184
No Personal Liability of Directors, Officers, Employees and Stockholders
No director, officer, employee, incorporator or stockholder of the Issuer or any Guarantor, as such, will have any liability
for any obligations of the Issuer or the Guarantors under the Notes, the Indenture or the Note Guarantees or for any claim
based on, in respect of, or by reason of, such obligations or their creation. Each holder of Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes.
The waiver may not be effective to waive liabilities under the US federal securities laws.
Legal Defeasance and Covenant Defeasance
The Issuer may at any time, at its option, elect to have all of its obligations discharged with respect to the outstanding
Notes and all obligations of the Guarantors discharged with respect to their Note Guarantees ("
Legal Defeasance
")
except for:
(1)
the rights of holders of outstanding Notes to receive payments in respect of the principal of, or interest
(including Additional Amounts) or premium, if any, on, such Notes when such payments are due from the
trust referred to below;
(2)
the Issuer's obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes,
mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money
for security payments held in trust;
(3)
the rights, powers, trusts, duties and immunities of the Trustee, and the Issuer's and the Guarantors' obligations
in connection therewith; and
(4)
the Legal Defeasance and Covenant Defeasance provisions of the Indenture.
In addition, the Issuer may, at its option and at any time, elect to have the obligations of the Issuer and the Guarantors
released with respect to certain covenants (including the Issuer's obligation to make Change of Control Offers and Asset
Sale Offers) that are described in the Indenture ("
Covenant Defeasance
") and thereafter any omission to comply with
those covenants will not constitute a Default or Event of Default with respect to the Notes. In the event Covenant
Defeasance occurs, certain events (not including non-payment or, solely with respect to the Issuer, bankruptcy,
receivership, rehabilitation and insolvency events) described under the caption "—
Events of Default and Remedies
" will
no longer constitute an Event of Default with respect to the Notes. If the Issuer exercises either its Legal Defeasance or
Covenant Defeasance option, each Guarantor will be released and relieved of any obligations under its Note Guarantee
and any security for the Notes (other than the trust) will be released.
In order to exercise either Legal Defeasance or Covenant Defeasance:
(1)
the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the holders of the Notes, cash
in US dollars, non-callable US Government Obligations, or a combination of cash in US dollars and non-
callable US Government Obligations, in amounts as will be sufficient, in the opinion of a nationally
recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of,
or interest (including Additional Amounts) and premium, if any, on, the outstanding Notes on the stated date
for payment thereof or on the applicable redemption date, as the case may be, and the Issuer must specify
whether the Notes are being defeased to such stated date for payment or to a particular redemption date;
(2)
in the case of Legal Defeasance, the Issuer must deliver to the Trustee an opinion of United States counsel
reasonably acceptable to the Trustee confirming that (a) the Issuer has received from, or there has been
published by, the US Internal Revenue Service a ruling or (b) since the Issue Date, there has been a change in
the applicable US federal income tax law, in either case to the effect that, and based thereon such opinion of
counsel will confirm that, the holders of the outstanding Notes will not recognize income, gain or loss for US
federal income tax purposes as a result of such Legal Defeasance and will be subject to US federal income tax
on the same amounts, in the same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(3)
in the case of Covenant Defeasance, the Issuer must deliver to the Trustee an opinion of United States counsel
reasonably acceptable to the Trustee confirming that the holders of the outstanding Notes will not recognize
income, gain or loss for US federal income tax purposes as a result of such Covenant Defeasance and will be
subject to US 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;
(4)
such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a
default under, any material agreement or instrument (other than the Indenture) to which the Issuer or any of its
Subsidiaries is a party or by which the Issuer or any of its Subsidiaries is bound;
(5)
the Issuer must deliver to the Trustee an officer's certificate stating that the deposit was not made by the Issuer
with the intent of preferring the holders of Notes over the other creditors of the Issuer with the intent of
defeating, hindering, delaying or defrauding any creditors of the Issuer or others; and
