
Subsidiaries
;
(6)
to make any change that does not adversely affect the rights of any
Noteholder
;
(7)
to release a
Guarantor
from its
obligations
under its
Guarantee
or
this
Indenture
in accordance with the applicable provisions of this
Indenture
;
(8)
to conform the text of this
Indenture
, the
Notes
or
the
Note
Guarantees
to any provision in the
Offering Memorandum
under the heading “Description of
notes
”;
or
(9)
to make any amendment to the provisions of this
Indenture
relating to the transfer and legending of
Notes
;
provided, however
,
that (a) compliance with this
Indenture
as so amended would not result in
Notes
being transferred in violation of the
Securities Act
or
any other applicable securities law and (b) such amendment does not materially and adversely affect the rights of
Holders
to transfer
Notes
.
After an amendment under this Section becomes effective, the
Company
shall mail to
Noteholders
a notice briefly describing such amendment. The failure to give such notice to all
Noteholders
,
or
any defect therein, shall not impair
or
affect the validity of an amendment under this Section.
SECTION 9.02.
With Consent of
Holders
.
The
Company
, the
Guarantors
and the
Trustee
may amend this
Indenture
, the
Notes
or
the
Note
Guarantees
with the written consent of the
Holders
of at least a majority in
principal
amount of the
Notes
then outstanding (
including
consents obtained in connection with a tender
offer
or
exchange
offer
for the
Notes
) and any past
default
or
compliance with any provisions may also be waived with the consent of the
Holders
of at least a majority in
principal
amount of the
Notes
then outstanding (
including
consents obtained in connection with a tender
offer
or
exchange
offer
for the
Notes
). However, without the consent of each
Noteholder
affected thereby, an amendment
or
waiver may not, among other things:
(1)
reduce the amount of
Notes
whose
Holders
must consent to an amendment;
(2)
reduce the rate of
or
extend the time for payment of
interest
on any
Note
;
(3)
reduce the
principal
of
or
change the
Stated Maturity
of any
Note
;
(4)
reduce the amount payable upon the redemption of any
Note
or
change the time at which any
Note
may be redeemed as described in Article
3
hereto
or
paragraph 6 of the
Notes
;
provided
, that any amendment to the notice requirements may be made with the consent of the Holders of a majority in aggregate principal amount of then outstanding Notes prior to giving of any notice;
(5)
make any
Note
payable in money other than that stated in the
Note
;
(6)
make any changes in the ranking
or
priority of any
Note
that would adversely affect the
Noteholders
;
(7)
make any change in Section
6.04
or
6.07
or
this second sentence of this Section
9.02
;
(8)
impair the right of any
holder
of the
Notes
to receive payment of
principal
of and
interest
on such
holder
’s
Notes
on
or
after the due dates therefor
or
to institute suit for the enforcement of any payment on
or
with respect to such
holder
’s
Notes
;
or
(9)
release any
Guarantor
from its
Guarantee
under this
Indenture
except in accordance with this
Indenture
.
It shall not be necessary for the consent of the
Holders
under this Section to approve the particular form of any proposed amendment, but it shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section
9.02
becomes effective, the
Company
shall mail to
Noteholders
a notice briefly describing such amendment. The failure to give such notice to all
Noteholders
,
or
any defect therein, shall not impair
or
affect the validity of an amendment under this Section
9.02.
SECTION 9.03.
Revocation and Effect of Consents and Waivers
. A consent to an amendment
or
a waiver by a
Holder
of a
Note
shall bind the
Holder
and every subsequent
Holder
of that
Note
or
portion of the
Note
that evidences the same debt as the consenting
Holder
’s Note, even if notation of the consent
or
waiver is not made on the
Note
. However, any such
Holder
or
subsequent
Holder
may revoke the consent
or
waiver as to such
Holder
’s Note
or
portion of the
Note
if the
Trustee
receives the written notice of revocation before the date the amendment
or
waiver becomes effective. After an amendment
or
waiver becomes effective, it shall bind every
Noteholder
. An amendment
or
waiver becomes effective upon
(i)
receipt by the
Company
or
the
Trustee
of consents by the
Holders
of the requisite
principal
amount of securities,
(ii)
satisfaction of conditions to effectiveness as set forth in this
Indenture
and any
indenture
supplemental hereto containing such amendment
or
waiver and
(iii)
the execution of such amendment
or
waiver by the
Trustee
.
The
C
o
mpany
may, but shall not be obligated to, fix a record date for the purpose of determining the
Noteholders
entitled to give their consent
or
take any other action described above
or
required
or
permitted to be taken pursuant to this
Indenture
. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those
Persons
who were
Noteholders
at such record date (
or
their duly designated proxies), and only those
Persons
, shall be entitled to give such consent
or
to revoke any consent previously given
or
to take any such action, whether
or
not such
Persons
continue to be
Holders
after such record date. No such consent shall be valid
or
effective for more than 120
days
after such record date.
SECTION 9.04.
Notation on
or
Exchange of
Notes
. If an amendment, supplement
or
waiver changes the terms of a
Note
, the
Trustee
or
the
Company
may require the
Holder
of the
Note
to deliver it to the
Trustee
. The
Trustee
may place an appropriate notation on
the
Note
regarding the changed terms and return it to the
Holder
. 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
to issue a new
Note
shall not affect the validity of such amendment.
SECTION 9.05.
Trustee To Sign Amendments
. The
Trustee
shall sign any amendment, supplement
or
waiver to this
Indenture
authorized pursuant to this Article 9 if the amendment does not adversely affect the rights, duties, liabilities
or
immunities of the
Trustee
. If it does, the
Trustee
may but need not sign it. In signing such amendment the
Trustee
shall be entitled to receive indemnity reasonably satisfactory to it and to receive, and (subject to Section
7.01)
shall be fully protected in relying upon, an
Officer’s Certificate
and an
Opinion of Counsel
stating that such amendment, supplement
or
waiver is authorized
or
permitted by this
Indenture
.
SECTION 9.06.
Payment for Consent
.
Neither the
Company
nor any
Affiliate
of the
Company
shall, directly
or
indirectly, pay
or
cause to be paid any consideration, whether by way of
interest
, fee
or
otherwise, to any
Holder
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 all
Holders
and is paid to all
Holders
that so consent, waive
or
agree to amend in the time frame set forth in solicitation documents relating to such consent, waiver
or
agreement.
SECTION 10.01.
Guarantee
.
(a)
Subject to this Article
10
, each of the
Guarantors
shall, jointly and severally, unconditionally
guarantee
to each
Holder
of a
Note
authenticated and delivered by the
Trustee
and to the
Trustee
and its successors and assigns, irrespective of the validity and enforceability of this
Indenture
, the
Notes
or
the
obligations
of the
Company
hereunder
or
thereunder, that:
(1)
the
principal
of, premium and
interest
on the
Notes
will be promptly paid in full when due, whether at maturity, by acceleration, redemption
or
otherwise, 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
Guarantors
will be jointly and severally obligated to pay the same immediately. Each
Guarantor
agrees that this is a
guarantee
of payment and not a
guarantee
of collection.
(b)
The
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
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
Guarantors
or
any
custodian
,
trustee
, liquidator
or
other similar official acting in relation to either the
Company
or
the
Guarantors
, any amount paid by either to the
Trustee
or
such
Holder
, this
Note
Guarantee
, to the extent theretofore discharged, will be reinstated in full force and effect.
(d)
Each
Guarantor
agrees that it will not be entitled to any right of subrogation in relation to the
Holders
in respect of any
obligations
guaranteed hereby until payment in full of all
obligations
guaranteed hereby. Each
Guarantor
further agrees that, as between the
Guarantors
, on the one hand, and the
Holders
and the
Trustee
, on the other hand, (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
Guarantors
for the purpose of this
Note
Guarantee
. The
Guarantors
will have the right to seek contribution from any non-paying
Guarantor
so long as the exercise of such right does not impair the rights of the
Holders
under this
Note
Guarantee
.
SECTION 10.02.
Limitation on
Guarantor
Liability
. Each
Guarantor
, and by its acceptance of
Notes
, each
Holder
, hereby confirms that it is the intention of all such parties that this
Note
Guarantee
of such
Guarantor
not constitute a fraudulent transfer
or
conveyance for purposes of
Bankruptcy Code
, the
Uniform Fraudulent Conveyance Act
, the
Uniform Fraudulent Transfer Act
or
any similar federal
or
state law to the extent applicable to any
Note
Guarantee
. To effectuate the foregoing intention, the
Trustee
, the
Holders
and the
Guarantors
hereby irrevocably agree that the
Obligations
of such
Guarantor
will be limited to the maximum amount that
will
,
after giving effect
to such
maximum amount and all other contingent and fixed liabilities of such
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
Guarantor
in respect of the
Obligations
of such other
Guarantor
under this Article
10
, result in the
Obligations
of such
Guarantor
under its
Note
Guarantee
not constituting a fraudulent transfer
or
conveyance.
SECTION 10.03.
Delivery of
Note
Guarantee
.
The delivery of any
Note
by the
Trustee
, after the authentication thereof hereunder, will constitute due delivery of the
Note
Guarantee
set forth in this
Indenture
or
any supplemental
indenture
on behalf of the
Guarantors
. Neither the
Company
nor any
Guarantor
shall be required to make a notation on the
Notes
to reflect any
Note
Guarantee
or
any such release, termination
or
discharge thereof.
SECTION 10.04.
Guarantors May Consolidate, etc., on Certain Terms
.
Except as otherwise provided in Section 10.05 hereof, no
Person
that becomes a
Guarantor
may at any time on
or
after the date hereof sell
or
otherwise dispose of all
or
substantially all of its assets to,
or
consolidate with
or
merge with
or
into (whether
or
not such
Guarantor
is the surviving
Person
) another
Person
, other than the
Company
or
another
Guarantor
, unless
immediately
after giving effect
to such
transaction, no
Default
or
Event of
Default
exists.
Except as set forth in Articles
4
and 5 hereof, and notwithstanding this Section 10.04, nothing contained in this
Indenture
or
in any of the
Notes
will prevent any consolidation
or
merger of a
Guarantor
with
or
into the
Company
or
another
Guarantor
,
or
will prevent any sale
or
conveyance of the property of a
Guarantor
as an entirety
or
substantially as an entirety to the
Company
or
another
Guarantor
.
The
Trustee
, subject to the provisions of Section 11.03 hereof, will receive an
Officer’s Certificate
and an
Opinion of Counsel
as conclusive evidence that any such consolidation, merger, sale
or
conveyance, and any such assumption of
Obligations
, comply with the provisions of this Section 10.04 hereof. Such certificate and opinion will comply with the provisions of Section 11.04.
SECTION 10.05.
Releases
(a)
In the event of any sale
or
other
disposition
of all
or
substantially all of the assets of any
Guarantor
, by way of merger, consolidation
or
otherwise,
or
a sale
or
other
disposition
of all of the
Capital Stock
of any
Guarantor
, in each case to a
Person
that is not (either before
or
after giving effect
to such
transactions) the
Company
or
a
Subsidiary
of the
Company
, then such
Guarantor
(in the event of a sale
or
other
disposition
, by way of merger, consolidation
or
otherwise, of all of the
Capital Stock
of such
Guarantor
)
or
the corporation acquiring the property (in the event of a sale
or
other
disposition
of all
or
substantially all of the assets of such
Guarantor
) will be released and relieved of any
obligations
under its
Note
Guarantee
. Upon delivery by the
Company
to the
Trustee
of an
Officer’s Certificate
and an
Opinion of Counsel
to the effect that such sale
or
other
disposition
was made by the
Company
in accordance with the provisions of this
Indenture
, the
Trustee
will execute any documents reasonably required in order to evidence the release of any
Guarantor
from its
obligations
under its
Note
Guarantee
.
(b)
In the event of the release or discharge of a guarantee by a Guarantor of Indebtedness or such other guarantee that resulted in the creation of such Guarantee, except a discharge or release by or as a result of payment under such guarantee, such Guarantor will be released and relieved of any
obligations
under its
Note Guarantee
.
(c)
If the
legal defeasance option
is exercised
or
this
Indenture
is otherwise discharged in accordance with Article
8
hereof, each
Guarantor
will be released and relieved of any
obligations
under its
Note
Guarantee
.
Any
Guarantor
not released from its
obligations
under its
Note
Guarantee
as provided in this Section 10.05 will remain liable for the full amount of
principal
of and
interest
and premium, if any, on the
Notes
and for the other
obligations
of any
Guarantor
under this
Indenture
as provided in this Article
10.
SECTION 10.06.
Addition of Guarantors.
If the Company is required to cause a Subsidiary to become a Guarantor pursuant to Section 4.06 or 10.03, the Company will cause such Subsidiary to (1) reasonably promptly execute and deliver to the Trustee a supplemental indenture substantially in the form of Exhibit 1 hereto pursuant to which such Subsidiary will unconditionally Guarantee all of the Company’s Obligations under the Notes on the terms set forth in this Indenture and (2) deliver to the Trustee an Opinion of Counsel reasonably satisfactory to the Trustee that such supplemental indenture has been duly executed and delivered by such Subsidiary.
ARTICLE 11
Miscellaneous
SECTION 11.01.
Notices
.
Unless otherwise specified herein, any notice
or
communication given pursuant to this
Indenture
shall be in writing and shall be given
or
made (and shall be deemed to have been duly given
or
made upon receipt) in
person
or
mailed by first-class mail by a courier guaranteeing overnight delivery, sent to a party and its legal counsel at the address set forth below for such party and its legal counsel hereto, with a copy of such communication being sent via email to the email addresses set forth below for such party and its legal counsel.
Compass Minerals International, Inc.
9900 West 109th Street
Suite 100
Overland Park, KS 66210
Attention: Chief Financial Officer
with a copy to:
885 Third Avenue
New York, NY 10022
Attention:
Ian Schuman, Esq.
Email: ian.schuman@lw.com
Global Corporate Trust Services
U.S. Bank National Association
One U.S. Bank Plaza
St. Louis, MO 63101
Attention:
Rebekah A. Foltz
Email: rebekah.foltz@usbank.com
with a copy to:
Stinson Leonard Street LLP
150 South Fifth Street, Suite 2300
Minneapolis, MN 55402
Attention:
William P. Laramy
Email: william.laramy@stinsonleonard.com
The
Company
or
the
Trustee
by notice to the other may designate additional
or
different addresses for subsequent notices
or
communications.
Any notice
or
communication mailed to a
Noteholder
shall be mailed to the
Noteholder
at the
Noteholder
’s address as it appears on the registration books of the
Registrar
and shall be sufficiently given if so mailed within the time prescribed.
Failure to mail a notice
or
communication to a
Noteholder
or
any defect in it shall not affect its sufficiency with respect to other
Noteholders
.
SECTION 11.02.
Communication by
Holders
with Other Holders
.
Noteholders
may communicate with other
Noteholders
with respect to their rights under this
Indenture
or
the
Notes
.
SECTION 11.03.
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
, the
Company
shall furnish to the
Trustee
, if requested by the
Trustee
:
(1)
an
Officer’s Certificate
in form and substance reasonably satisfactory to the
Trustee
stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this
Indenture
relating to the proposed action have been complied with; and
(2)
an
Opinion of Counsel
in form and substance reasonably satisfactory to the
Trustee
stating that, in the opinion of such counsel, all such conditions precedent, if any, provided for in this
Indenture
relating to the proposed action have been complied with.
SECTION 11.04.
Statements Required in Certificate
or
Opinion
. Each certificate
or
opinion with respect to compliance with a covenant
or
condition provided for in this
Indenture
shall include:
(1)
a statement that the individual 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 individual, he has made such examination
or
investigation as is necessary to enable him to express an informed opinion as to whether
or
not such covenant
or
condition has been complied with; and
(4)
a statement as to whether
or
not, in the opinion of such individual, such covenant
or
condition has been complied with;
provided, however
,
that with respect to matters of fact, an
Opinion of Counsel
may rely on an
Officer’s Certificate
or
certificates of public officials.
SECTION 11.05.
When Notes Disregarded
. In determining whether the
Holders
of the required
principal
amount of
Notes
have concurred in any direction, waiver
or
consent,
Notes
owned by the
Company
or
by any
Person
directly
or
indirectly controlling
or
controlled by
or
under direct
or
indirect common
control
with the
Company
shall be disregarded and deemed not to be outstanding, except that, for the purpose of determining whether the
Trustee
shall be protected in relying on any such direction, waiver
or
consent, only
Notes
which a
Responsible Officer
of the
Trustee
actually knows are so owned shall be so disregarded. Also, subject to the foregoing, only
Notes
outstanding at the time shall be considered in any such determination.
SECTION 11.06.
Rules by
Trustee
,
Paying Agent and Registrar
.
The
Trustee
may make reasonable rules for action by
or
a meeting of
Noteholders
. The
Registrar
and the
Paying Agent
may make reasonable rules for their functions.
SECTION 11.07.
Legal Holidays
. If a payment date or redemption date is a
Legal Holiday
, payment shall be made on the next succeeding day that is not a
Legal Holiday
, and no
interest
shall accrue on any amount that would have been otherwise payable on such payment date or redemption date if it were not a
legal holiday
for the intervening period. If a regular record date is a
Legal Holiday
, the record date shall not be affected.
SECTION 11.08.
Governing Law, Submission to Jurisdiction
.
This
Indenture
and the
Notes
shall be governed by, and construed in accordance with, the laws of the
State of New York
.
The
Company
submits to the non-exclusive jurisdiction of the courts of the State of New York and the courts of the United States of America, in each case located in the
Borough of Manhattan, New York, New York
over any suit, action
or
proceeding arising under
or
in connection with this
Indenture
or
the transactions contemplated hereby
or
the
Notes
or
the
Note
Guarantees
. The
Company
waives, to the fullest extent permitted by applicable law, any objection that it may have to the venue of any suit, action
or
proceeding arising under
or
in connection with this
Indenture
or
the transactions contemplated hereby
or
the
Notes
or
the
Note
Guarantees
in the courts of the State of New York
or
the courts of the United States of America, in each case located in the Borough of Manhattan, New York, New York,
or
that such suit,
action
or
proceeding brought in the courts of the State of New York
or
the courts of the United States of America, in each case located in the Borough of Manhattan, New York, New York, was brought in an inconvenient court and agrees not to plead
or
claim the same.
SECTION 11.09.
No Recourse Against Others
. No director,
officer
, employee
or
stockholder, as such, of the
Company or
any of its
Subsidiaries
shall have any liability for any
obligations
of the
Company
, any of its
Subsidiaries
or
any
Guarantor
under the
Notes
or
this
Indenture
or
for any claim based on, in respect of
or
by reason of such
obligations
or
their creation. By accepting a
Note
, each
Noteholder
shall waive and release all such liability. The waiver and release shall be part of the consideration for the issue of the
Notes
.
SECTION 11.10.
Successors
.
All agreements of the
Company
in this
Indenture
and the
Notes
shall bind its successors. All agreements of the
Trustee
in this
Indenture
shall bind its successors.
SECTION 11.11.
Multiple Originals
.
The parties may sign any number of copies of this
Indenture
. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this
Indenture
.
SECTION 11.12.
Table of Contents; Headings
.
The table of contents, cross-reference sheet and headings of the Articles and Sections of this
Indenture
have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify
or
restrict any of the terms
or
provisions hereof.
SECTION 11.13.
Waiver of Jury Trial
. EACH OF THE
COMPANY
AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE
, THE
NOTES
OR
THE TRANSACTION CONTEMPLATED HEREBY.
SECTION 11.14.
Force Majeure
. In no event shall the
Trustee
be responsible
or
liable for any failure
or
delay in the performance of its
obligations
hereunder arising out of
or
caused by, directly
or
indirectly, forces beyond its
control
,
including
, without limitation, strikes, work stoppages, accidents, acts of war
or
terrorism, civil
or
military disturbances, nuclear
or
natural catastrophes
or
acts of God, and interruptions, loss
or
malfunctions of utilities, communications
or
computer (software and hardware) services; it being understood that the
Trustee
shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
IN WITNESS WHEREOF, the parties have caused this
Indenture
to be duly executed as of the date first written above.
|
COMPASS MINERALS INTERNATIONAL, INC.
|
|
|
|
|
By:
|
/s/ James D. Standen
|
|
Name:
|
James D. Standen
|
|
Title:
|
Treasurer
|
|
|
|
|
CAREY SALT COMPANY
|
|
|
|
|
By:
|
/s/ James D. Standen
|
|
Name:
|
James D. Standen
|
|
Title:
|
Treasurer
|
|
|
|
|
GREAT SALT LAKE HOLDINGS LLC
|
|
|
|
|
By:
|
/s/ James D. Standen
|
|
Name:
|
James D. Standen
|
|
Title:
|
Treasurer
|
|
|
|
|
GREAT SALT LAKE MINERALS CORPORATION
|
|
|
|
|
By:
|
/s/ James D. Standen
|
|
Name:
|
James D. Standen
|
|
Title:
|
Treasurer
|
|
|
|
|
GSL CORPORATION
|
|
|
|
|
By:
|
/s/ James D. Standen
|
|
Name:
|
James D. Standen
|
|
Title:
|
Treasurer
|
[Compass Minerals International, Inc. Indenture]
|
NAMSCO INC.
|
|
|
|
|
By:
|
/s/ James D. Standen
|
|
Name:
|
James D. Standen
|
|
Title:
|
Treasurer
|
|
|
|
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NORTH AMERICAN SALT COMPANY
|
|
|
|
|
By:
|
/s/ James D. Standen
|
|
Name:
|
James D. Standen
|
|
Title:
|
Treasurer
|
|
|
|
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CLYMAN BAY RESOURCES, INC.
|
|
|
|
|
By:
|
/s/ James D. Standen
|
|
Name:
|
James D. Standen
|
|
Title:
|
Treasurer
|
|
|
|
|
COMPASS MINERALS USA INC.
|
|
|
|
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By:
|
/s/ James D. Standen
|
|
Name:
|
James D. Standen
|
|
Title:
|
Treasurer
|
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DOVE CREEK GRAZING, LLC
|
|
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By:
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/s/ Keith Espelien
|
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Name:
|
Keith Espelien
|
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Title:
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Manager
|
[Compass Minerals International, Inc. Indenture]
|
SOLAR RESOURCES, INC.
|
|
|
|
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By:
|
/s/ James D. Standen
|
|
Name:
|
James D. Standen
|
|
Title:
|
Treasurer
|
[Compass Minerals International, Inc. Indenture]
IN WITNESS WHEREOF, the parties have caused this
Indenture
to be duly executed as of the date first written above.
|
U.S. BANK NATIONAL ASSOCIATION
|
|
|
|
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By:
|
/s/ Rebekah A. Foltz
|
|
Name:
|
Rebekah A. Foltz
|
|
Title:
|
Vice President
|
[Compass Minerals International, Inc. Indenture]
RULE
144A/REGULATION S/IAI APPENDIX
PROVISIONS
RELATING TO THE NOTES
1.1.
Definitions.
For the purposes of this
Appendix
the following terms shall have the meanings indicated below:
“
Definitive Note
” means a certificated
Note
bearing, if required, the appropriate restricted securities legend set forth in Section
2.3(d)
.
“
Depository
” means The Depository Trust Company, its nominees and their respective successors.
“
Distribution Compliance Period
”, with respect to any
Notes
, means the period of 40 consecutive
days
beginning on and
including
the later of (i) the day on which such
Notes
are first offered to
Persons
other than distributors (as defined in
Regulation S
under the
Securities Act
) in reliance on
Regulation S
and (ii) the issue date with respect to such
Notes
.
“
IAI
” means an institutional “accredited investor”, as defined in Rule 501(a)(1),
(2)
, (3) and (7) of Regulation D under the
Securities Act
.
“
Initial Purchasers
” means (1) with respect to the
Notes
issued on the
Issue Date
, J.P. Morgan Securities LLC, Goldman, Sachs & Co., Scotia Capital (USA) Inc., U.S. Bancorp Investments, Inc., Lloyds Securities and PNC Capital Markets LLC and (2) with respect to each issuance of
Additional Notes
, the
Persons
purchasing such
Additional Notes
under the related
Purchase Agreement
.
“
Notes
” means the
4.875% Senior
Notes
due
2024
.
“
Notes Custodian
” means the custodian with respect to a Global Note (as appointed by the
Depository
),
or
any successor
Person
thereto and shall initially be the
Trustee
.
“
Purchase Agreement
” means (1) with respect to the
Notes
issued on the
Issue Date
, the
Purchase Agreement
dated June 12, 2014, among the
Company
and the
Initial Purchasers
, and (2) with respect to each issuance of
Additional Notes
, the purchase agreement
or
underwriting agreement among the
Company
and the
Person
(s) purchasing such
Additional Notes
.
“
QIB
” means a “qualified institutional buyer” as defined in Rule 144A.
“
Rule 144A Notes
” means all
Notes
offered and sold to
QIBs
in reliance on Rule 144A.
“
Securities Act
” means the
Securities Act
of 1933
, as amended
.
“
Transfer Restricted Notes
” means
Notes
that bear
or
are required to bear the legend relating to restrictions on transfer relating to the
Securities Act
set forth in Section
2.3(d)
hereto.
Term
|
Defined In Section:
|
|
|
“Agent Members”
|
2.1(b)
|
“Global Notes”
|
2.1(a)
|
“IAI Global Note”
|
2.1(a)
|
“Regulation S”
|
2.1(a)
|
“Regulation S Global Note”
|
2.1(a)
|
“Rule 144A”
|
2.1(a)
|
“Rule 144A Global Note”
|
2.1(a)
|
2.1.
(a)
Form and Dating.
The
Notes
will be offered and sold by the
Company
pursuant to a
Purchase Agreement
. The
Notes
will be resold initially only to (i)
Persons that the Initial Purchasers reasonably believe to be
QIBs
in reliance on
Rule 144A
under the
Securities Act
(“
Rule 144A
”) and (ii)
Persons
other than
U.S. Persons
(as defined in
Regulation S
) in reliance on
Regulation S
under the
Securities Act
(“
Regulation S
”). The
Notes
may thereafter be transferred to, among others,
QIBs
,
IAIs
and purchasers in reliance on
Regulation S
, subject to the restrictions on transfer set forth herein. The
(A)
Notes
initially resold pursuant to
Rule 144A
shall be issued initially in the form of one
or
more permanent global
Notes
in registered, global form (collectively, the “
Rule 144A Global Note
”);
(B)
Notes
initially resold to
IAIs
shall be issued initially in the form of one
or
more permanent global
Notes
in registered, global form (collectively, the “
IAI Global Note
”); and (C) Notes initially resold pursuant to Regulation S shall be issued initially in the form of one or more permanent global Notes in global, fully registered form (collectively, the “Regulation S Global Note”); and in each of cases
(A)
, (B)
and (C)
without
interest
coupons and with the global securities legend and the applicable restricted securities legends set forth in Exhibit 1 hereto, which shall be deposited on behalf of the purchasers of the
Notes
represented thereby with the
Notes Custodian
and registered in the name of the
Depository
or
a nominee of the
Depository
, duly executed by the
Company
and authenticated by the
Trustee
as provided in this
Indenture
.
Beneficial interests in
Regulation S Global Notes
(after the Distribution Compliance Period) or
IAI Global Notes
may be exchanged for interests in
Rule 144A Global Notes
if (1) such exchange occurs in connection with a transfer of
Notes
in compliance with
Rule 144A
and (2) the transferor of the beneficial
interest
in the
Regulation S Global
Note
or
the
IAI Global Note
, as applicable, first delivers to the
Trustee
a written certificate (in a form satisfactory to the
Trustee
) to the effect that the beneficial
interest
in the
Regulation S Global
Note
or
the
IAI Global Note
, as applicable, is being transferred to a
Person
(a) who the transferor reasonably believes to be a
QIB
, (b) purchasing for its own account
or
the account of a
QIB
in a transaction meeting the requirements of
Rule 144A
, and (c) in accordance with all applicable securities laws of the States of the United States and other jurisdictions.
Beneficial interests in Regulation S Global Notes
(after the Distribution Compliance Period)
and Rule 144A Global Notes may be exchanged for an
interest
in
IAI Global Notes
if (1) such exchange occurs in connection with a transfer of the securities in compliance with an exemption under the
Securities Act
and (2) the transferor of the
Regulation S Global
Note
or
Rule 144A Global
Note
, as applicable, first delivers to the
Trustee
a written certificate (substantially in the form of Exhibit 2 hereto) to the effect that (A) the
Regulation S Global
Note
or
Rule 144A Global
Note
, as applicable, is being transferred (a) to an “accredited investor” within the meaning of 501(a)(1),
(2)
, (3) and (7) under the
Securities Act
that is an institutional investor acquiring the securities for its own account
or
for the account of such an
institutional accredited investor
, in each case in a minimum
principal
amount of the securities of $250,000, for
investment
purposes and not with a view to
or
for offer
or
sale in connection with any distribution in violation of the
Securities Act
and (B) in accordance with all applicable securities laws of the States of the United States and other jurisdictions.
Beneficial interests in a
Rule 144A Global
Note
or
an
IAI Global Note
may be transferred to a
Person
who takes delivery in the form of an
interest
in a
Regulation S Global
Note
, whether before
or
after the expiration of the
Distribution Compliance Period
, only if the transferor first delivers to the
Trustee
a written certificate (in the form provided in this
Indenture
) to the effect that such transfer is being made in accordance with Rule 903
or
904 of
Regulation S
or
Rule 144 (as applicable) and that, if such transfer occurs prior to the expiration of the
Distribution Compliance Period
, the
interest
transferred will be held immediately thereafter through Euroclear
or
Clearstream.
The
Rule 144A
Global
Note
, the
IAI Global Note and the Regulation S Global Note
are collectively referred to herein as “
Global Notes
”. The aggregate
principal
amount of the
Global Notes
may from time to time be increased
or
decreased by adjustments made on the records of the
Trustee
and the
Depository
or
its nominee as hereinafter provided.
(b)
Book-Entry Provisions
. This Section
2.1(b)
shall apply only to a Global Note deposited with
or
on behalf of the
Depository
.
The
Company
shall execute and the
Trustee
shall, in accordance with this Section
2.1(b)
and Section
2.2
, authenticate and deliver initially one
or
more
Global Notes
that (a) shall be registered in the name of the
Depository
for such Global Note
or
Global Notes
or
the nominee of such
Depository
and (b) shall be delivered by the
Trustee
to such
Depository
or
pursuant to such
Depository
’s instructions
or
held by the
Trustee
as custodian for the
Depository
.
Members of,
or
participants in, the Depository (“
Agent Members
”) shall have no rights under this
Indenture
with respect to any Global Note held on their behalf by the
Depository
or
by the
Trustee
as the custodian of the
Depository
or
under such Global Note, and the
Company
, the
Trustee
and any agent of the
Company
or
the
Trustee
shall be entitled to treat the
Depository
as the absolute owner of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the
Company
, the
Trustee
or
any agent of the
Company
or
the
Trustee
from giving effect to any written certification, proxy
or
other authorization furnished by the
Depository
or
impair, as between the
Depository
and its
Agent Members
, the operation of customary practices of such
Depository
governing the exercise of the rights of a
holder
of a beneficial
interest
in any Global Note.
(c)
Definitive Notes
. Except as provided in this Section
2.1
or
Section
2.3
or
2.4, owners of beneficial interests in
Global Notes
shall not be entitled to receive physical delivery of
Definitive Notes
.
2.2.
Authentication.
The
Trustee
shall authenticate and deliver:
(1)
on the
Issue Date
,
4.875% Senior
Notes
due 2024
with an aggregate
principal
amount of $250,000,000 and
(2)
any
Additional Notes
for an original issue in an aggregate
principal
amount specified in the written order of the
Company
pursuant to Section 2.02 of this
Indenture
, in each case upon a written order of the
Company
signed by one
Officer
. Such order shall specify the amount of the
Notes
to be authenticated and the date on which the original issue of
Notes
is to be authenticated.
2.3.
Transfer and Exchange
.
(b)
Transfer and Exchange of
Definitive Notes
. When
Definitive Notes
are presented to the
Registrar
with a request:
(i)
to register the transfer of such
Definitive Notes
;
or
(ii)
to exchange such
Definitive Notes
for an equal
principal
amount of
Definitive Notes
of other authorized denominations,
the
Registrar
shall register the transfer
or
make the exchange as requested if its reasonable requirements for such transaction are met;
provided, however
,
that the
Definitive Notes
surrendered for transfer
or
exchange:
(1)
shall be duly endorsed
or
accompanied by a written instrument of transfer in form reasonably satisfactory to the
Company
and the
Registrar
, duly executed by the
Holder
thereof
or
its attorney duly authorized in writing; and
(2)
if such
Definitive Notes
are required to bear a restricted securities legend, they are being transferred
or
exchanged pursuant to an effective registration statement under the
Securities Act
, pursuant to Section
2.3(b)
or
pursuant to clause
(A)
,
(B)
or
(C)
below, and are accompanied by the following additional information and documents, as applicable:
(A)
if such
Definitive Notes
are being delivered to the
Registrar
by a
Holder
for registration in the name of such
Holder
, without transfer, a written certification from such
Holder
to that effect;
or
(B)
if such
Definitive Notes
are being transferred to the
Company
, a written certification to that effect;
or
(C)
if such
Definitive Notes
are being transferred (x) pursuant to an exemption from registration in accordance with
Rule 144A
,
Regulation
S
or
Rule 144 under the
Securities Act
;
or
(y) in reliance upon another exemption from the requirements of the
Securities Act
: (i) a written certification to that effect (in the form set forth on the reverse of the
Note
) and (ii) if the
Company
so requests, an opinion of counsel
or
other evidence reasonably satisfactory to it as to the compliance with the restrictions set forth in the legend set forth in Section
2.3(d)(i)
.
(b)
Restrictions on Transfer of a
Definitive Note
for a Beneficial Interest in a Global Note
. A
Definitive Note
may not be exchanged for a beneficial
interest
in a
Rule 144A Global
Note
, an
IAI Global Note
or
a
Regulation S Global
Note
except upon satisfaction of the requirements set forth below. Upon receipt by the
Trustee
of a
Definitive Note
, duly endorsed
or
accompanied by appropriate instruments of transfer, in form satisfactory to the
Trustee
, together with:
(i)
certification, in the form set forth on the reverse of the
Note
, that such
Definitive Note
is either
(A)
being transferred to a
QIB
in accordance with
Rule 144A
, (B) being transferred to an
IAI
or
(C)
being transferred after expiration of the
Distribution Compliance Period
by a
Person
who initially purchased such
Note
in reliance on
Regulation S
to a buyer who elects to hold its
interest
in such
Note
in the form of a beneficial
interest
in the
Regulation S Global
Note
; and
(ii)
written instructions directing the
Trustee
to make,
or
to direct the
Notes Custodian
to make, an adjustment on its books and records with respect to such
Rule 144A
Global Note
(in the case of a transfer pursuant to clause
(b)(i)(A)
),
IAI
Global Note
(in the case of a transfer pursuant to clause (b)(1)(B))
or
Regulation S
Global
Note
(in the case of a transfer pursuant to clause
(b)(i)(C)
) to reflect an increase in the aggregate
principal
amount of the
Notes
represented by the
Rule 144A
Global Note
,
IAI
Global Note
or
Regulation S
Global
Note
, as applicable, such instructions to contain information regarding the
Depository
account to be credited with such increase,
then the
Trustee
shall cancel such
Definitive Note
and cause,
or
direct the
Notes Custodian
to cause, in accordance with the standing instructions and procedures existing between the
Depository
and the
Notes Custodian
, the aggregate
principal
amount of
Notes
represented by the
Rule 144A
Global Note
,
IAI
Global Note
or
Regulation S
Global
Note
, as applicable, to be increased by the aggregate
principal
amount of the
Definitive Note
to be exchanged and shall credit
or
cause to be credited to the account of the
Person
specified in such instructions a beneficial
interest
in the
Rule 144A
Global Note
,
IAI
Global Note
or
Regulation S
Global
Note
, as applicable, equal to the
principal
amount of the
Definitive Note
so canceled. If no
Rule 144A Global Notes
,
IAI Global Notes
or
Regulation S Global Notes
, as applicable, are then outstanding, the
Company
shall issue and the
Trustee
shall authenticate, upon written order of the
Company
in the form of an
Officer
’s
Certificate
of the
Company
, a new
Rule 144A Global Note
,
IAI Global Note
or
Regulation S Global
Note
, as applicable, in the appropriate
principal
amount.
(c)
Transfer and Exchange of
Global Notes
. (i) The transfer and exchange of
Global Notes
or
beneficial interests therein shall be effected through the
Depository
, in
accordance with this
Indenture
(
including
applicable restrictions on transfer set forth herein, if any) and the procedures of the
Depository
therefor. A transferor of a beneficial
interest
in a Global Note shall deliver to the
Registrar
a written order given in accordance with the
Depository
’s procedures containing information regarding the participant account of the
Depository
to be credited with a beneficial
interest
in the Global Note. The
Registrar
shall, in accordance with such instructions instruct the
Depository
to credit to the account of the
Person
specified in such instructions a beneficial
interest
in the Global Note and to debit the account of the
Person
making the transfer the beneficial
interest
in the Global Note being transferred.
(ii)
If the proposed transfer is a transfer of a beneficial
interest
in one Global Note to a beneficial
interest
in another Global Note, the
Registrar
shall reflect on its books and records the date and an increase in the
principal
amount of the Global Note to which such
interest
is being transferred in an amount equal to the
principal
amount of the
interest
to be so transferred, and the
Registrar
shall reflect on its books and records the date and a corresponding decrease in the
principal
amount of the Global Note from which such
interest
is being transferred.
(iii)
Notwithstanding any other provisions of this
Appendix
(other than the provisions set forth in Section
2.4)
, a Global Note may not be transferred as a whole except by the
Depository
to a nominee of the
Depository
or
by a nominee of the
Depository
to the
Depository
or
another nominee of the
Depository
or
by the
Depository
or
any such nominee to a successor
Depository
or
a nominee of such successor
Depository
.
(iv)
In the event that a Global Note is exchanged for
Definitive Notes
pursuant to Section 2.4 of this
Appendix
, such
Notes
may be exchanged only in accordance with such procedures as are substantially consistent with the provisions of this Section
2.3
(
including
the certification requirements set forth on the reverse of the
Notes
intended to ensure that such transfers comply with
Rule 144A
,
Regulation S
or
another applicable exemption under the
Securities Act
, as the case may be) and such other procedures as may from time to time be adopted by the
Company
.
(d)
Legend
. (ii) Except as permitted by the following paragraph
(ii)
, each
Note
certificate evidencing the
Global Notes
(and all
Notes
issued in exchange therefor
or
in substitution thereof) shall bear a legend in substantially the following form:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, 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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
Each
Transfer Restricted Note
shall also bear the following additional legend:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS [IN THE CASE OF RULE 144A NOTES: ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY),] [IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S], ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3)
OR (7) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. [IN THE CASE OF REGULATION S NOTES:
BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.]
BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY CONSTITUTES THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) OR PROVISIONS UNDER ANY FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAWS”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY SUCH PLAN, ACCOUNT OR ARRANGEMENT, OR (2) THE ACQUISITION AND HOLDING OF THIS SECURITY BY SUCH HOLDER WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.
Each
Definitive Note
shall also bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE
HOLDER
WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
(ii)
Upon any sale
or
transfer of a Transfer Restricted Note (
including
any Transfer Restricted Note represented by a Global Note) pursuant to Rule 144 under the
Securities Act
, the
Registrar
shall permit the transferee thereof to exchange such Transfer Restricted Note for a certificated
Note
that does not bear the legend set forth above and rescind any restriction on the transfer of such Transfer Restricted Note, if the transferor thereof certifies in writing to the
Registrar
that such sale
or
transfer was made in reliance on Rule 144 (such certification to be in the form set forth on the reverse of the
Note
).
(e)
Cancellation
or
Adjustment of Global Note
. At such time as all beneficial interests in a Global Note have either been exchanged for
Definitive Notes
, redeemed, purchased
or
canceled, such Global Note shall be returned to the
Depository
for cancellation
or
retained and canceled by the
Trustee
. At any time prior to such cancellation, if any beneficial
interest
in a Global Note is exchanged for certificated
Notes
, redeemed, purchased
or
canceled, the
principal
amount of
Notes
represented by such Global Note shall be reduced and an adjustment shall be made on the books and records of the
Trustee
(if it is then the
Notes Custodian
for such Global Note) with respect to such Global Note, by the
Trustee
or
the
Notes Custodian
, to reflect such reduction.
(f)
No
Obligation
of the Trustee
.
(i)
The
Trustee
shall have no responsibility
or
obligation to any beneficial owner of a Global Note, a member of,
or
a participant in the
Depository
or
other
Person
with respect to the accuracy of the records of the
Depository
or
its nominee
or
of any participant
or
member thereof, with respect to any ownership
interest
in the
Notes
or
with respect to the delivery to any participant, member, beneficial owner
or
other
Person
(other than the
Depository
) of any notice (
including
any notice of redemption)
or
the payment of any amount, under
or
with respect to such
Notes
. All notices and communications to be given to the
Holders
and all payments to be made to
Holders
under the
Notes
shall be given
or
made only to
or
upon the order of the registered
Holders
(which shall be the
Depository
or
its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the
Depository
subject to the applicable rules and procedures of the
Depository
. The
Trustee
may conclusively rely and shall be fully protected in relying upon information furnished by the
Depository
with respect to its members, participants and any beneficial owners.
(ii)
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
Note
(
including
any transfers between
or
among
Depository
participants, members
or
beneficial owners in any Global Note) 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.
(a)
A Global Note deposited with the
Depository
or
with the
Trustee
as
Notes Custodian
for the
Depository
pursuant to Section
2.1
shall be transferred to the beneficial owners thereof in the form of
Definitive Notes
in an aggregate
principal
amount equal to the
principal
amount of such Global Note, in exchange for such Global Note, only if such transfer complies with Section
2.3
hereof and (i) the
Depository
notifies the
Company
that it is unwilling
or
unable to continue as
Depository
for such Global Note and the
Depository
fails to appoint a successor
depository
or
if at any time such
Depository
ceases to be a “clearing agency” registered under the
Exchange Act
, in either case, and a successor
depository
is not appointed by the
Company
within 90
days
of such notice,
or
(ii) an Event of
Default
has occurred and is continuing
or
(iii) the
Company
, in its sole discretion, notifies the
Trustee
in writing that it elects to cause the issuance of
Definitive Notes
under this
Indenture
.
(b)
Any Global Note that is transferable to the beneficial owners thereof pursuant to this Section
2.4
shall be surrendered by the
Depository
to the
Trustee
located at its
principal
corporate trust office in the
Borough of Manhattan
, The
City of New York
, to be so transferred, in whole
or
from time to time in part, without charge, and the
Trustee
shall authenticate and deliver, upon such transfer of each portion of such Global Note, an equal aggregate
principal
amount of
Definitive Notes
of authorized denominations. Any portion of a Global Note transferred pursuant to this Section
2.4
shall be executed, authenticated and delivered only in denominations of $2,000
principal
amount and any integral multiple
of $1,000 in excess of $2,000
and registered in such names as the
Depository
shall direct. Any
Definitive Note
delivered in exchange for an
interest
in the Transfer Restricted Note shall, except as otherwise provided by Section
2.3(e)
hereof, bear the applicable restricted securities legend and definitive securities legend set forth in Exhibit 1 hereto.
(c)
Subject to the provisions of Section
2.4(b)
hereof, the registered
Holder
of a Global Note shall be entitled to grant proxies and otherwise authorize any
Person
,
including
Agent Members
and
Persons
that may hold interests through
Agent Members
, to take any action which a
Holder
is entitled to take under this
Indenture
or
the
Notes
.
(d)
In the event of the occurrence of one of the events specified in Section
2.4(a)
hereof, the
Company
shall promptly make available to the
Trustee
a reasonable supply of
Definitive Notes
in definitive, fully registered form without
interest
coupons. In the event that such
Definitive Notes
are not issued, the
Company
expressly acknowledges, with respect to the right of any
Holder
to pursue a remedy pursuant to Section 6.06 of this
Indenture
, the right of any beneficial owner of
Notes
to pursue such remedy with respect to the portion of the Global Note that represents such beneficial owner’s
Notes
as if such
Definitive Notes
had been issued.
to
RULE 144A/REGULATION S/IAI APPENDIX
[FORM OF FACE OF NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“
DTC
”), NEW YORK, NEW YORK, 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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC
) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT
IN PART, TO NOMINEES OF
DTC
OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Notes Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS [IN THE CASE OF RULE 144A NOTES: ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY),] [IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE DATE ON
WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S], ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. [IN THE CASE OF REGULATION S NOTES: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.]
BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY CONSTITUTES THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) OR PROVISIONS UNDER ANY FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAWS”), OR AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY SUCH PLAN, ACCOUNT OR ARRANGEMENT, OR (2) THE ACQUISITION AND HOLDING OF THIS SECURITY BY SUCH HOLDER WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.
[Definitive Notes Legend]
IN CONNECTION WITH ANY TRANSFER, THE
HOLDER
WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
CUSIP No.
(144A)
20451N AE1
; (Reg S
) U2036Y AC0
; (
IAI
)
20451N AF8
ISIN No.
(144A)
US20451NAE13
; (Reg S)
USU2036YAC04
; (
IAI
)
US20451NAF87
No.
______
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$
_____________
,
|
as revised by the Schedule of Exchanges of
Interests in the Global Note attached hereto
4.875% Senior
Notes due 2024
Compass Minerals International, Inc., a Delaware corporation, promises to pay to ________, or registered assigns, the principal sum [set forth on the Schedule of Exchanges of Interests in the Global Note attached hereto]* [of _____________ Dollars]** on July 15, 2024.
Interest Payment Dates: January 15 and July 15.
Record Dates:
[January 1 and July 1]
*
[the last
Business Day
prior to the applicable
interest
payment date]
*
*
.
Additional provisions of this
Note
are set forth on the other side of this
Note
.
*
Include for Global Notes.
**
Include for Definitive Notes.
IN WITNESS HEREOF, the Issuer has caused this instrument to be duly executed.
Dated:
_____________
, 20___
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COMPASS MINERALS INTERNATIONAL INC.
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By
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|
Name:
|
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Title:
|
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TRUSTEE’S CERTIFICATE OF
AUTHENTICATION
U.S. BANK NATIONAL ASSOCIATION
as
Trustee
, certifies that this is one of the
Notes
referred to in the
Indenture
Dated:
[FORM OF REVERSE SIDE OF NOTE]
4.875% Senior
Note due 2024
1.
Interest
Compass Minerals International, Inc., a Delaware corporation (such corporation and its successors and assigns under the
Indenture
hereinafter referred to, being herein called the “
Company
”), promises to pay
interest
on the
principal
amount of this
Note
at the rate per annum shown above. The
Company
will pay
interest
semiannually on January 15 and July 15 of each year, commencing January 15, 2015.
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 June 23, 2014.
Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
2.
Maturity
The
Notes
will mature on July 15, 2024.
3.
Method of Payment
The
Company
will pay
interest
on the
Notes
(except defaulted
interest
) to the
Persons
who are registered holders of
Notes
at the close of business on the
January 1 and July 1
next preceding the
interest
payment date even if
Notes
are canceled after the record date and on
or
before the
interest
payment date.
Holders
must surrender
Notes
to a Paying Agent to collect
principal
payments. The
Company
will pay
principal
and
interest
in money of the United States that at the time of payment is legal tender for payment of public and private debts. Payments in respect of the
Notes
represented by a Global Note (
including
principal
, premium and
interest
) will be made by wire transfer of immediately available funds to the accounts specified by The Depository Trust Company. The
Company
will make all payments in respect of a certificated
Note
(
including
principal
, premium and
interest
) at the office of the
Paying Agent
, except that, at the option of the
Company
, payment of
interest
may be made by mailing a check to the registered address of each
Holder
thereof;
provided, however
,
that payments on a certificated
Note
will be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such
Holder
elects payment by wire transfer by giving written notice to the
Trustee
or
the
Paying Agent
to such effect designating such account no later than 30
days
immediately preceding the relevant due date for payment (
or
such other date as the
Trustee
may accept in its discretion).
4.
Paying Agent and
Registrar
Initially, U.S. Bank National Association
(the “
Trustee
”), will act as Paying Agent and
Registrar
. The
Company
may appoint and change any Paying Agent, Registrar
or
co-registrar without notice. The
Company
or
any of its domestically incorporated
Wholly Owned Subsidiaries
may act as Paying Agent, Registrar
or
co-registrar.
5.
Indenture
The
Company
issued the
Notes
under an
Indenture
dated as of June 23, 2014 (the “
Indenture
”), among the
Company
, the
Guarantors
and the
Trustee
. The terms of the
Notes
include those stated in the
Indenture
. Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the
Indenture
. The
Notes
are subject to all such terms, and
Noteholders
are referred to the
Indenture
for a statement of those terms.
The
Notes
are general unsecured senior obligations of the
Company
. The
Company
shall be entitled to issue Additional Notes pursuant to Section 2.13 of the
Indenture
. The
Notes
issued on the
Issue Date
and any
Additional Notes
will be treated as a single class for all purposes under the
Indenture
. The
Indenture
contains covenants that limit the ability of the
Company
and its subsidiaries to create liens on assets; consolidate, merge
or
transfer all
or
substantially all of its assets and the assets of its subsidiaries; and engage in sale/leaseback transactions. The Indenture also contains a covenant that restricts the ability of the Company’s non-guarantor subsidiaries to incur or guarantee additional indebtedness without such non-guarantor subsidiary guaranteeing the Notes on a pari passu basis. These covenants are subject to important exceptions and qualifications.
6.
Optional Redemption
The
Company
, at its option, may redeem all,
or
from time to time, any part of the
Notes
on not less than 15
days
nor more than 60
days’
notice as provided in the
Indenture
(except that, notwithstanding the provisions of Section 3.02 of the
Indenture
, any notice of redemption for the
Notes
given pursuant to said Section need not set forth the redemption price but only the manner of calculation thereof) at a
Make Whole Redemption Price
equal to the greater of the following amounts:
(i)
100% of the
principal
amount of the
Notes
then outstanding to be so redeemed; and
(ii)
the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed on that redemption date (not including any portion of payments of interest accrued to the redemption date), discounted to the applicable redemption date on a semi-annual basis at a rate equal to the sum of the Treasury Rate plus 0.50%,
plus
, in either of the above cases, accrued and unpaid interest, if any, on the
principal
amount being redeemed to, but excluding, the applicable redemption date.
Notice of any redemption may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of an equity offering, debt offering or other financing or Change of Control. In addition, if such redemption is subject to satisfaction of one or more conditions precedent, such notice of redemption shall describe each such condition, and if applicable, shall state that, in the Company’s discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied (or waived by us in our sole discretion), or that such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied (or waived by us in our sole discretion) by the redemption date as stated in such notice, or by the redemption
date as so delayed. The Company may provide in such notice that payment of the redemption price and performance of our obligations with respect to such redemption may be performed by another Person.
The
Make Whole Redemption Price
for the
Notes
will be calculated by the
Independent
Investment
Banker
assuming a 360-day year consisting of twelve 30-day months.
For purposes of calculating the
Make Whole Redemption Price
pursuant to the foregoing optional redemption provisions, the following terms will have the meanings set forth below.
“
Comparable Treasury Issue
”
means the U.S. Treasury security or securities selected by the Independent Investment Banker as having a maturity comparable to the remaining term of the Notes (as measured from the date of redemption) that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Notes,
“
Comparable Treasury Price
” means, with respect to any redemption date:
(i)
the average of the
Reference Treasury Dealer Quotations
for that redemption date, after excluding the highest and lowest of the
Reference Treasury Dealer Quotations
;
(ii)
if the
Company
obtains fewer than four
Reference Treasury Dealer Quotations
, the average of all
Reference Treasury Dealer Quotations
so received;
or
(iii)
if only one
Reference Treasury Dealer Quotation
is received, such quotation.
“
Independent Investment Banker
” means one of the
Reference Treasury Dealers
selected by the
Company
.
“
Reference Treasury Dealer
” means each of four primary U.S. Government securities dealers in New York City (each a “
Primary Treasury Dealer
”), consisting of
(i) J
.P. Morgan Securities LLC (
or
its affiliate), and
(ii) t
hree other nationally recognized
investment
banking firms (
or
their affiliates) that the
Company
selects in connection with the particular redemption, and their respective successors, provided that if any of them ceases to be a
Primary Treasury Dealer
, the
Company
will substitute another nationally recognized
investment
banking firm (
or
its affiliate) that is a
Primary Treasury Dealer
.
“
Reference Treasury Dealer Quotations
” means, with respect to each
Reference Treasury Dealer
and any redemption date, the average, as determined by the
Independent
Investment
Banker
, of the bid and asked prices for the
Comparable Treasury Issue
(expressed as a percentage of its
principal
amount) quoted in writing to the
Independent
Investment
Banker
by such
Reference Treasury Dealer
at 3:30 p.m., New York City time, on the third
Business Day
preceding that redemption date.
“
Treasury Rate
” means, with respect to any redemption date, the rate per year equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue
, calculated on the third
Business Day
preceding the applicable redemption date, assuming a price for the
Comparable Treasury Issue
(expressed as a percentage of its
principal
amount) equal to the
Comparable Treasury Price
for that redemption date.
In addition, the Company may redeem the Notes, in whole or in part from time to time, at its option, on or after May 15, 2024 at a redemption price equal to 100% of the aggregate principal amount of the Notes plus accrued and unpaid interest, if any, to, but excluding, the redemption date.
Unless the
Company
defaults in the payment of the applicable redemption price, on
or
after the applicable redemption date,
interest
will cease to accrue on the
Notes
or
portions of the
Notes
called for redemption.
If the optional redemption date is after an
interest
record date and on
or
before the related
interest
payment date, the accrued and unpaid
interest
, if any, will be paid to the person in whose name the
Note
is registered at the close of business, on such record date.
7.
Notice of Redemption
Notice
of redemption will be mailed by first-class mail
or
delivered in accordance with the applicable procedures of
DTC
at least 15
days
but not more than 60
days
before the redemption date to each
Holder
of
Notes
to be redeemed at his registered address.
Notes
in denominations larger than $2,000
principal
amount may be redeemed in part but only in whole multiples
of $1,000 in excess of $2,000
. If money sufficient to pay the redemption price of and accrued
interest
on all
Notes
(
or
portions thereof) to be redeemed on the redemption date is deposited with the
Paying Agent
on
or
before the redemption date and certain other conditions are satisfied, on and after such date
interest
ceases to accrue on such
Notes
(
or
such portions thereof) called for redemption.
8.
Put Provisions
Upon the occurrence of a
Change of Control
Triggering Event
, any
Holder
of
Notes
will have the right to cause the
Company
to repurchase all
or
any part of the
Notes
of such
Holder
at a repurchase price equal to 101% of the
principal
amount of the
Notes
to be repurchased plus accrued and unpaid, if any,
interest
to the date of repurchase (subject to the right of
Holders
of record
on the relevant record date to receive
interest
due on the related
interest
payment date) as provided in, and subject to the terms of, the
Indenture
. A “Change of Control Triggering Event” means the occurrence of both a Change of Control and a Ratings Event.
9.
Denominations; Transfer; Exchange
The
Notes
are in registered form without coupons in denominations of $2,000
principal
amount and any integral multiple
of $1,000 in excess of $2,000
. A
Holder
may transfer
or
exchange
Notes
in accordance with the
Indenture
. The
Registrar
and the
Trustee
may require a
Holder
, among other things, to furnish appropriate endorsements
or
transfer documents and to pay any taxes and fees required by law
or
permitted by the
Indenture
. The
Registrar
need not register the transfer of
or
exchange any
Notes
selected for redemption (except, in the case of a
Note
to be redeemed in part, the portion of the
Note
not to be redeemed)
or
any
Notes
for a period of 15
days
before a selection of
Notes
to be redeemed
or
15
days
before an
interest
payment date.
10.
Persons Deemed Owners
The registered
Holder
of this
Note
may be treated as the owner of it for all purposes.
11.
Unclaimed Money
If money for the payment of
principal
or
interest
remains unclaimed for two years, the
Trustee
or
Paying Agent
shall pay the money back to the
Company
at its request unless an abandoned property law designates another
Person
. After any such payment,
Holders
entitled to the money must look only to the
Company
and not to the
Trustee
for payment.
12.
Discharge and Defeasance
Subject to certain conditions, the
Company
at any time shall be entitled to terminate some
or
all of its obligations under the
Notes
and the
Indenture
if the
Company
deposits with the
Trustee
money
or
U.S. Government Obligations
for the payment of
principal
and
interest
on the
Notes
to redemption
or
maturity, as the case may be.
13.
Amendment; Waiver
Subject to certain exceptions set forth in the
Indenture
,
(a)
the
Indenture
and the
Notes
may be amended with the written consent of the
Holders
of at least a majority in
principal
amount outstanding of the
Notes
(
including
consents obtained in connection with a tender offer
or
exchange offer for the
Notes
) and
(b)
any past default
or
noncompliance with any provision may be waived with the written consent of the
Holders
of a majority in
principal
amount outstanding of the
Notes
(
including
consents obtained in connection with a tender offer
or
exchange offer for the
Notes
). Subject to certain exceptions set forth in the
Indenture
, without the consent of any
Noteholder
, the
Company
, and the
Trustee
shall be entitled to amend the
Indenture
or
the
Notes
to cure any ambiguity, omission, defect
or
inconsistency,
or
to comply with Article 5 of the
Indenture
,
or
to provide for uncertificated
Notes
in addition to
or
in place of certificated
Notes
,
or
to add guarantees with respect to the
Notes
or to secure the Notes
,
or
to add covenants
or
surrender rights and powers conferred on the
Company
or any of its Subsidiaries
,
or
to make any change that does not adversely affect the rights of any
Noteholder
, or to release a Guarantor from its obligations under its Guarantee or the Indenture, or to conform the text of the Indenture, the Notes or the Note Guarantees to any provision in the Offering Memorandum under the heading “Description of notes,” or to make amendments to provisions of the
Indenture
relating to the transfer and legending of the
Notes
.
14.
Defaults
and Remedies
Under the
Indenture
, Events of
Default
include
(a)
default for 30
days
in payment of
interest
on the
Notes
;
(b)
default in payment of
principal
on the
Notes
at maturity, upon
redemption pursuant to paragraph 5 of the
Notes
, upon acceleration
or
otherwise,
or
failure by the
Company
to redeem
or
purchase
Notes
when required;
(c)
failure by the
Company
to comply with other agreements in the
Indenture
or
the
Notes
, in certain cases subject to notice and lapse of time;
(d)
certain accelerations (
including
failure to pay within any grace period after final maturity) of other
Indebtedness
of the
Company
if the amount accelerated (
or
so unpaid) exceeds $40.0 million;
(e)
certain events of bankruptcy
or
insolvency with respect to the
Company
and the
Significant Subsidiaries
; and
(f)
certain judgments
or
decrees for the payment of money in excess of $40.0 million. If an Event of
Default
occurs and is continuing, the
Trustee
or
the
Holders
of at least 25% in
principal
amount
of the
Notes
may declare all the
Notes
to be due and payable immediately. Certain events of bankruptcy
or
insolvency are Events of
Default
which will result in the
Notes
being due and payable immediately upon the occurrence of such Events of
Default
.
Noteholders
may not enforce the
Indenture
or
the
Notes
except as provided in the
Indenture
. The
Trustee
may refuse to enforce the
Indenture
or
the
Notes
unless it receives indemnity
or
security satisfactory to it. Subject to certain limitations,
Holders
of a majority in
principal
amount of the
Notes
may direct the
Trustee
in its exercise of any trust
or
power. The
Trustee
may withhold from
Noteholders
notice of any continuing
Default
(except a
Default
in payment of
principal
or
interest
) if it determines that withholding notice is in the
interest
of the
Holders
.
15.
Trustee Dealings with the
Company
Subject to certain limitations imposed by the Act, the
Trustee
under the
Indenture
, in its individual
or
any other capacity, may become the owner
or
pledgee of
Notes
and may otherwise deal with and collect obligations owed to it by the
Company
or
its
Affiliates
and may otherwise deal with the
Company
or
its
Affiliates
with the same rights it would have if it were not
Trustee
.
16.
No Recourse Against Others
A director, officer, employee, incorporator
or
stockholder, as such, of the
Company
, any of its
Subsidiaries
or
the
Trustee
shall not have any liability for any obligations of the
Company
under the
Notes
or
the
Indenture
or
for any claim based on, in respect of
or
by reason of such obligations
or
their creation. By accepting a
Note
, each
Noteholder
waives and releases all such liability. The waiver and release are part of the consideration for the issue of the
Notes
.
17.
Authentication
This
Note
shall not be valid until an authorized signatory of the
Trustee
(
or
an authenticating agent) manually signs the certificate of authentication on the other side of this
Note
.
Customary abbreviations may be used in the name of a
Noteholder
or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
19.
CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform Note Identification Procedures the
Company
has caused CUSIP numbers to be printed on the
Notes
and has directed the
Trustee
to use CUSIP numbers in notices of redemption as a convenience to
Noteholders
. 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.
20.
Governing Law
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK
.
The
Company
will furnish to any
Noteholder
upon written request and without charge to the
Note
holder
a copy of the
Indenture
which has in it the text of this
Note
in larger type. Requests may be made to:
Compass Minerals International, Inc.
9900 West 109th Street
Suite 100
Overland Park, KS 66210
Attention: Chief Financial Officer
To assign this
Note
, fill in the form below:
I
or
we assign and transfer this
Note
to:
(Print
or
type assignee’s name, address and zip code)
(Print
or
type assignee’s name, address and zip code)
(Insert assignee’s soc. sec.
or
tax
I.D. No
.)
and irrevocably appoint agent to transfer this
Note
on the books of the
Company
. The agent may substitute another to act for him.
Sign exactly as your name appears on the other side of this
Note
.
OPTION OF
HOLDER
TO ELECT PURCHASE
If you want to elect to have this
Note
purchased by the
Company
pursuant to 4.03 (
Change of Control
) of the
Indenture
, check the box:
Change of Control
o
If you want to elect to have only part of this
Note
purchased by the
Company
pursuant to Section 4.03 of the
Indenture
, state the amount in
principal
amount: $
_______________________
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Your
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Date:
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Signature:
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(Sign exactly as your name appears on the other side of this
Note
.)
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Signature
Guarantee
:
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(Signature must be guaranteed)
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Signatures must be guaranteed by an “
eligible guarantor institution
” meeting the requirements of the
Registrar
, which requirements include membership
or
participation in the Note Transfer Agent Medallion Program (“
STAMP
”)
or
such other “signature guarantee program” as may be determined by the
Registrar
in addition to,
or
in substitution for,
STAMP
, all in accordance with the
Notes Exchange Act of 1934
, as amended.
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The initial outstanding principal amount of this Global Note is $______. The following exchanges of a part of this Global Note for an interest in another Global Note [or for a Definitive]** Note, or exchanges of a part of another Global [or Definitive]** Note for an interest in this Global Note, have been made:
Date of Exchange
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Amount of Decrease in
Principal Amount of
this Global Note
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Amount of Increase in
Principal Amount of
this Global Note
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Principal Amount of
this Global Note
Following Such
Decrease (or Increase)
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Signature of
Authorized Officer of
Trustee or Notes
Custodian
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*This schedule should be included only if the Note is issued in global form.
EXHIBIT 2 to Rule 144A/REGULATION S/IAI APPENDIX
Form of
Transferee Letter of Representation
Compass Minerals International, Inc.
9900 West 109th Street
Suite 100
Overland Park, KS 66210
Attention: Chief Financial Officer
In care of
Global Corporate Trust Services
U.S. Bank National Association
One U.S. Bank Plaza
St. Louis, MO 63101
Attention:
Rebekah A. Foltz
Email: rebekah.foltz@usbank.com
This certificate is delivered to request a transfer of $
[ ]
principal
amount of the
4.875% Senior
Notes
due 2024
(the “
Notes
”) of Compass Minerals International, Inc. (the “
Company
”).
Upon transfer, the
Notes
would be registered in the name of the new beneficial owner as follows:
The undersigned represents and warrants to you that:
1
.
We are an institutional “accredited investor” (as defined in Rule 501(a)(1),
(2)
,
(3)
or
(7) under the
Securities Act
of 1933, as amended (the “
Securities Act
”)), purchasing for our own account
or
for the account of such an institutional “accredited investor” at least $250,000
principal
amount of the
Notes
, and we are acquiring the
Notes
not with a view to,
or
for offer
or
sale in connection with, any distribution in violation of the
Securities Act
. We 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 invest in
or
purchase securities similar to the
Notes
in the normal course of our business. We, and any accounts for which we are acting, are each able to bear the economic risk of our
or
its
investment
.
2.
We understand that the
Notes
have not been registered under the
Securities Act
and, unless so registered, may not be sold except as permitted in the following sentence. We agree on our own behalf and on behalf of any investor account for which we are purchasing
Notes
to offer, sell
or
otherwise transfer such
Notes
prior to the date that is one year after the
later of the date of original issue and the last date on which the
Company
or
any affiliate of the Company
was the owner of such
Notes
(
or
any predecessor thereto) (the “
Resale Restriction Termination Date
”) only
(i)
to the
Company
,
(ii)
in the United States to a person whom the seller reasonably believes is a qualified institutional buyer in a transaction meeting the requirements of
Rule 144A
,
(iii)
to an institutional “accredited investor” within the meaning of
Rule
501(a)(1),
(2)
,
(3)
or
(7) under the
Securities Act
that is an institutional accredited investor purchasing for its own account
or
for the account of an institutional accredited investor, in each case in a minimum
principal
amount of the
Notes
of $250,000,
(iv)
outside the United States in a transaction complying with the provisions of Rule 904 under the
Securities Act
,
(v)
pursuant to an exemption from registration under the
Securities Act
provided by Rule 144 (if available)
or
(vi)
pursuant to an effective registration statement under the
Securities Act
, in each of cases
(i)
through
(vi)
subject to any requirement of law that the
disposition
of our property
or
the property of such investor account
or
accounts be at all times within our
or
their
control
and in compliance with any applicable state securities laws. The foregoing restrictions on resale will not apply subsequent to the Resale Restriction Termination Date. If any resale
or
other transfer of the
Notes
is proposed to be made pursuant to clause
(iii)
above prior to the Resale Restriction Termination Date, the transferor shall deliver a letter from the transferee substantially in the form of this letter to the
Company
and the
Trustee
, which shall provide, among other things, that the transferee is an institutional “
accredited investor
” within the meaning of Rule 501(a)(1),
(2)
,
(3)
or
(7) under the
Securities Act
and that it is acquiring such
Notes
for
investment
purposes and not for distribution in violation of the
Securities Act
. Each purchaser acknowledges that the
Company
and the
Trustee
reserve the right prior to the offer, sale
or
other transfer prior to the Resale Restriction Termination Date of the
Notes
pursuant to clause
(iii)
,
(iv)
or
(v)
above to require the delivery of an opinion of counsel, certifications
or
other information satisfactory to the
Company
and the
Trustee
.
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL INDENTURE
(this “
Supplemental Indenture
”), dated as of
, 20
_
, among
(the “
Guarantor
”),
[a subsidiary of]
Compass Minerals International, Inc. (
or
its permitted successor), a Delaware corporation (the “
Company
”) and
U.S. Bank National Association
, as trustee under the
Indenture
referred to below (the “
Trustee
”).
W
I T N E S S E T H
WHEREAS
, the
Company
has heretofore executed and delivered to the
Trustee
an indenture (the “
Indenture
”), dated as of June 23, 2014 providing for the issuance of
4.875% Senior
Notes
due 2024
(the “
Notes
”);
WHEREAS
, the
Indenture
provides that under certain circumstances the
Guarantor
will execute and deliver to the
Trustee
a
supplemental indenture
pursuant to which the
Guarantor
will unconditionally guarantee all of the
Company
’s
Obligations
under the
Notes
and the
Indenture
on the terms and conditions set forth herein (the “
Note Guarantee
”); and
WHEREAS
, pursuant to Section 9.01 of the
Indenture
, the
Trustee
is authorized to execute and deliver this
Supplemental Indenture
.
NOW
, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor
and the
Trustee
mutually covenant and agree for the equal and ratable benefit of the
Holders
as follows:
1
.
CAPITALIZED TERMS. Capitalized terms used herein without definition will have the meanings assigned to them in the
Indenture
.
2.
AGREEMENT TO GUARANTEE. The
Guarantor
hereby agrees to provide an unconditional
Guarantee
on the terms and subject to the conditions set forth in this
Note
Guarantee
and in the
Indenture
including
but not limited to Article 10 thereof.
4.
NO RECOURSE AGAINST OTHERS. No past, present
or
future director, officer, employee, incorporator, stockholder
or
agent of the
Guarantor
, as such, will have any liability for any obligations of the
Company
or
any
Guarantor
under the
Notes
, any
Note
Guarantees
, the
Indenture
or
this
Supplemental Indenture
or
for any claim based on, in respect of,
or
by reason of, such obligations
or
their creation. Each
Holder
of the
Notes
by accepting a
Note
waives and releases all such liability. The waiver and release are part of the consideration for issuance of the
Notes
.
5.
GOVERNING LAW. This
Supplemental Indenture
and the
Notes
shall be governed by, and construed in accordance with, the laws of the
State of New York
.
6.
COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture
. Each signed copy will be an original, but all of them together represent the same agreement.
7.
EFFECT OF HEADINGS. The Section headings herein are for convenience only and will not affect the construction hereof.
8.
THE
TRUSTEE
. The
Trustee
will not be responsible in any manner whatsoever for
or
in respect of the validity
or
sufficiency of this
Supplemental Indenture
or
for
or
in respect of the recitals contained herein, all of which recitals are made solely by the
Guarantor
.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture
to be duly executed all as of the date first above written.
Dated:
, 20
.
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By:
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Name:
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Title:
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U.S. BANK NATIONAL ASSOCIATION
,
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By:
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Name:
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Title:
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