================================================================================
INDENTURE
Dated as of June 17, 1999
among
FALCON PRODUCTS, INC.,
Issuer,
FALCON HOLDINGS, INC.,
XXXX FURNITURE CORPORATION,
XXXXXXX INDUSTRIES, INC. and
SY ACQUISITION, INC.,
as Guarantors
and
THE BANK OF NEW YORK,
as Trustee
------------------
Up to $150,000,000
11M% Senior Subordinated Notes due 2009, Series A
11M% Senior Subordinated Notes due 2009, Series B
================================================================================
CROSS-REFERENCE TABLE
Trust Indenture Indenture
Act Section Section
--------------- ---------
Section 310(a).................................. 7.03; 7.10; 13.01
(b)....................................... 7.03; 7.10; 13.01;
13.02
(c)....................................... 7.03; 13.01
Section 311(a).................................. 7.11; 13.01
(b)....................................... 7.11; 13.01
(c)....................................... 13.01
Section 312(a).................................. 13.01
(b)....................................... 13.01; 13.03
(c)....................................... 13.01; 13.03
Section 313(a).................................. 7.06; 13.01
(b)(1).................................... 13.01
(b)(2).................................... 7.06; 7.07; 13.01
(c)....................................... 7.06; 13.01; 13.02
(d)....................................... 7.06; 13.01
Section 314(a).................................. 13.01; 13.02
(b)....................................... 13.01
(c)....................................... 13.01
(d)....................................... 13.01
(e)....................................... 13.01
(f)....................................... 13.01
Section 315(a).................................. 13.01
(b)....................................... 13.01; 13.02
(c)....................................... 13.01
(d)....................................... 13.01
(e)....................................... 13.01
Section 316(a)(1)(A)............................ 6.05; 13.01
(a)(1)(B)................................. 13.01
(a)(2).................................... 13.01
(b)....................................... 13.01
(c)....................................... 13.01
Section 317 .................................... 13.01
----------------
N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
Page
----
ARTICLE One
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01...Definitions 1
SECTION 1.02...Incorporation by Reference of
Trust Indenture Act 22
SECTION 1.03...Rules of Construction 22
ARTICLE Two
THE SECURITIES
SECTION 2.01...Form and Dating 23
SECTION 2.02...Execution and Authentication 24
SECTION 2.03...Registrar and Paying Agent 25
SECTION 2.04...Paying Agent to Hold Assets in Trust 25
SECTION 2.05...Holder Lists 26
SECTION 2.06...Transfer and Exchange 26
SECTION 2.07...Replacement Securities 26
SECTION 2.08...Outstanding Securities 27
SECTION 2.09...Treasury Securities 27
SECTION 2.10...Temporary Securities 27
SECTION 2.11...Cancellation 27
SECTION 2.12...Defaulted Interest 28
SECTION 2.13...CUSIP Number 28
SECTION 2.14...Deposit of Moneys 28
SECTION 2.15...Book-Entry Provisions for Global
Securities 29
SECTION 2.16...Registration of Transfers and Exchanges 29
SECTION 2.17...Issuance of Additional Securities 33
ARTICLE Three
REDEMPTION
SECTION 3.01...Notices to Trustee 33
SECTION 3.02...Selection of Securities to Be Redeemed 34
SECTION 3.03...Notice of Redemption 34
SECTION 3.04...Effect of Notice of Redemption 35
SECTION 3.05...Deposit of Redemption Price 35
SECTION 3.06...Securities Redeemed in Part 36
SECTION 3.07...Optional Redemption 36
ARTICLE Four
COVENANTS
SECTION 4.01...Payment of Securities 36
SECTION 4.02...Maintenance of Office or Agency 37
SECTION 4.03...Limitations on Transactions with Affiliates 37
SECTION 4.04...Limitation on Incurrence of Additional
Indebtedness and Issuance of Preferred Stock 38
SECTION 4.05...Limitation on Asset Sales 39
SECTION 4.06...Limitation on Restricted Payments 42
SECTION 4.07...Compliance with Laws 44
SECTION 4.08...Payment of Taxes and Other Claims 44
SECTION 4.09...Notice of Defaults 45
SECTION 4.10...Maintenance of Properties and Insurance 45
SECTION 4.11...Compliance Certificate 45
SECTION 4.12...Reports to Holders 45
SECTION 4.13...Waiver of Stay, Extension or Usury Laws 46
SECTION 4.14...Change of Control 47
SECTION 4.15...Prohibition on Incurrence of Senior
Subordinated Indebtedness 48
SECTION 4.16...Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries 48
SECTION 4.17...[This Section has been intentionally
omitted] 50
SECTION 4.18...Limitation on Liens 50
SECTION 4.19...Limitation of Guarantees by Restricted
Subsidiaries 50
SECTION 4.20...Conduct of Business 50
SECTION 4.21...Corporate Existence 50
SECTION 4.22...Limitation on Sale and Leaseback
Transactions 51
SECTION 4.23...Limitation on Issuance and Sales of
Equity Interests in Wholly Owned
Restricted Subsidiaries 51
SECTION 4.24...Designation of Restricted and
Unrestricted Subsidiaries 51
SECTION 4.25...Payments for Consent 52
SECTION 4.26...Future Subsidiary Guarantors 52
ARTICLE Five
MERGERS, CONSOLIDATIONS AND ASSET SALES; SUCCESSORS
SECTION 5.01...Merger, Consolidation and Sale of Assets 52
SECTION 5.02...Successor Substituted 54
ARTICLE Six
DEFAULT AND REMEDIES
SECTION 6.01...Events of Default 54
SECTION 6.02...Acceleration 55
SECTION 6.03...Other Remedies 56
SECTION 6.04...Waiver of Past Default 56
SECTION 6.05...Control by Majority 57
SECTION 6.06...Limitation on Suits 57
SECTION 6.07...Rights of Holders to Receive Payment 57
SECTION 6.08...Collection Suit by Trustee 57
SECTION 6.09...Trustee May File Proofs of Claim 58
SECTION 6.10...Priorities 58
SECTION 6.11...Undertaking for Costs 58
SECTION 6.12...Notice of Defaults 59
ARTICLE Seven
TRUSTEE
SECTION 7.01...Duties of Trustee 59
SECTION 7.02...Certain Rights of Trustee 60
SECTION 7.03...Individual Rights of Trustee 61
SECTION 7.04...Trustee's Disclaimer 61
SECTION 7.05...Notice of Defaults 61
SECTION 7.06...Reports by Trustee to Holders of the
Securities 61
SECTION 7.07...Compensation and Indemnity 62
SECTION 7.08...Replacement of Trustee 63
SECTION 7.09...Successor Trustee by Merger, Etc 63
SECTION 7.10...Eligibility; Disqualification 64
SECTION 7.11...Preferential Collection of Claims
Against Company 64
ARTICLE Eight
SUBORDINATION OF SECURITIES
SECTION 8.01...Securities Subordinated to Senior Debt 64
SECTION 8.02...No Payment on Securities in Certain
Circumstances 65
SECTION 8.03...Payment Over of Proceeds upon
Dissolution, etc 66
SECTION 8.04...Subrogation 67
SECTION 8.05...Obligations of the Company Unconditional 67
SECTION 8.06...Notice to Trustee 68
SECTION 8.07...Reliance on Judicial Order or
Certificate of Liquidating Agent 68
SECTION 8.08...Trustee's Relation to Senior Debt 68
SECTION 8.09...Subordination Rights Not Impaired by
Acts or Omissions of the Company or
Holders of Senior Debt 69
SECTION 8.10...Holders Authorize Trustee to Effectuate
Subordination of Securities 69
SECTION 8.11...This Article Not to Prevent Events of
Default 69
SECTION 8.12...Trustee's Compensation Not Prejudiced 70
SECTION 8.13...No Waiver of Subordination Provisions 70
SECTION 8.14...Subordination Provisions Not Applicable
to Money Held in Trust for Holders 70
SECTION 8.15...Amendments 70
ARTICLE Nine
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01...Termination of the Company's Obligations 70
SECTION 9.02...Legal Defeasance and Covenant Defeasance 72
SECTION 9.03...Conditions to Legal Defeasance or
Covenant Defeasance 73
SECTION 9.04...Application of Trust Money 74
SECTION 9.05...Repayment to Company 75
SECTION 9.06...Reinstatement 75
ARTICLE Ten
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01...Without Consent of Holders 75
SECTION 10.02...With Consent of Holders 76
SECTION 10.03...Compliance with Trust Indenture Act 77
SECTION 10.04...Revocation and Effect of Consents 77
SECTION 10.05...Notation on or Exchange of Securities 78
SECTION 10.06...Trustee to Sign Amendments, etc 78
ARTICLE Eleven
GUARANTEE
SECTION 11.01...Unconditional Guarantee 78
SECTION 11.02...Severability 79
SECTION 11.03...Limitation of Guarantor's Liability 79
SECTION 11.04...Execution of Guarantee 79
SECTION 11.05...Subordination of Subrogation and
Other Rights 79
SECTION 11.06...Release of Guarantor from Subsidiary
Guarantee 80
ARTICLE Twelve
SUBORDINATION OF GUARANTEE
SECTION 12.01...Guarantee Obligations Subordinated to
Senior Debt 80
SECTION 12.02...Payment Over of Proceeds upon Dissolution,
etc.; No Payment in Certain Circumstances 80
SECTION 12.03...Subrogation 82
SECTION 12.04...Obligations of Guarantors Unconditional 83
SECTION 12.05...Notice to Trustee 83
SECTION 12.06...Reliance on Judicial Order or Certificate
of Liquidating Agent 84
SECTION 12.07...Trustee's Relation to Senior Debt of a
Guarantor 84
SECTION 12.08...Subordination Rights Not Impaired by Acts
or Omissions of Holders of Senior Debt 84
SECTION 12.09...Holders Authorize Trustee To Effectuate
Subordination of Guarantee 85
SECTION 12.10...This Article Not to Prevent Events
of Default 85
SECTION 12.11...Trustee's Compensation Not Prejudiced 85
SECTION 12.12...No Waiver of Guarantee Subordination
Provisions 85
SECTION 12.13...Amendments 85
ARTICLE Thirteen
MISCELLANEOUS
SECTION 13.01...Trust Indenture Act Controls 86
SECTION 13.02...Notices 86
SECTION 13.03...Communications by Holders with Other
Holders 87
SECTION 13.04...Certificate and Opinion as to Conditions
Precedent 87
SECTION 13.05...Statements Required in Certificate or
Opinion 87
SECTION 13.06...Rules by Trustee, Paying Agent, Xxxxxxxxx 00
SECTION 13.07...Governing Law 88
SECTION 13.08...No Recourse Against Others 88
SECTION 13.09...Successors 88
SECTION 13.10...Counterpart Originals 88
SECTION 13.11...Severability 88
SECTION 13.12...No Adverse Interpretation of Other
Agreements 89
SECTION 13.13...Legal Holidays 89
SECTION 13.14...No Personal Liability of Directors,
Officers, Employees and Stockholders 89
SIGNATURES........................................... S-1
EXHIBIT A Form of Series A Security........................ A-1
EXHIBIT B Form of Series B Security........................ B-1
EXHIBIT C Form of Legend for Global Securities............. C-1
EXHIBIT D Form of Transfer Certificate..................... D-1
EXHIBIT E Form of Transfer Certificate for Institutional
Accredited Investors............................. E-1
EXHIBIT F Form of Supplemental Indenture................... F-1
EXHIBIT G Form of Officer's Certificate.................... G-1
-----------------
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part
of the Indenture.
INDENTURE dated as of June 17, 1999, among FALCON PRODUCTS, INC., a
Delaware corporation (the "Company" or "Falcon"), as issuer, the GUARANTORS
named herein and THE BANK OF NEW YORK, a New York banking corporation, as
trustee (the "Trustee").
The Securities are being sold in connection with the acquisition by the
Company of Xxxxxx Xxxxxxxx Industries, Inc., a Delaware corporation ("Shelby"),
pursuant to that certain Agreement and Plan of Merger (the "Merger Agreement"),
dated May 5, 1999, among the Company, Shelby and SY Acquisition, Inc., a
Delaware corporation and wholly-owned subsidiary of the Company ("SY
Acquisition"). The Merger Agreement provides for the merger (the "Merger") of SY
Acquisition with and into Shelby, with Shelby surviving the Merger.
The Company has executed that certain Purchase Agreement, dated as of
June 14, 1999, by and among the Company, the guarantors listed therein and the
Initial Purchaser (the "Purchase Agreement"). The Company has also executed that
certain A/B Exchange Registration Rights Agreement, dated as of the date hereof,
by and among the Company, the guarantors listed therein and the Initial
Purchaser (the "Registration Rights Agreement"). As soon as practicable after
the consummation of the Merger, Falcon will cause Shelby and its Domestic
Subsidiaries to deliver a fully executed Supplemental Indenture substantially in
the form of Exhibit F attached hereto, guaranteeing the Obligations under the
Securities pursuant to the terms and conditions contained in this Indenture.
Each party hereto agrees as follows for the benefit of each other party
and for the equal and ratable benefit of the Holders of the Securities:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions
"Acceleration Notice" see Section 6.02.
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such
other Person is merged with or into or became a Subsidiary of such specified
Person, whether or not such Indebtedness is incurred in connection with, or in
contemplation of, such other Person merging with or into, or becoming a
Subsidiary of, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired
by such specified Person.
"Additional Securities" means, subject to the Company's compliance with
Sections 3 and 13, 11M% Senior Subordinated Notes due 2009 issued from time to
time after the Issue Date up to a maximum aggregate amount of $50,000,000 (other
than pursuant to Sections 2.06, 2.07, 3.06 and 4.05 of this Indenture and other
than Exchange Securities issued pursuant to the Exchange Offer).
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that beneficial ownership of 10% or more of the
Voting Stock of a Person shall be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" shall have correlative meanings.
"Affiliate Transaction" see Section 4.03.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Asset Sale" means:
(1) the sale, lease, conveyance or other disposition of any assets
or rights, other than sales of Cash Equivalents or inventory in the ordinary
course of business consistent with past practices; provided that the sale,
conveyance or other disposition of all or substantially all of the assets of the
Company and its Restricted Subsidiaries taken as a whole will be governed by the
provisions described under Section 4.14 and/or the provisions described above
under Article 5 and not by the provisions of Section 4.05; and
(2) the issuance of Equity Interests by any of the Company's
Restricted Subsidiaries or the sale of Equity Interests in any of its
Subsidiaries.
Notwithstanding the preceding, the following items shall not be deemed
to be Asset Sales:
(a) any single transaction or series of related transactions that:
(i) involves assets having a fair market value of less than $1.0 million; or
(ii) results in net proceeds to the Company and its Restricted Subsidiaries of
less than $1.0 million;
(b) a transfer of assets (i) between or among the Company and any
Guarantor or (ii) between or among a Restricted Subsidiary of the Company that
is not a Subsidiary Guarantor to another Restricted Subsidiary of the Company
that is not a Subsidiary Guarantor;
(c) an issuance of Equity Interests (i) by a Guarantor to the
Company or to another Guarantor or (ii) by a Restricted Subsidiary of the
Company that is not a Subsidiary Guarantor to another Restricted Subsidiary of
the Company that is not a Subsidiary Guarantor; and
(d) a Restricted Payment that is permitted by the covenant
described under Section 4.06.
"Attributable Debt" in respect of a sale and leaseback transaction
means, at the time of determination, the present value of the obligation of the
lessee for net rental payments during the remaining term of the lease included
in such sale and leaseback transaction including any period for which such lease
has been extended or may, at the option of the lessor, be extended. Such present
value shall be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP.
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal,
state or foreign law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person" (as such term is used in Section 13(d)(3)
of the Exchange Act), such "person" shall be deemed to have beneficial ownership
of all securities that such "person" has the right to acquire, whether such
right is currently exercisable or is exercisable only upon the occurrence of a
subsequent condition.
"Board of Directors" means, as to any Person, the board of directors of
such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means a day that is not a Saturday, a Sunday or a day on
which banking institutions in New York, New York are not required to be open.
"Calculation Date" has the meaning ascribed such term in the definition
of "Fixed Charge Coverage Ratio" in this Section 1.01.
"Capital Lease Obligation" means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at that time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means (i) marketable direct obligations issued by,
or unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Corporation ("S&P") or Xxxxx'x
Investors Service, Inc. ("Moody's"); (iii) commercial paper maturing no more
than one year from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1 from Moody's; (iv)
certificates of deposit or bankers' acceptances maturing within one year from
the date of acquisition thereof issued by any bank organized under the laws of
the United States of America or any state thereof or the District of Columbia or
any U.S. branch of a foreign bank having at the date of acquisition thereof
combined capital and surplus of not less than $250.0 million; (v) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (iv) above; and (vi) investments in money
market funds with assets of $100.0 million or greater which invest substantially
all their assets in securities of the types described in clauses (i) through (v)
above.
"Change of Control" means the occurrence of any of the following:
(1) the 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 assets of the Company and its Subsidiaries
taken as a whole to any "person" (as such term is used in Section 13(d)(3) of
the Exchange Act);
(2) the adoption of a plan relating to the liquidation or
dissolution of the Company;
(3) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
"person" (as defined above), becomes the Beneficial Owner, directly or
indirectly, of more than 35% of the Voting Stock of the Company, measured by
voting power rather than number of shares;
(4) the first day on which a majority of the members of the Board
of Directors of the Company are not Continuing Directors; or
(5) the Company consolidates with, or merges with or into, any
Person, or any Person consolidates with, or merges with or into, the Company, in
any such event pursuant to a transaction in which any of the outstanding Voting
Stock of the Company 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 (other than Disqualified 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 Offer" see Section 4.14(a).
"Change of Control Payment Date" see Section 4.14(c).
"Company" has the meaning ascribed to such term in the introductory
paragraphs to this Indenture.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period plus:
(1) an amount equal to any extraordinary loss plus any net loss
realized in connection with an Asset Sale, to the extent such losses were
deducted in computing such Consolidated Net Income; plus
(2) provision for taxes based on income or profits of such Person
and its Restricted Subsidiaries for such period, to the extent that such
provision for taxes was deducted in computing such Consolidated Net Income; plus
(3) consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued and whether or not
capitalized (including, without limitation, amortization of debt issuance costs
and original issue discount, non-cash interest payments, the interest component
of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, imputed interest with respect to
Attributable Debt, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance Financings, and net payments,
if any, pursuant to Hedging Obligations), to the extent that any such expense
was deducted in computing such Consolidated Net Income; plus
(4) depreciation, amortization (including amortization of goodwill
and other intangibles but excluding amortization of prepaid cash expenses that
were paid in a prior period) and other non-cash expenses (excluding any such
non-cash expense to the extent that it represents an accrual of or reserve for
cash expenses in any future period or amortization of a prepaid cash expense
that was paid in a prior period) of such Person and its Restricted Subsidiaries
for such period to the extent that such depreciation, amortization and other
non-cash expenses were deducted in computing such Consolidated Net Income; minus
(5) non-cash items increasing such Consolidated Net Income for such
period, other than items that were accrued in the ordinary course of business,
in each case, on a consolidated basis and determined in accordance with GAAP.
Notwithstanding the preceding, the provision for taxes based on the
income or profits of, and the depreciation and amortization and other non-cash
charges of, a Restricted Subsidiary of the Company shall be added to
Consolidated Net Income to compute Consolidated Cash Flow of the Company only to
the extent that a corresponding amount would be permitted at the date of
determination to be dividended to the Company by such Restricted Subsidiary
without prior approval (that has not been obtained), pursuant to the terms of
its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to that Subsidiary or
its stockholders.
"Consolidated Net Income" means, with respect to any specified Person
for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided that:
(1) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the specified Person or a Wholly Owned Restricted
Subsidiary thereof;
(2) the Net Income of any Restricted Subsidiary shall be excluded
to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is not at the
date of determination permitted without any prior governmental approval (that
has not been obtained) or, directly or indirectly, by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to that Restricted Subsidiary or its
stockholders;
(3) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall be
excluded;
(4) the Net Income (but not loss) of any Unrestricted Subsidiary
shall be excluded, whether or not distributed to the specified Person or one of
its Subsidiaries; and
(5) the cumulative effect of a change in accounting principles
shall be excluded. "Consolidated Net Worth" means, with respect to any Person as
of any date, the sum of:
(1) the consolidated equity of the common stockholders of such
Person and its consolidated Subsidiaries as of such date; plus
(2) the respective amounts reported on such Person's balance sheet
as of such date with respect to any series of preferred stock (other than
Disqualified Stock) that by its terms is not entitled to the payment of
dividends unless such dividends may be declared and paid only out of net
earnings in respect of the year of such declaration and payment, but only to the
extent of any cash received by such Person upon issuance of such preferred
stock.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who:
(1) was a member of such Board of Directors on the Issue Date; or
(2) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing Directors who were
members of such Board at the time of such nomination or election.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee, at which at any particular time its corporate trust business shall
be administered, which office at the date hereof is located at 000 Xxxxxxx
Xxxxxx, Xxxxx 21 West, New York, New York 10286, except that, with respect to
presentation of Securities for payment or for registration of transfer or
exchange, such term shall mean the office or agency of the Trustee at which, at
any particular time, its corporate agency business shall be conducted.
"Covenant Defeasance" has the meaning provided in Section 9.02(c).
"Credit Agreement" means that certain Credit Agreement, dated as of
June 17, 1999, by and among the Company, DLJ Capital Funding, Inc., as
Administrative Agent, and the other parties thereto, providing for revolving
credit and term loans, including any related notes, guarantees, collateral
documents, instruments and agreements executed in connection therewith, and in
each case as amended, modified, supplemented, extended, renewed, restated,
refunded, replaced or refinanced from time to time, including any amendment,
modification, supplement, extension, renewal, restatement, refunding,
replacement or refinancing that increases the amount borrowable thereunder
provided such Indebtedness could be incurred hereunder or alters the maturity
thereof.
"Credit Facilities" means, with respect to the Company or any
Guarantor, one or more debt facilities or commercial paper facilities,
including, without limitation, the Credit Agreement, in each case with banks or
other institutional lenders providing for revolving credit loans, term loans,
receivables financing (including through the sale of receivables to such lenders
or to special purpose entities formed to borrow from such lenders against such
receivables) or letters of credit, in each case, as amended, restated, modified,
renewed, refunded, replaced or refinanced in whole or in part from time to time.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Defeasance Trust Payment" see Section 8.02.
"Depositary" means, with respect to the Securities issued in the form
of one or more Global Securities, DTC or another Person designated as Depositary
by the Company, which must be a clearing agency registered under the Exchange
Act.
"Designated Senior Debt" means (1) Obligations under the Credit
Agreement and (2) any other Senior Debt permitted under Section 4.04, the
principal amount of which is $25.0 million or more and that has been designated
by the Company as "Designated Senior Debt."
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is 91 days after the
date on which the Securities mature. Notwithstanding the preceding sentence, any
Capital Stock that would constitute Disqualified Stock solely because the
holders thereof have the right to require the Company to repurchase such Capital
Stock upon the occurrence of a change of control or an asset sale shall not
constitute Disqualified Stock if the terms of such Capital Stock provide that
the Company may not repurchase or redeem any such Capital Stock pursuant to such
provisions unless such repurchase or redemption complies with the covenant
described under Section 4.06.
"Domestic Subsidiary" means a Subsidiary that is organized under the
laws of the United States, any state thereof or the District of Columbia.
"DTC" means The Depository Trust Company.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Event of Default" see Section 6.01.
"Excess Proceeds" see Section 4.05(A).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any successor statute or statutes thereto.
"Exchange Offer" has the meaning provided in the Registration Rights
Agreement.
"Exchange Securities" means the 11M% Senior Subordinated Notes due
2009, Series B, to be issued in exchange for the Initial Securities pursuant to
the Registration Rights Agreement.
"Existing Indebtedness" means the Indebtedness of the Company and its
Restricted Subsidiaries in existence on the Issue Date, until such amounts are
repaid.
"fair market value" means, with respect to any asset or property, the
price which could be negotiated in an arm's-length, free market transaction, for
cash, between a willing seller and a willing and able buyer, neither of whom is
under undue pressure or compulsion to complete the transaction. Fair market
value shall be determined by the Board of Directors of the Company acting in
good faith and shall be evidenced by a Board Resolution of the Board of
Directors of the Company delivered to the Trustee.
"Final Maturity Date" means June 15, 2009.
"Fixed Charges" means, with respect to any Person for any period, the
sum, without duplication, of:
(1) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued, including,
without limitation, amortization of debt issuance costs and original issue
discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capital Lease Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers' acceptance financings, and net payments, if any, pursuant
to Hedging Obligations; plus
(2) the consolidated interest of such Person and its Restricted
Subsidiaries that was capitalized during such period; plus
(3) any interest expense on Indebtedness of another Person that is
Guaranteed by such Person or one of its Restricted Subsidiaries or secured by a
Lien on assets of such Person or one of its Restricted Subsidiaries, whether or
not such Guarantee or Lien is called upon; plus
(4) the product of (a) all dividend payments, whether or not in
cash, on any series of preferred stock of such Person or any of its Restricted
Subsidiaries, other than dividend payments on Equity Interests payable solely in
Equity Interests of the Company (other than Disqualified Stock) or to the
Company or a Restricted Subsidiary of the Company, times (b) a fraction, the
numerator of which is one and the denominator of which is one minus the then
current combined federal, state and local statutory tax rate of such Person,
expressed as a decimal, in each case, on a consolidated basis and in accordance
with GAAP.
"Fixed Charge Coverage Ratio" means with respect to any specified
Person for any period, the ratio of the Consolidated Cash Flow of such Person
and its Restricted Subsidiaries for such period to the Fixed Charges of such
Person for such period. In the event that the specified Person or any of its
Restricted Subsidiaries incurs, assumes, Guarantees or redeems any Indebtedness
(other than revolving credit borrowings) or issues or redeems preferred stock
subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated but prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the "Calculation Date"),
then the Fixed Charge Coverage Ratio shall be calculated by giving pro forma
effect to such incurrence, assumption, Guarantee or redemption of Indebtedness,
or such issuance or redemption of preferred stock, as if the same had occurred
at the beginning of the applicable four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge Coverage
Ratio:
(1) acquisitions that have been made by the specified Person or any
of its Restricted Subsidiaries, including through mergers or consolidations and
including any related financing transactions, during the four-quarter 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 four-quarter
reference period and Consolidated Cash Flow for such reference period shall be
calculated without giving effect to clause (3) of the proviso set forth in the
definition of Consolidated Net Income;
(2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, shall be excluded; and
(3) the Fixed Charges attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses disposed of
prior to the Calculation Date, shall be excluded, but only to the extent that
the obligations giving rise to such Fixed Charges will not be obligations of the
specified Person or any of its Restricted Subsidiaries following the Calculation
Date.
For the purpose of this definition, whenever pro forma effect is to be
given to an acquisition of assets, the amount of income or earnings relating
thereto and the amount of Fixed Charges associated with any Indebtedness
Incurred in connection therewith, or any other calculation under this
definition, the pro forma calculations will be determined in good faith by a
responsible financial or accounting officer of the Company (including pro forma
expense and cost reductions calculated on a basis consistent with Regulation S-X
under the Securities Act). If any Indebtedness bears a floating rate of interest
and is being given pro forma effect, the interest expense on such Indebtedness
will be calculated as if the rate in effect on the date of determination had
been the applicable rate for the entire period (taking into account any Interest
Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement
has a remaining term in excess of 12 months).
"Foreign Subsidiary" means any Restricted Subsidiary that was organized
under the laws of a jurisdiction outside the United States and substantially all
of whose assets are located and business is conducted outside of the United
States.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"Global Securities" means one or more Reg. S Global Securities and 144A
Global Securities.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged and
which have a remaining weighted average life to maturity of not less than one
year from the date of investment.
"guarantee" means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness.
"Guarantee" means the guarantee of the Obligations of the Company with
respect to the Securities by each Guarantor pursuant to the terms of this
Indenture, a form of which is attached hereto as part of Exhibits A and B. When
used as a verb, "Guarantee" shall have a corresponding meaning.
"Guarantors" means each of:
(1) the Company's Domestic Subsidiaries; and
(2) any other subsidiary that executes a Subsidiary Guarantee; and
their respective successors and assigns.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under:
(1) foreign currency exchange agreements, interest rate swap
agreements, interest rate cap agreements and interest rate collar agreements;
and
(2) other agreements or arrangements designed to protect such
Person against fluctuations in interest rates or currency exchange rates.
"Holder" means the registered holder of any Security.
"incur" see Section 4.04.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement agreements in respect thereof);
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations;
(5) representing the balance deferred and unpaid of the purchase
price of any property, except any such balance that constitutes an accrued
expense or trade payable; or
(6) representing any Hedging Obligations, if and to the extent any
of the preceding items (other than letters of credit and Hedging Obligations)
would appear as a liability upon a balance sheet of the specified Person
prepared in accordance with GAAP. In addition, the term "Indebtedness" includes
all Indebtedness of others secured by a Lien on any asset of the specified
Person (whether or not such Indebtedness is assumed by the specified Person)
and, to the extent not otherwise included, the Guarantee by such Person of any
indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date shall be:
(1) the accreted value thereof, in the case of any Indebtedness
issued with original issue discount; and
(2) the principal amount thereof in the case of any other
Indebtedness. "Indenture" means this Indenture, as amended or supplemented from
time to time. "Initial Purchaser" means Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation.
"Initial Securities" means the 11M% Senior Subordinated Notes due
2009, Series A, of the Company.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Interest Payment Date" means each semiannual interest payment date on
June 15 and December 15 of each year, commencing December 15, 1999.
"Interest Record Date" for the interest payable on any Interest Payment
Date (except a date for payment of defaulted interest) means the June 1 or
December 1 (whether or not a Business Day), as the case may be, immediately
preceding such Interest Payment Date.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
If the Company or any Restricted Subsidiary of the Company sells or otherwise
disposes of any Equity Interests of any direct or indirect Restricted Subsidiary
of the Company such that, after giving effect to any such sale or disposition,
such Person is no longer a Restricted Subsidiary of the Company, the Company
shall be deemed to have made an Investment on the date of any such sale or
disposition equal to the fair market value of the Equity Interests of such
Restricted Subsidiary not sold or disposed of in an amount determined as
provided in the penultimate paragraph of the covenant described under Section
4.06.
"Issue Date" means June 17, 1999, the date of first issuance of the
Securities.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"Liquidated Damages" has the meaning provided in the Registration
Rights Agreement.
"Merger" has the meaning ascribed to such term in the introductory
paragraphs to this Indenture.
"Merger Agreement" has the meaning ascribed to such term in the
introductory paragraph to this Indenture.
"Net Income" means, with respect to any Person, the net income (loss)
of such Person and its Restricted Subsidiaries, determined in accordance with
GAAP and before any reduction in respect of preferred stock dividends,
excluding, however:
(1) any gain (but not loss), together with any related provision
for taxes on such gain (but not loss), realized in connection with: (a) any
Asset Sale; or (b) the disposition of any securities by such Person or any of
its Restricted Subsidiaries or the extinguishment of any Indebtedness of such
Person or any of its Restricted Subsidiaries; and
(2) any extraordinary gain (but not loss), together with any
related provision for taxes on such extraordinary gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
the direct costs relating to such Asset Sale, including, without limitation,
legal, accounting and investment banking fees, and sales commissions, and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof, in each case after taking into account any available tax credits
or deductions and any tax sharing arrangements and amounts required to be
applied to the repayment of Indebtedness, other than Senior Debt, secured by a
Lien on the asset or assets that were the subject of such Asset Sale.
"Net Proceeds Offer" see Section 4.05(A).
"Net Proceeds Offer Amount" see Section 4.05(A).
"Net Proceeds Offer Payment Date" see Section 4.05(B).
"Net Proceeds Offer Trigger Date" means the 361st day after an Asset
Sale or such earlier date, if any, as the Board of Directors of the Company or
of such Restricted Subsidiary determines not to apply the Net Proceeds relating
to such Asset Sale as set forth in Section 4.05(A).
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither the Company nor any of its Restricted
Subsidiaries (a) provides credit support of any kind (including any undertaking,
agreement or instrument that would constitute Indebtedness), (b) is directly or
indirectly liable as a guarantor or otherwise, or (c) constitutes the lender;
(2) no default with respect to which (including any rights that the
holders thereof may have to take enforcement action against an Unrestricted
Subsidiary) would permit upon notice, lapse of time or both any holder of any
other Indebtedness (other than the Securities or the Credit Facilities) of the
Company or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity; and
(3) as to which the lenders have been notified in writing that they
will not have any recourse to the stock or assets of the Company or any of its
Restricted Subsidiaries.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering" means the offer and sale of the $100.0 million aggregate
principal amount of Initial Securities to the Initial Purchaser.
"Officer" of any Person means the Chairman of the Board, the President,
any Executive Vice President, Senior Vice President or Vice President (whether
or not such title is preceded or followed by one or more words or phrases), the
Treasurer or any Assistant Treasurer or the Secretary or any Assistant Secretary
of such Person.
"Officers' Certificate" of any Person means a certificate signed on
behalf of such Person or the general partner, in the case of a limited
partnership, or member, in the case of a limited liability company, of such
Person by the Chairman of the Board, the President, any Executive Vice
President, Senior Vice President or Vice President (whether or not such title is
preceded or followed by one or more words or phrases) and by the Treasurer or
any Assistant Treasurer or the Secretary or any Assistant Secretary of such
Person, that meets the requirements set forth in Sections 13.04 and 13.05 of
this Indenture.
"144A Global Security" means a permanent global security in registered
form representing the aggregate principal amount of Securities sold in reliance
on Rule 144A.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Company. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Participant" has the meaning set forth in Section 2.15(a).
"Paying Agent" has the meaning provided in Section 2.03.
"Payment Blockage Notice" see Section 8.02.
"Payment Blockage Period" see Section 8.02.
"Payment Default" has the meaning provided in Section 6.01(a).
"Permitted Business" means the manufacture, distribution and marketing
of furniture and related products.
"Permitted Indebtedness" means, without duplication, each of the
following:
(i) the incurrence by the Company and any Guarantor of Indebtedness
and letters of credit under one or more Credit Facilities; provided that the
aggregate principal amount of all Indebtedness and letters of credit of the
Company outstanding under all Credit Facilities after giving effect to such
incurrence (with letters of credit being deemed to have a principal amount equal
to the maximum potential liability of the Company and the Guarantors thereunder)
does not exceed an amount equal to $135.0 million less the aggregate amount
applied by the Company or any of its Subsidiaries since the Issue Date to
permanently repay Indebtedness (and, if any of such Indebtedness is revolving
credit Indebtedness, to reduce commitments with respect thereto) under a Credit
Facility as a result of asset dispositions;
(ii) the incurrence by the Company and its Subsidiaries of Existing
Indebtedness;
(iii) the incurrence by the Company and the Guarantors of
Indebtedness represented by the Securities in an aggregate principal amount of
$100.0 million at any time outstanding and the Subsidiary Guarantees;
(iv) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage
financings or purchase money obligations, in each case, incurred for the purpose
of financing all or any part of the purchase price or cost of construction or
improvement of property, plant or equipment used in the business of the Company
or such Restricted Subsidiary, in an aggregate principal amount not to exceed
$5.0 million at any time outstanding;
(v) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net
proceeds of which are used to refund, refinance or replace, Indebtedness (other
than intercompany Indebtedness) that was permitted by the Indenture to be
incurred under the first paragraph of this covenant or clauses (ii), (iii), (iv)
or (ix) of this paragraph;
(vi) the incurrence by the Company or any Guarantor of intercompany
Indebtedness between or among the Company and any of the Guarantors; provided,
however, that:
(a) such Indebtedness must be expressly subordinated to the prior
payment in full in cash of all Obligations with respect to the Securities, in
the case of the Company, or the Subsidiary Guarantee of such Guarantor, in the
case of a Guarantor; and
(b) (i) any subsequent issuance or transfer of Equity Interests
that results in any such Indebtedness being held by a Person other than the
Company or a Guarantor and (ii) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a Guarantor shall be
deemed, in each case, to constitute an incurrence of such Indebtedness by the
Company or any such Guarantor, as the case may be, that was not permitted by
this clause (vi);
(vii) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing
or hedging (a) interest rate risk with respect to any floating rate Indebtedness
or (b) foreign currency valuation risk; in either case, in respect of
Indebtedness that is permitted by the terms of the Indenture to be outstanding;
the guarantee by the Company or any of the Guarantors of
Indebtedness of the Company or a Restricted Subsidiary of the Company that was
permitted to be incurred by another provision of this covenant;
the incurrence by the Company or any of its Restricted Subsidiaries
of additional Indebtedness in an aggregate principal amount (or accreted value,
as applicable) at any time outstanding, including all Permitted Refinancing
Indebtedness incurred to refund, refinance or replace any Indebtedness incurred
pursuant to this clause (ix), not to exceed $7.5 million;
Indebtedness of the Company's Foreign Subsidiaries in an amount not
to exceed $7.5 million at any time outstanding; and
the accrual of interest, accretion or amortization of original
issue discount, the payment of interest on any Indebtedness in the form of
additional Indebtedness with the same terms, and the payment of dividends on
Disqualified Stock in the form of additional shares of the same class of
Disqualified Stock; provided, in each such case, that the amount thereof is
included in Fixed Charges of the Company as accrued.
"Permitted Investments" means:
(1) any Investment in the Company or in a Wholly Owned Restricted
Subsidiary that is also a Guarantor;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Restricted Subsidiary of
the Company in a Person, if as a result of such Investment:
(a) such Person becomes a Guarantor or
(b) such Person is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Guarantor;
(4) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in compliance
with the covenant described under Section 4.05;
(5) any acquisition of assets solely in exchange for the issuance
of Equity Interests (other than Disqualified Stock) of the Company;
(6) Hedging Obligations;
(7) other Investments in any Person engaged in a Permitted Business
having an aggregate fair market value (measured on the date each such Investment
was made and without giving effect to subsequent changes in value), when taken
together with all other Investments made pursuant to this clause (7) since the
Issue Date, not to exceed $5.0 million;
(8) other Investments in any Foreign Subsidiary having an aggregate
fair market value (measured on the date each such Investment was made and
without giving effect to subsequent changes in value), when taken together with
all other Investments made pursuant to this clause (8) since the Issue Date, not
to exceed $2.5 million;
(9) Investments in prepaid expenses, negotiable instruments held
for collection and lease, utility and workers' compensation, performance and
other similar deposits;
(10) accounts receivable and commercially reasonable advances to
customers in the ordinary course of business and extensions of trade credit; and
(11) any Investment acquired by the Company or any of its
Restricted Subsidiaries (a) in exchange for any other Investment or accounts
receivable held by the Company or any such Restricted Subsidiary in connection
with or as a result of a bankruptcy, workout, reorganization or recapitalization
of the issuer of such other Investment or accounts receivable or (b) as a result
of a foreclosure by the Company or any of its Restricted Subsidiaries with
respect to any secured Investment or other transfer of title with respect to any
secured Investment in default.
"Permitted Junior Securities" means:
(1) Equity Interests in the Company; or
(2) debt securities of the Company that are subordinated to all
Senior Debt and any debt securities issued in exchange for Senior Debt to the
same extent as, or to a greater extent than, the Securities and the Subsidiary
Guarantees are subordinated to Senior Debt pursuant to Article Twelve, that have
a final maturity date and a weighted average life to maturity which is the same
as or greater than, the Securities and that are not secured by a Lien on any
assets.
"Permitted Liens" means:
(1) Liens on the assets of the Company and any Guarantor securing
Indebtedness and other Obligations under the Credit Facilities that were
permitted by the terms of Section 4.18 to be incurred;
(2) Liens in favor of the Company or the Guarantors;
(3) Liens on property of a Person existing at the time such Person
is merged with or into or consolidated with the Company or any Restricted
Subsidiary of the Company; provided that such Liens were in existence prior to
the contemplation of such merger or consolidation and do not extend to any
assets other than those of the Person merged into or consolidated with the
Company or the Restricted Subsidiary;
(4) Liens on property existing at the time of acquisition thereof
by the Company or any Restricted Subsidiary of the Company, provided that such
Liens were in existence prior to the contemplation of such acquisition;
(5) Liens to secure the performance of statutory obligations,
surety or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business;
(6) Liens to secure Indebtedness (including Capital Lease
Obligations) that are otherwise allowed as Permitted Debt and covering only the
assets acquired with such Indebtedness;
(7) Liens existing on the Issue Date;
(8) Liens on Assets of the Company and of the Guarantors to secure
Senior Debt of the Company or any such Guarantors that was permitted by Section
4.18;
(9) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded, provided
that any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor; and
(10) Liens incurred in the ordinary course of business of the
Company or any Restricted Subsidiary of the Company with respect to obligations
that do not exceed $5.0 million at any one time outstanding.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that:
(1) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount of (or
accreted value, if applicable), plus accrued interest on, the Indebtedness so
extended, refinanced, renewed, replaced, defeased or refunded (plus the amount
of premiums, prepayments, penalties and reasonable expenses incurred in
connection therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity
date equal to or later than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the
Securities, such Permitted Refinancing Indebtedness has a final maturity date
later than the final maturity date of, and is subordinated in right of payment
to, the Securities on terms at least as favorable to the Holders of Securities
as those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; and
(4) such Indebtedness is incurred either by the Company or by the
Restricted Subsidiary who is the obligor on the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded.
"Person" means an individual, partnership, corporation, unincorporated
organization, limited liability company, trust or joint venture, or a
governmental agency or political subdivision thereof.
"Physical Securities" means one or more certificated Securities in
registered form.
"principal" of a debt security means the principal of the security,
plus, when appropriate, the premium, if any, on the security.
"Private Placement Legend" means the legend initially set forth on the
Initial Securities in the form set forth on Exhibit A hereto.
"Purchase Agreement" has the meaning ascribed to such term in the
introductory paragraphs to this Indenture.
"Public Equity Offering" means any underwritten public offering of
common stock of the Company in which the gross proceeds to the Company are at
least $35.0 million.
"Qualified Institutional Buyer" or "QIB" means a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act.
"Redemption Date" when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture.
"redemption price" when used with respect to any Security to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
as set forth in the form of Security annexed hereto as Exhibit A.
"Reg. S Global Security" means a global security in registered form
representing the aggregate principal amount of Securities sold pursuant to
Regulation S under the Securities Act.
"Registrar" see Section 2.03.
"Registration" means a registered exchange offer for the Securities by
the Company or other registration of the Securities under the Securities Act
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
"Registration Date" see Section 4.12.
"Registration Rights Agreement" has the meaning ascribed to such term
in the introductory paragraphs to this Indenture.
"Representative" means the indenture trustee or other trustee, agent or
representative in respect of any Designated Senior Debt; provided that if, and
for so long as, any Designated Senior Debt lacks such a representative, then the
Representative for such Designated Senior Debt shall at all times constitute the
holders of a majority in outstanding principal amount of such Designated Senior
Debt in respect of any Designated Senior Debt.
"Responsible Officer" shall mean, 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 Investment" means an Investment other than a Permitted
Investment.
"Restricted Payment" see Section 4.06.
"Restricted Security" has the meaning assigned to such term in Rule
144(a)(3) under the Securities Act; provided, however, that the Trustee shall be
entitled to request and conclusively rely on an Opinion of Counsel with respect
to whether or not any Security constitutes a Restricted Security.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"S&P" means Standard and Poor's Corporation.
"SEC" or "Commission" means the Securities and Exchange Commission.
"Securities" means, collectively, the Initial Securities, the Transfer
Restricted Securities and the Unrestricted Securities treated as a single class
of securities, as amended or supplemented from time to time in accordance with
the terms of this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute or statutes thereto.
"Senior Debt" means:
(1) all Indebtedness and all Obligations (including without
limitation interest accruing after filing of a petition in bankruptcy whether or
not such interest is an allowable claim in such proceeding) of the Company or
its Subsidiaries, including without limitation any Guarantees of such
Obligations, pursuant to the Credit Facilities and all Hedging Obligations with
respect thereto;
(2) any other Indebtedness permitted to be incurred by the Company
or the Guarantors hereunder, unless the instrument under which such Indebtedness
is incurred expressly provides that it is on a parity with or subordinated in
right of payment to the Securities; and
(3) all Obligations with respect to the items listed in the
preceding clauses (1) and (2).
Notwithstanding anything to the contrary in the preceding clauses (1),
(2) and (3), Senior Debt will not include:
(a) any liability for federal, state, local or other taxes owed or
owing by the Company;
(b) any Indebtedness of the Company to any of its Subsidiaries or
other Affiliates; (c) any trade payables; or (d) any Indebtedness that is
incurred in violation of the covenants contained herein.
"Shelf Registration Statement" has the meaning provided in the
Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Exchange Act, as such Regulation is in effect on the
date hereof.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subordinated Indebtedness" means any Indebtedness of the Company
(whether outstanding on the Issue Date or thereafter incurred) which is
subordinate or junior in right of payment to the Securities pursuant to a
written agreement.
"Subsidiary" means, with respect to any Person:
(1) any corporation, association or other business entity of which
more than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other Subsidiaries
of that Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or one or more Subsidiaries
of such Person (or any combination thereof).
"Subsidiary Guarantee" means (a) that certain Subsidiary Guarantee
executed by the Guarantors in accordance with the delivery of the Securities and
(b) any supplemental indenture executed by Restricted Subsidiaries of the
Company pursuant to which such Subsidiaries became Guarantors of the Company's
Obligations under the Securities.
"TIA" means the Trust Indenture Act of 1939, as amended, as in effect
on the date of this Indenture (except as provided in Section 10.03) until such
time as this Indenture is qualified under the TIA, and thereafter as in effect
on the date on which this Indenture is qualified under the TIA.
"Tender Offer" has the meaning provided in the Credit Agreement.
"Transfer Restricted Securities" means the Transfer Restricted
Securities as defined in the Registration Rights Agreement and any similar
securities issued in compliance with Section 2.02 in accordance with any other
registration rights agreement.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
this Indenture and thereafter means such successor.
"Trust Officer" means any officer within Corporate Trust Administration
(or any successor group of the Trustee), and also means, with respect to a
particular corporate trust matter, any other officer to whom such trust matter
is referred because of his knowledge of and familiarity with the particular
subject, or in the case of a successor trustee, an officer assigned to the
department, division or group performing the corporation trust work of such
successor and assigned to administer this Indenture.
"United States Government Obligations" means direct non-callable
obligations of the United States for the payment of which the full faith and
credit of the United States is pledged.
"United States Legal Tender" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
"Unrestricted Securities" means one or more Securities that do not and
are not required to bear the Private Placement Legend in the form set forth in
Exhibit A hereto, including, without limitation, the Exchange Securities and any
Securities registered under the Securities Act pursuant to and in accordance
with the Registration Rights Agreement.
"Unrestricted Subsidiary" means any Subsidiary of the Company that is
designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a
Board Resolution, but only to the extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the Company
unless the terms of any such agreement, contract, arrangement or understanding
are no less favorable to the Company or such Restricted Subsidiary than those
that might be obtained at the time from Persons who are not Affiliates of the
Company;
(3) is a Person with respect to which neither the Company nor any
of its Restricted Subsidiaries has any direct or indirect obligation (a) to
subscribe for additional Equity Interests or (b) to maintain or preserve such
Person's financial condition or to cause such Person to achieve any specified
levels of operating results;
(4) has not guaranteed or otherwise directly or indirectly provided
credit support for any Indebtedness of the Company or any of its Restricted
Subsidiaries; and
(5) has at least one director on its board of directors that is not
a director or executive officer of the Company or any of its Restricted
Subsidiaries and has at least one executive officer that is not a director or
executive officer of the Company or any of its Restricted Subsidiaries.
Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
preceding conditions and was permitted by the covenant described under Section
4.06. If, at any time, any Unrestricted Subsidiary would fail to meet the
preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease
to be an Unrestricted Subsidiary and any Indebtedness of such Subsidiary shall
be deemed to be incurred by a Restricted Subsidiary of the Company as of such
date and, if such Indebtedness is not permitted to be incurred as of such date
under the covenant described under Section 4.04, the Company shall be in default
of such covenant. The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that such designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall only be permitted if (1) such
Indebtedness is permitted under the covenant described under Section 4.04,
calculated on a pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period; and (2) no Default or Event of
Default would be in existence following such designation.
"Voting Stock" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount
of each then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in respect
thereof, by (b) the number of years (calculated to the nearest one-twelfth) that
will elapse between such date and the making of such payment; by
(2) the then outstanding principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person and/or by one or more Wholly Owned Restricted
Subsidiaries of such Person.
Section 1.02 Incorporation by Reference of Trust Indenture Act
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities and the Guarantees.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company, a Guarantor or
any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
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 generally accepted accounting principles in
effect from time to time, and any other reference in this Indenture to
"generally accepted accounting principles" refers to GAAP; (3) "or" is not
exclusive; (4) words in the singular include the plural, and words in the plural
include the singular; (5) provisions apply to successive events and
transactions; (6) references to sections of or rules under the Securities Act,
the Exchange Act, the TIA or any other applicable law shall be deemed to include
substitute, replacement of successor sections or rules adopted by the SEC from
time to time; (7) references to any contract, instrument or agreement shall be
deemed to include any amendments, modifications or supplements thereto; and (8)
"herein," "hereof" and other words of similar import refer to this Indenture as
a whole and not to any particular Article, Section or other subdivision.
ARTICLE TWO
THE SECURITIES
Section 2.01 Form and Dating
(1) General. The Initial Securities and the Trustee's certificate
of authentication thereof shall be substantially in the form of Exhibit A
hereto, which is hereby incorporated in and expressly made a part of this
Indenture. The Exchange Securities and the Trustee's certificate of
authentication thereof shall be substantially in the form of Exhibit B hereto,
which is hereby incorporated in and expressly made a part of this Indenture. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage. The Company shall approve the forms of the Securities
and any notation, legend or endorsement on them. Each Security shall be dated
the date of its issuance and shall show the date of its authentication. The
Securities shall be in denominations of $1,000 and integral multiples thereof.
1. The terms and provisions contained in the Securities shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company, the Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of the Securities or Subsidiary Guarantee
conflicts with the express provisions of this Indenture, the provisions of this
Indenture shall govern and be controlling. Global Securities shall bear the
legend set forth in Exhibit C hereto. The aggregate principal amount of the
Global Securities may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for the Depositary, as
hereinafter provided.
(2) Global Securities. Each Global Security shall represent such of
the outstanding Exchange Securities as shall be specified therein and each shall
provide that it shall represent the aggregate principal amount of outstanding
Exchange Securities from time to time endorsed thereon and that the aggregate
principal amount of outstanding Exchange Securities represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Security to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Exchange
Securities represented thereby shall be made by the Trustee or the Custodian, at
the direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06 hereof.
Section 2.02 Execution and Authentication
One Officer shall sign the Securities of the Company by manual or
facsimile signature. If such Officer whose signature is on a Security was an
Officer at the time of such execution but no longer holds that office at the
time the Trustee authenticates the Security, the Security shall be valid
nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. Such
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture. A Security shall be dated the date of its authentication.
The Trustee shall authenticate (i) Initial Securities issued by Falcon
for original issue in an aggregate principal amount not to exceed $150.0 million
in one or more series; provided that the aggregate principal amount of Initial
Securities on the Issue Date shall not exceed $100.0 million; and provided
further that the Company complies with Section 4.04, (ii) upon cancellation of
the Initial Securities issued by Falcon, Securities issued by Falcon for
original issue in an aggregate amount not to exceed $150.0 million in one or
more series; provided that the aggregate principal amount of Exchange Securities
on the date of exchange of Initial Securities to Exchange Securities shall not
exceed $100.0 million, and provided further that the Company complies with
Section 4.04, (iii) Transfer Restricted Securities from time to time only in
exchange for a like principal amount of the same type of Initial Securities and
(iv) Unrestricted Securities from time to time (A) in exchange for a like
principal amount of the same type of Initial Securities or a like principal
amount of the same type of Transfer Restricted Securities or (B) as the Company
may determine in accordance with this Indenture, in each case upon a written
order of the Company in the form of an Officers' Certificate. Each such written
order shall specify the amount of and the type of Securities to be authenticated
and the date on which the Securities are to be authenticated, whether the
Securities are to be Initial Securities, Exchange Securities, Transfer
Restricted Securities or Unrestricted Securities and whether the Securities are
to be issued as Physical Securities or Global Securities and such other
information as the Trustee may reasonably request. The aggregate principal
amount of Securities outstanding at any time may not exceed $150.0 million,
except as provided in Sections 2.07 and 2.08.
In the event that the Company shall issue and the Trustee shall
authenticate any Securities issued under this Indenture subsequent to the Issue
Date pursuant to clauses (ii) and (iii) of the first sentence of the immediately
preceding paragraph, the Company shall use its reasonable best efforts to obtain
the same "CUSIP" number for such Securities as is printed on the Securities
outstanding at such time; provided, however, that if any series of Securities
issued under this Indenture subsequent to the Issue Date is determined, pursuant
to an Opinion of Counsel of the Company in a form reasonably satisfactory to the
Trustee, to be a different class of security than the Securities outstanding at
such time for federal income tax purposes, the Company may obtain a "CUSIP"
number for such Securities that is different than the "CUSIP" number printed on
the Securities then outstanding.
Notwithstanding the foregoing, all Securities issued under this
Indenture shall vote and consent together on all matters (as to which any of
such Securities may vote or consent) as one class and no series of Securities
will have the right to vote or consent as a separate class on any matter.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent shall
have the same rights as an Agent to deal with the Company and Affiliates of the
Company.
The Securities shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
Section 2.03 Registrar and Paying Agent
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where (a) Securities may be presented or
surrendered for registration of transfer or for exchange (the "Registrar"), (b)
Securities may be presented or surrendered for payment (the "Paying Agent") and
(c) notices and demands in respect of the Securities and this Indenture may be
served. The Registrar shall keep a register of the Securities and of their
transfer and exchange. The Company, upon notice to the Trustee, may appoint one
or more co-Registrars and one or more additional Paying Agents. The term "Paying
Agent" includes any additional Paying Agent and the term "Registrar" includes
any co-Registrar. Except as provided herein, the Company or any Guarantor may
act as Paying Agent, Registrar or co-Registrar.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which shall incorporate the provisions of
the TIA. The agreement shall implement the provisions of this Indenture that
relate to such Agent. The Company shall promptly notify the Trustee of the name
and address of any such Agent. If the Company fails to maintain a Registrar or
Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such and shall be entitled to appropriate compensation in accordance with
Section 7.07.
The Company initially appoints the Trustee as Registrar and Paying
Agent until such time as the Trustee has resigned or a successor has been
appointed. The Company initially appoints DTC to act as Depositary with respect
to the Global Securities. The Company may appoint a successor Registrar and/or
Paying Agent without prior notice to the Holders and the Company or any of its
Subsidiaries may act as Paying Agent or Registrar.
Section 2.04 Paying Agent to Hold Assets in Trust
The Company shall require each Paying Agent other than the Trustee to
agree in writing that each Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all assets held by the Paying Agent for the payment of
principal of, or interest on, the Securities, and shall notify the Trustee of
any Default by the Company in making any such payment. The Company at any time
may require a Paying Agent to distribute all assets held by it to the Trustee
and account for any assets disbursed and the Trustee may at any time during the
continuance of any payment Default, upon written request to a Paying Agent,
require such Paying Agent to distribute all assets held by it to the Trustee and
to account for any assets distributed. Upon distribution to the Trustee of all
assets that shall have been delivered by the Company to the Paying Agent (if
other than the Company), the Paying Agent shall have no further liability for
such assets. If the Company or any Guarantor or any of their respective
Affiliates acts as Paying Agent, it shall, on or before each due date of the
principal of or interest on the Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee of
its action or failure so to act.
Section 2.05 Holder Lists
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee at least five days before each Interest Record Date and at such other
times as the Trustee may request in writing a list as of such date and in such
form as the Trustee may reasonably require of the names and addresses of
Holders, which list may be conclusively relied upon by the Trustee.
Section 2.06 Transfer and Exchange.
Subject to the provisions of Sections 2.15 and 2.16, when Securities
are presented to the Registrar with a request to register the transfer of such
Securities or to exchange such Securities for an equal principal amount of
Securities of other authorized denominations of the same series, the Registrar
shall register the transfer or make the exchange as requested if its
requirements for such transaction are met; provided, however, that the
Securities surrendered for transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing. To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate Securities (and
each of the Guarantors shall execute a Guarantee thereon) at the Registrar's
written request. No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith payable by the transferor of such Securities (other than any such
transfer taxes or other governmental charge payable upon exchanges or transfers
pursuant to Section 2.10, 3.06, 4.05, 4.14 or 10.05). The Registrar shall not be
required to register the transfer or exchange of any Security (i) during a
period beginning at the opening of business 15 days before the mailing of a
notice of redemption of Securities and ending at the close of business on the
day of such mailing and (ii) selected for redemption in whole or in part
pursuant to Article Three hereof, except the unredeemed portion of any Security
being redeemed in part.
Prior to the registration of any transfer by a Holder as provided
herein, the Company, the Trustee and any Agent shall treat the person in whose
name the Security is registered as the owner thereof for all purposes whether or
not the Security shall be overdue, and neither the Company, the Trustee nor any
Agent shall be affected by notice to the contrary. Any Holder of a beneficial
interest in a Global Security shall, by acceptance of such beneficial interest
in a Global Security, agree that transfers of beneficial interests in such
Global Security may be effected only through a book-entry system maintained by
the Depositary (or its agent), and that ownership of a beneficial interest in a
Global Security shall be required to be reflected in a book entry.
Section 2.07 Replacement Securities
If evidence of a mutilated Security is surrendered to the Trustee or if
the Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Security if the Trustee's requirements for replacement of Securities
are met. If required by the Company or the Trustee, such Holder must provide an
indemnity bond or other indemnity, sufficient in the judgment of both the
Company and the Trustee, to protect the Company, the Trustee and any Agent from
any loss which any of them may suffer if a Security is replaced. The Company may
charge such Holder for its reasonable expenses in replacing a Security,
including reasonable fees and expenses of counsel.
Every replacement Security is an additional obligation of the Company
and the Guarantors.
Section 2.08 Outstanding Securities.
Securities outstanding at any time are all the Securities that have
been authenticated by the Trustee except those canceled by it, those delivered
to it for cancellation and those described in this Section 2.08 as not
outstanding. Subject to Section 2.09, a Security does not cease to be
outstanding because the Company or any of its Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser. A mutilated Security ceases to be outstanding
upon surrender of such Security and replacement thereof pursuant to Section
2.07.
If on a Redemption Date, Net Proceeds Offer Payment Date or the Final
Maturity Date the Paying Agent holds money sufficient to pay all of the
principal and interest due on the Securities payable on that date, and is not
prohibited from paying such money to the Holders pursuant to the terms of this
Indenture, then on and after that date such Securities cease to be outstanding
and interest on them ceases to accrue.
Section 2.09 Treasury Securities
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company, a Guarantor or any of their respective Affiliates shall be
disregarded, except that, for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities that a Trust Officer of the Trustee actually knows are so owned shall
be disregarded.
The Company shall promptly notify the Trustee, in writing, when the
Company, a Guarantor or any of their respective Affiliates repurchases or
otherwise acquires Securities and of the aggregate principal amount of such
Securities so repurchased or otherwise acquired.
Section 2.10 Temporary Securities
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon receipt of
a written order of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of temporary Securities to be
authenticated and the date on which the temporary Securities are to be
authenticated.
Temporary Securities shall be substantially in the form of definitive
Securities but may have variations that the Company consider appropriate for
temporary Securities. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate upon receipt of a written order of the Company
pursuant to Section 2.02 definitive Securities in exchange for temporary
Securities. Holders of temporary Securities shall be entitled to the benefits of
this Indenture.
Section 2.11 Cancellation
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent,
and no one else, shall cancel, and at the written direction of the Company,
dispose of and deliver evidence of such disposal of all Securities surrendered
for transfer, exchange, payment or cancellation. Subject to Section 2.07, the
Company may not issue new Securities to replace Securities that it has paid or
delivered to the Trustee for cancellation. If the Company or any Guarantor shall
acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the Indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation
pursuant to this Section 2.11.
Section 2.12 Defaulted Interest
The Company shall pay interest on overdue principal from time to time
on demand at the applicable rate of interest then borne by the Securities. The
Company shall, to the extent lawful, pay interest on overdue installments of
interest (without regard to any applicable grace periods) at the rate of
interest then borne by the Securities.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest, plus (to the extent lawful) any interest
payable on the defaulted interest to the Persons who are Holders on a subsequent
special record date, which date shall be the fifteenth day preceding the date
fixed by the Company for the payment of defaulted interest or the next
succeeding Business Day if such date is not a Business Day. At least 15 days
before the subsequent special record date, the Company shall mail to each
Holder, with a copy to the Trustee, a notice that states the subsequent special
record date, the payment date and the amount of defaulted interest, and interest
payable on such defaulted interest, if any, to be paid.
Notwithstanding the foregoing, any interest which is paid prior to the
expiration of the 30-day period set forth in Section 6.01(i) shall be paid to
Holders as of the Interest Record Date for the Interest Payment Date for which
interest has not been paid.
Section 2.13 CUSIP Number
The Company in issuing the Securities will use a "CUSIP" number and the
Trustee shall use the CUSIP number in notices of redemption or exchange as a
convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Securities, and that reliance may be placed only
on the other identification numbers printed on the Securities. The Company shall
promptly notify the Trustee of any changes in CUSIP numbers.
Section 2.14 Deposit of Moneys
Prior to 10:00 a.m., New York time, on each Interest Payment Date,
Redemption Date, Net Proceeds Offer Payment Date and the Final Maturity Date,
the Company shall deposit with the Paying Agent in immediately available funds
money sufficient to make cash payments, if any, due on such Interest Payment
Date, Redemption Date, Net Proceeds Offer Payment Date or Final Maturity Date,
as the case may be, in a timely manner which permits the Paying Agent to remit
payment to the Holders on such Interest Payment Date, Redemption Date, Net
Proceeds Offer Payment Date or Final Maturity Date, as the case may be.
Section 2.15 Book-Entry Provisions for Global Securities
(a) The Global Securities initially shall (i) be registered in the
name of the Depositary or the nominee of such Depositary, (ii) be delivered to
the Trustee as custodian for such Depositary and (iii) bear legends as set forth
in Exhibit C.
Members of, or participants in, the Depositary ("Participants") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Security, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of the Global
Security 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 Depositary or impair, as between the Depositary
and Participants, the operation of customary practices governing the exercise of
the rights of a beneficial holder of any Security.
(b) Transfers of Global Securities shall be limited to transfers in
whole, but not in part, to the Depositary, its successors or their respective
nominees. Interests of beneficial owners in the Global Securities may be
transferred or exchanged for Physical Securities in accordance with the rules
and procedures of the Depositary and the provisions of Section 2.16; provided,
however, that Physical Securities shall be transferred to all beneficial owners
in exchange for their beneficial interests in Global Securities if (i) the
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for any Global Security and a successor Depositary is not appointed
by the Company within 90 days of such notice or (ii) an Event of Default has
occurred and is continuing and the Registrar has received a request from the
Depositary to issue Physical Securities.
(c) In connection with the transfer of Global Securities as an
entirety to beneficial owners pursuant to paragraph (b) of this Section 2.15,
the Global Securities shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall upon written
instructions from the Company authenticate and deliver, to each beneficial owner
identified by the Depositary in exchange for its beneficial interest in the
Global Securities, an equal aggregate principal amount of Physical Securities of
authorized denominations.
(d) Any Physical Security constituting a Restricted Security
delivered in exchange for an interest in a Global Security pursuant to paragraph
(b) of this Section 2.15 shall, except as otherwise provided by Section 2.16,
bear the Private Placement Legend.
(e) The Holder of any Global Security may grant proxies and
otherwise authorize any Person, including Participants and Persons that may hold
interests through Participants, to take any action which a Holder is entitled to
take under this Indenture or the Securities.
Section 2.16 Registration of Transfers and Exchanges
(a) Transfer and Exchange of Physical Securities. When Physical
Securities are presented to the Registrar with a request:
(i) to register the transfer of the Physical Securities; or
(ii) to exchange such Physical Securities for an equal principal
amount of Physical Securities of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
the requirements under this Indenture as set forth in this Section 2.16 for such
transactions are met; provided, however, that the Physical Securities presented
or surrendered for Registration of transfer or exchange:
(I) shall be duly endorsed or accompanied by a written instrument
of transfer in form satisfactory to the Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing; and
(II) in the case of Physical Securities the offer and sale of which
have not been registered under the Securities Act, such Physical Securities
shall be accompanied, in the sole discretion of the Company, by the following
additional information and documents, as applicable:
(A) if such Physical Security is being delivered to the Registrar
by a Holder for Registration in the name of such Holder, without transfer, a
certification from such Holder to that effect (substantially in the form of
Exhibit D hereto); or
(B) if such Physical Security is being transferred to a QIB in
accordance with Rule 144A, a certification to that effect (substantially in the
form of Exhibit D hereto); or
(C) if such Physical Security is being transferred to an
Institutional Accredited Investor, delivery of a certification to that effect
(substantially in the form of Exhibit D hereto) and a transferee letter of
representation substantially in the form of Exhibit E hereto and, at the option
of the Company, an Opinion of Counsel reasonably satisfactory to the Company to
the effect that such transfer is in compliance with the Securities Act; or
(D) if such Physical Security is being transferred in reliance on
Rule 144 under the Securities Act, delivery of a certification to that effect
(substantially in the form of Exhibit D hereto) and, at the option of the
Company, an Opinion of Counsel reasonably satisfactory to the Company to the
effect that such transfer is in compliance with the Securities Act; or
(E) if such Physical Security is being transferred in reliance on
another exemption from the registration requirements of the Securities Act, a
certification to that effect (substantially in the form of Exhibit D hereto)
and, at the option of the Company, an Opinion of Counsel reasonably acceptable
to the Company to the effect that such transfer is in compliance with the
Securities Act.
(b) Restrictions on Transfer of a Physical Security for a
Beneficial Interest in a Global Security. A Physical Security, the offer and
sale of which has not been registered under the Securities Act, may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Registrar
of a Physical Security, duly endorsed or accompanied by appropriate instruments
of transfer, in form satisfactory to the Registrar, together with:
(A) certification, substantially in the form of Exhibit D hereto,
that such Physical Security is being transferred (I) to a QIB or (II) to an
Institutional Accredited Investor and, with respect to (II), at the option of
the Company, an Opinion of Counsel reasonably acceptable to the Company to the
effect that such transfer is in compliance with the Securities Act; and
(B) written instructions directing the Registrar to make, or to
direct the Depositary to make, an endorsement on the applicable Global Security
to reflect an increase in the aggregate amount of the Securities represented by
the Global Security,
then the Registrar shall cancel such Physical Security and cause, or direct the
Depositary to cause, in accordance with the standing instructions and procedures
existing between the Depositary and the Registrar, the principal amount of
Securities represented by the applicable Global Security to be increased
accordingly. If no Global Security is then outstanding, the Company shall,
unless either of the events in the proviso to Section 2.15(b) have occurred and
are continuing, issue and the Trustee shall, upon written instructions from the
Company in accordance with Section 2.02, authenticate such a Global Security in
the appropriate principal amount.
(c) Transfer and Exchange of Global Securities. The transfer and
exchange of Global Securities or beneficial interests therein shall be effected
through the Depositary in accordance with this Indenture (including the
restrictions on transfer set forth herein) and the procedures of the Depositary
therefor. Upon receipt by the Registrar of written instructions, or such other
instruction as is customary for the Depositary, from the Depositary or its
nominee, requesting the Registration of transfer of an interest in a Global
Security to another type of Global Security, together with the applicable Global
Securities (or, if the applicable type of Global Security required to represent
the interest as requested to be transferred is not then outstanding, only the
Global Security representing the interest being transferred), the Registrar
shall cancel such Global Securities (or Global Security) and the Company shall
issue and the Trustee shall, upon written instructions from the Company in
accordance with Section 2.02, authenticate new Global Securities of the types so
canceled (or the type so canceled and applicable type required to represent the
interest as requested to be transferred) reflecting the applicable increase and
decrease of the principal amount of Securities represented by such types of
Global Securities, giving effect to such transfer. If the applicable type of
Global Security required to represent the interest as requested to be
transferred is not outstanding at the time of such request, the Company shall
issue and the Trustee shall, upon written instructions from the Company in
accordance with Section 2.02, authenticate a new Global Security of such type in
principal amount equal to the principal amount of the interest requested to be
transferred.
(d) Transfer of a Beneficial Interest in a Global Security for a
Physical Security.
(i) Any Person having a beneficial interest in a Global Security
may upon request exchange such beneficial interest for a Physical Security;
provided, however, that prior to the Registration, a transferee that is a QIB or
Institutional Accredited Investor may not exchange a beneficial interest in a
Global Security for a Physical Security. Upon receipt by the Registrar of
written instructions, or such other form of instructions as is customary for the
Depositary, from the Depositary or its nominee on behalf of any Person (subject
to the previous sentence) having a beneficial interest in a Global Security and
upon receipt by the Trustee of a written order or such other form of
instructions as is customary for the Depositary or the Person designated by the
Depositary as having such a beneficial interest containing registration
instructions and, in the case of any such transfer or exchange of a beneficial
interest in Securities the offer and sale of which have not been registered
under the Securities Act, the following additional information and documents:
(A) if such beneficial interest is being transferred in reliance on
Rule 144 under the Securities Act, delivery of a certification to that effect
(substantially in the form of Exhibit D hereto) and, at the option of the
Company, an Opinion of Counsel reasonably satisfactory to the Company to the
effect that such transfer is in compliance with the Securities Act; or
(B) if such beneficial interest is being transferred in reliance on
another exemption from the registration requirements of the Securities Act, a
certification to that effect (substantially in the form of Exhibit D hereto)
and, at the option of the Company, an Opinion of Counsel reasonably satisfactory
to the Company to the effect that such transfer is in compliance with the
Securities Act,
then the Registrar will cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Registrar, the aggregate
principal amount of the applicable Global Security to be reduced and, following
such reduction, the Company will execute and, upon receipt of an authentication
order in the form of an Officers' Certificate in accordance with Section 2.02,
the Trustee will authenticate and deliver to the transferee a Physical Security
in the appropriate principal amount.
(ii) Securities issued in exchange for a beneficial interest in a
Global Security pursuant to this Section 2.16(d) shall be registered in such
names and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Registrar in writing. The Registrar shall deliver such Physical
Securities to the Persons in whose names such Physical Securities are so
registered.
(e) Restrictions on Transfer and Exchange of Global Securities.
Notwithstanding any other provisions of this Indenture, a Global Security may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) Private Placement Legend. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Registrar shall deliver only Securities that bear
the Private Placement Legend unless, and the Trustee is hereby authorized to
deliver Securities without the Private Placement Legend if, (i) there is
delivered to the Trustee an Opinion of Counsel reasonably satisfactory to the
Company and the Trustee to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act; (ii) such Security has been sold pursuant to
an effective registration statement under the Securities Act (including pursuant
to a Registration); or (iii) the date of such transfer, exchange or replacement
is two years after the later of (x) the Issue Date and (y) the last date that
the Company or any affiliate (as defined in Rule 144 under the Securities Act)
of the Company was the owner of such Securities (or any predecessor thereto).
(g) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
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 Security (including any transfers between or among Participants or
beneficial owners of interest in any Global Security) 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.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.15 or this Section 2.16.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable prior written notice to the Registrar.
Section 2.17 Issuance of Additional Securities
The Company shall be entitled, subject to its compliance with the
covenants contained in Section 4.04, to issue Additional Securities under this
Indenture which shall have identical terms as the Initial Securities issued on
the Issue Date, other than with respect to the date of issuance, issue price and
amount of interest payable on the first payment date applicable thereto (and, if
such Additional Securities shall be issued in the form of Physical Securities or
Global Securities, other than with respect to transfer restrictions). The
Initial Securities issued on the Issue Date, any Additional Securities and all
Exchange Securities issued in exchange therefor shall be treated as a single
class for all purposes under this Indenture.
With respect to any Additional Securities, the Company shall set forth
in a resolution of the Board of Directors of the Company and an Officers'
Certificate, a copy of each of which shall be delivered to the Trustee, the
following information:
(1) the aggregate principal amount of such Additional Securities to
be authenticated and delivered pursuant to this Indenture;
(2) the issue price, the issue date, the CUSIP and/or ISIN number
of such Additional Securities and the amount of interest payable on the first
payment date applicable thereto; provided, however, that no Additional
Securities may be issued at a price that would cause such Additional Securities
to have "original issue discount" within the meaning of Section 1273 of the
Internal Revenue Code of 1986, as amended; and
(3) whether such Additional Securities shall be Physical Securities
or Global Securities and issued in the form of Initial Securities or shall be
issued in the form of Exchange Securities.
ARTICLE THREE
REDEMPTION
Section 3.01 Notices to Trustee
If the Company wants to redeem Securities pursuant to paragraph 7 or 8
of the Securities at the applicable redemption price set forth thereon, it shall
notify the Trustee in writing of the Redemption Date and the principal amount of
Securities to be redeemed, together with an Officers' Certificate stating that
such redemption will comply with the conditions contained herein.
Section 3.02 Selection of Securities to Be Redeemed
If less than all of the Securities are to be redeemed at any time, the
Trustee will select Securities for redemption as follows:
(1) if the Securities are listed, in compliance with the
requirements of the principal national securities exchange on which the
Securities are listed; or
(2) if the Securities are not so listed, on a pro rata basis, by
lot or by such method as the Trustee shall deem appropriate.
No Securities of $1,000 or less shall be redeemed in part. Notices of
redemption shall be mailed by first class mail at least 30 but not more than 60
days before the redemption date to each Holder to be redeemed at its registered
address. Notices of redemption may not be conditional.
If any Security is to be redeemed in part only, the notice of
redemption that relates to that Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in principal amount
equal to the unredeemed portion of the original Security will be issued in the
name of the Holder thereof upon cancellation of the original Security.
Securities called for redemption become due on the date fixed for redemption. On
and after the redemption date, interest ceases to accrue on Securities or
portions of them called for redemption.
Section 3.03 Notice of Redemption
At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail a notice of redemption by first-class mail to each Holder
whose Securities are to be redeemed at such Holder's registered address.
Each notice of redemption shall identify the Securities to be redeemed
(including the CUSIP number thereon) and shall state: (1) the paragraph of the
Securities pursuant to which the Securities are being redeemed;
(2) the Redemption Date;
(3) the redemption price;
(4) the name and address of the Paying Agent to which the
Securities are to be surrendered for redemption;
(5) that Securities called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue on and
after the Redemption Date and the only remaining right of the Holders is to
receive payment of the redemption price upon surrender to the Paying Agent; and
(7) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the Redemption
Date, upon surrender of such Security, a new Security or Securities in principal
amount equal to the unredeemed portion thereof will be issued.
At the Company's request, the Trustee shall give the notice of
redemption on behalf of the Company, in the Company's name and at the Company's
expense; provided that the Company shall give notice of redemption to the
Trustee at least 10 days before the date the notice of redemption is requested
by the Company to be mailed to the Holders (unless a shorter notice period shall
be agreed to by the Trustee in writing).
Section 3.04 Effect of Notice of Redemption
Once a notice of redemption is mailed, Securities called for redemption
become due and payable on the Redemption Date and at the redemption price. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price, plus accrued interest thereon, if any, to the Redemption Date, but
interest installments whose maturity is on or prior to such Redemption Date
shall be payable to the Holders of record at the close of business on the
relevant Interest Record Date. The Trustee or Paying Agent shall promptly return
to the Company any money deposited with the Trustee or the Paying Agent by the
Issuers in excess of the amount necessary to pay the redemption price of, and
accrued and unpaid interest on, all Securities to be redeemed.
Section 3.05 Deposit of Redemption Price
Prior to 10:00 a.m., New York time, on the Redemption Date, the Company
shall deposit with the Paying Agent (or if the Company is Paying Agent, shall,
on or before the Redemption Date, segregate and hold in trust) money sufficient
to pay the redemption price of and accrued interest, if any, on all Securities
to be redeemed on that date other than Securities or portions thereof called for
redemption on that date which have been delivered by the Company to the Trustee
for cancellation.
If the Company complies with the provisions of the preceding paragraph,
on and after the redemption date, interest shall cease to accrue on the
Securities or the portions of Securities called for redemption. If a Security is
redeemed on or after an Interest Record Date but on or prior to the related
Interest Payment Date, then any accrued and unpaid interest shall be paid to the
person in whose name such Security was registered at the close of business on
such record date. Upon surrender of a Security for redemption in accordance with
the notice given pursuant to Section 3.03 hereof, such Security shall be
purchased by the Company at the redemption price, together with accrued and
unpaid interest to the redemption date.
If any Security surrendered for redemption in the manner provided in
the Securities shall not be so paid on the Redemption Date due to the failure of
the Company to deposit with the Paying Agent money sufficient to pay the
redemption price thereof, the principal and accrued and unpaid interest, if any,
thereon shall, until paid or duly provided for, bear interest as provided in
Sections 2.12 and 4.01 with respect to any payment default.
Section 3.06 Securities Redeemed in Part
Upon surrender of a Security that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the Holder a new Security
equal in principal amount to the unredeemed portion of the Security surrendered.
Section 3.07 Optional Redemption
(a) At any time prior to June 15, 2002, the Company may on any one
or more occasions redeem up to 35% of the aggregate principal amount of
Securities originally issued under the Indenture at a redemption price of
111.375% of the principal amount thereof, plus accrued and unpaid interest to
the redemption date, with the net cash proceeds of one or more Public Equity
Offerings; provided that
(1) at least 65% of the aggregate principal amount of Securities
issued on the Issue Date remains outstanding immediately after the occurrence of
such redemption (excluding Securities held by the Company and its Subsidiaries);
and
(2) the redemption must occur within 45 days of the date of the
closing of such Public Equity Offering.
(b) Except as set forth in paragraph (a) of this Section 3.07, the
Securities will not be redeemable at the Company's option prior to June 15,
2004. On or after June 15, 2004, the Company may redeem the Securities, in whole
or from time to time in part, upon not less than 30 nor more than 60 days'
notice, at the redemption prices (expressed as percentages of principal amount)
set forth below plus accrued and unpaid interest thereon, if any, to the
applicable redemption date, if redeemed during the twelve-month period beginning
on June 15 of the years indicated below:
Year Percentage
2004..................................................105.688%
2005..................................................103.792%
2006..................................................101.896%
2007 and thereafter...................................100.000%
ARTICLE FOUR
COVENANTS
Section 4.01 Payment of Securities
The Company shall pay the principal of and interest on (and any
Liquidated Damages, to the extent applicable) the Securities in the manner
provided in the Securities and the Registration Rights Agreement. An installment
of principal or interest shall be considered paid on the date due if the Trustee
or Paying Agent (other than the Company, a Guarantor or any of their respective
Affiliates) holds on that date money designated for and sufficient to pay the
installment in full and is not prohibited from paying such money to the Holders
of the Securities pursuant to the terms of this Indenture.
The Company shall pay cash interest on overdue principal at the same
rate per annum borne by the applicable Securities. The Company shall pay cash
interest on overdue installments of interest at the same rate per annum borne by
the applicable Securities, to the extent lawful, as provided in Section 2.12.
Section 4.02 Maintenance of Office or Agency
The Company shall maintain in the Borough of Manhattan, The City of New
York, the office or agency required under Section 2.03. The Company shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth in Section 13.02.
The Company hereby initially designates the Trustee at its address set forth in
Section 13.02 as its office or agency in the Borough of Manhattan, The City of
New York, for such purposes.
Section 4.03 Limitations on Transactions with Affiliates
The Company will not, and will not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each, an "Affiliate Transaction"), unless:
(1) such Affiliate Transaction is on terms that are no less
favorable to the Company or the relevant Restricted Subsidiary than those that
would have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of $1.0
million, a resolution of the Board of Directors set forth in an Officers'
Certificate certifying that such Affiliate Transaction complies with this
covenant and that such Affiliate Transaction has been approved by a majority of
the disinterested members of the Board of Directors; and
(b) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of $5.0
million, an opinion as to the fairness to the Holders of such Affiliate
Transaction from a financial point of view issued by an accounting, appraisal or
investment banking firm of national standing.
The following items shall not be deemed to be Affiliate Transactions
and, therefore, will not be subject to the provisions of the prior paragraph:
(1) any employment agreement entered into by the Company or any of
its Restricted Subsidiaries in the ordinary course of business and consistent
with the past practice of the Company or such Restricted Subsidiary;
(2) transactions between or among the Company and/or its Restricted
Subsidiaries;
(3) payment of reasonable directors fees to Persons who are not
otherwise Affiliates of the Company;
(4) Restricted Payments that are permitted by the provisions of the
Indenture described in Section 4.06; and
(5) the purchase of the tendered shares from the Tender Offer upon
consummation of the Merger.
Section 4.04 Limitation on Incurrence of Additional Indebtedness and Issuance
of Preferred Stock
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Debt but not including Permitted Indebtedness), and the Company will not issue
any Disqualified Stock and will not permit any of its Restricted Subsidiaries to
issue any shares of preferred stock; provided, however, that the Company and any
Guarantor may incur Indebtedness (including Acquired Debt), and the Company may
issue Disqualified Stock, if the Fixed Charge Coverage Ratio for the Company's
most recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on which such additional
Indebtedness is incurred or such Disqualified Stock is issued would have been at
least (a) 2.0 to 1 if such Indebtedness is incurred on or prior to June 15, 2001
and (b) 2.25 to 1 if such Indebtedness is incurred thereafter, determined on a
pro forma basis (including a pro forma application of the net proceeds
therefrom), as if the additional Indebtedness had been incurred, or the
Disqualified Stock had been issued, as the case may be, at the beginning of such
four-quarter period.
For purposes of determining compliance with this Section 4.04, in the
event that an item of proposed Indebtedness meets the criteria of more than one
of the categories of Permitted Indebtedness, or is entitled to be incurred
pursuant to the first paragraph of this covenant, the Company will be permitted
to classify such item of Indebtedness on the date of its incurrence in any
manner that complies with this covenant. Indebtedness under Credit Facilities
outstanding on the Issue Date shall be deemed to have been incurred on such date
in reliance on the exception provided by clause (i) of the definition of
"Permitted Indebtedness" in Article One. Subject to the other terms of the
Indenture, any Indebtedness incurred in accordance with this covenant may be
incurred under the Credit Agreement.
For purposes of determining compliance with any U.S. dollar-denominated
restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent
principal amount of Indebtedness denominated in a foreign currency shall be
calculated based on the relevant currency exchange rate in effect on the date
such Indebtedness was incurred, in the case of term Indebtedness, or first
committed, in the case of revolving credit Indebtedness; provided 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-dominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such U.S.
dollar-dominated restriction shall be deemed not to have been exceeded so long
as the principal amount of such refinancing Indebtedness does not exceed the
principal amount of such Indebtedness being refinanced. The principal amount of
any Indebtedness incurred to refinance other Indebtedness, if incurred in a
different currency from the Indebtedness being refinanced, shall be calculated
based on the currency exchange rate applicable to the currencies in which such
Permitted Refinancing Indebtedness is denominated that is in effect on the date
of such refinancing.
Section 4.05 Limitation on Asset Sales
(A) The Company will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be)
receives consideration at the time of such Asset Sale at least equal to the fair
market value of the assets or Equity Interests issued or sold or otherwise
disposed of;
(2) such fair market value is determined by the Company's Board of
Directors and evidenced by a resolution of the Board of Directors set forth in
an Officers' Certificate delivered to the Trustee; and (3) at least 85% of the
consideration therefor received by the Company or such Restricted Subsidiary is
in the form of cash or Cash Equivalents. For purposes of this provision, each of
the following shall be deemed to be cash:
(a) any liabilities (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet), of the Company or any Restricted
Subsidiary (other than contingent liabilities and liabilities that are by their
terms subordinated to the Securities or any Subsidiary Guarantee) that are
assumed by the transferee of any such assets pursuant to a customary novation
agreement that releases the Company or such Restricted Subsidiary from further
liability; and
(b) any securities, notes or other obligations received by the
Company or any such Restricted Subsidiary from such transferee that are
contemporaneously (subject to ordinary settlement periods) converted by the
Company or such Restricted Subsidiary into cash (to the extent of the cash
received in that conversion).
Within 360 days after the receipt of any Net Proceeds from an Asset
Sale, the Company may apply such Net Proceeds at its option:
(1) to repay permanently Senior Debt of the Company or Senior Debt
of any Guarantor and, if the Senior Debt repaid is revolving credit
Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or a
majority of the Voting Stock of, another Permitted Business;
(3) to make a capital expenditure; or
(4) to acquire other assets that are used or useful in a Permitted
Business.
Pending the final application of any such Net Proceeds, the Company may
temporarily reduce revolving credit borrowings or otherwise invest such Net
Proceeds in any manner that is not prohibited by the Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested as
provided in the preceding paragraph will constitute excess proceeds ("Excess
Proceeds"). When the aggregate amount of Excess Proceeds exceeds $5.0 million,
the Company will make an offer to all Holders of Securities and all holders of
other Indebtedness that is pari passu with the Securities containing provisions
similar to those set forth in the Indenture with respect to offers to purchase
or redeem with the proceeds of sales of assets to purchase the maximum principal
amount of Securities and such other pari passu Indebtedness that may be
purchased out of the Excess Proceeds (the "Net Proceeds Offer"). The offer price
in any Net Proceeds Offer will be equal to 100% of principal amount plus accrued
and unpaid interest, if any, to the date of purchase, and will be payable in
cash (the "Net Proceeds Offer Amount"). If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use such Excess Proceeds
for any purpose not otherwise prohibited by the Indenture. If the aggregate
principal amount of Securities and such other pari passu Indebtedness tendered
into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee
shall select the Securities and such other pari passu Indebtedness to be
purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the
amount of Excess Proceeds shall be reset at zero.
In the event of the transfer of substantially all (but not all) of the
property and assets of the Company and its Restricted Subsidiaries as an
entirety to a Person in a transaction permitted under Section 5.01, the
successor corporation shall be deemed for purposes of this Section 4.05 to have
sold the properties and assets of the Company and its Restricted Subsidiaries
not so transferred, and shall comply with the provisions of this Section 4.05
with respect to such deemed sale as if it were an Asset Sale. In addition, the
fair market value of such properties and assets of the Company or its Restricted
Subsidiaries deemed to be sold shall be deemed to be Net Proceeds for purposes
of this Section 4.05.
Each Net Proceeds Offer will be mailed to the record Holders as shown
on the register of Holders within 25 days following the Net Proceeds Offer
Trigger Date, with a copy to the Trustee, and shall comply with the procedures
set forth in this Indenture. Upon receiving notice of the Net Proceeds Offer,
Holders may elect to tender their Securities in whole or in part in integral
multiples of $1,000 in exchange for cash. To the extent Holders properly tender
Securities in an amount exceeding the Net Proceeds Offer Amount, Securities of
tendering Holders will be purchased on a pro rata basis (based on amounts
tendered). A Net Proceeds Offer shall remain open for a period of 20 Business
Days or such longer period as may be required by law.
(B) Subject to the deferral of the Net Proceeds Offer Trigger Date
contained in the first paragraph of subsection (A) above, each notice of a Net
Proceeds Offer pursuant to this Section 4.05 shall be mailed or caused to be
mailed, by first class mail, by the Company not more than 25 days after the Net
Proceeds Offer Trigger Date to all Holders at their last registered addresses as
of a date within 15 days of the mailing of such notice, with a copy to the
Trustee. The notice shall contain all instructions and materials necessary to
enable such Holders to tender Securities pursuant to the Net Proceeds Offer and
shall state the following terms:
a. (1) that the Net Proceeds Offer is being made pursuant to this
Section 4.05 and that all Securities tendered will be accepted for payment;
provided, however, that if the aggregate principal amount of Securities tendered
in a Net Proceeds Offer exceeds the aggregate amount of the Net Proceeds Offer,
the Company shall select the Securities to be purchased on a pro rata basis
based on the amounts tendered (with such adjustments as may be deemed
appropriate by the Company so that only Securities in denominations of $1,000 or
multiples thereof shall be purchased);
b. (2) the purchase price (including the amount of accrued
interest) and the purchase date (which shall be at least 20 and not more than 30
Business Days from the date of mailing of notice of such Net Proceeds Offer, or
such longer period as required by law) (the "Net Proceeds Offer Payment Date");
c. (3) that any Security not tendered will continue to accrue
interest;
d. (4) that, unless the Company defaults in making payment
therefor, any Security accepted for payment pursuant to the Net Proceeds Offer
shall cease to accrue interest after the Net Proceeds Offer Payment Date;
e. (5) that Holders electing to have a Security purchased pursuant
to a Net Proceeds Offer will be required to surrender the Security, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Security completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day prior to the Net
Proceeds Offer Payment Date;
f. (6) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than five Business Days prior to the Net
Proceeds Offer Payment Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Securities the
Holder delivered for purchase and a statement that such Holder is withdrawing
his election to have such Security purchased; and
g. (7) that Holders whose Securities are purchased only in part
will be issued new Securities in a principal amount equal to the unpurchased
portion of the Securities surrendered; provided that each Security purchased and
each new Security issued shall be in an original principal amount of $1,000 or
integral multiples thereof.
On or before 10:00 a.m., New York time, on the Net Proceeds Offer
Payment Date, the Company shall (i) accept for payment Securities or portions
thereof validly tendered pursuant to the Net Proceeds Offer which are to be
purchased in accordance with item (b)(1) above, (ii) deposit with the Paying
Agent United States Legal Tender sufficient to pay the purchase price plus
accrued interest, if any, of all Securities to be purchased and (iii) deliver to
the Trustee Securities so accepted together with an Officers' Certificate
stating the Securities or portions thereof being purchased by the Company. The
Paying Agent shall promptly mail to the Holders of Securities so accepted
payment in an amount equal to the purchase price plus accrued interest, if any.
For purposes of this Section 4.05, the Trustee shall act as the Paying Agent.
Any amounts remaining after the purchase of Securities pursuant to a
Net Proceeds Offer shall be returned by the Trustee to the Company.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Securities pursuant to a Net Proceeds Offer. To the extent that
the provisions of any securities laws or regulations conflict with this Section
4.05, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.05 by virtue thereof.
Section 4.06 Limitation on Restricted Payments
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or
distribution on account of the Company's or any of its Restricted Subsidiaries'
Equity Interests (including, without limitation, any payment in connection with
any merger or consolidation involving the Company or any of its Restricted
Subsidiaries) or to the direct or indirect holders of the Company's or any of
its Restricted Subsidiaries' Equity Interests in their capacity as such (other
than dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of the Company or to the Company or a Restricted Subsidiary
of the Company);
(2) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or consolidation
involving the Company) any Equity Interests of the Company or any direct or
indirect parent of the Company or any Restricted Subsidiary of the Company
(other than any such Equity Interests owned by the Company or any Restricted
Subsidiary of the Company);
(3) make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness that (a) is
pari passu with the Securities, (b) is subordinate in right of payment to the
Subsidiary Guarantees or (c) otherwise constitutes Subordinated Indebtedness
(other than the Securities or the Subsidiary Guarantees), except a payment of
interest or principal at the Stated Maturity thereof or pursuant to any required
sinking fund payments; or
(4) make any Restricted Investment (all such payments and other
actions set forth in clauses (1) through (4) above being collectively referred
to as "Restricted Payments"), unless, at the time of and after giving effect to
such Restricted Payment:
(1) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(2) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the applicable four-quarter period, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in the first paragraph of Section 4.04; and
(3) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by the Company and its Restricted
Subsidiaries after the Issue Date (excluding Restricted Payments permitted by
clauses (2) and (3) of the next succeeding paragraph), is less than the sum,
without duplication, of
(a) 50% of the Consolidated Net Income of the Company for the
period (taken as one accounting period) from the beginning of the first fiscal
quarter commencing after the Issue Date to the end of the Company's most
recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if such Consolidated Net
Income for such period is a deficit, less 100% of such deficit), plus
(b) 100% of the aggregate net cash proceeds received by the Company
since the Issue Date as a contribution to its common equity capital or from the
issue or sale of Equity Interests of the Company (other than Disqualified Stock)
or from the issue or sale of convertible or exchangeable Disqualified Stock or
convertible or exchangeable debt securities of the Company that have been
converted into or exchanged for such Equity Interests (other than Equity
Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the
Company), plus
(c) to the extent that any Restricted Investment that was made
after the Issue Date is sold for cash or otherwise liquidated or repaid for
cash, the lesser of (i) the cash return of capital with respect to such
Restricted Investment (less the cost of disposition, if any) and (ii) the
initial amount of such Restricted Investment.
Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph will not prohibit:
(1) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would have
complied with the provisions of the Indenture;
(2) the redemption, repurchase, retirement, defeasance or other
acquisition of any pari passu or Subordinated Indebtedness of the Company or any
Guarantor or of any Equity Interests of the Company or any Guarantor in exchange
for, or out of the net cash proceeds of the substantially concurrent sale (other
than to a Subsidiary of the Company) of, Equity Interests of the Company (other
than Disqualified Stock); provided that the amount of any such net cash proceeds
that are utilized for any such redemption, repurchase, retirement, defeasance or
other acquisition shall be excluded from clause (3)(b) of the preceding
paragraph;
(3) the defeasance, redemption, repurchase or other acquisition of
(a) pari passu Indebtedness, (b) Indebtedness which is subordinate in right of
payment to the Subsidiary Guarantees or (c) Subordinated Indebtedness of the
Company or any Guarantor with the net cash proceeds from an incurrence of
Permitted Refinancing Indebtedness;
(4) the payment of any dividend by a Restricted Subsidiary of the
Company to the holders of its common Equity Interests on a pro rata basis
provided that, at the time of the declaration of any such dividends, no Default
or Event of Default shall have occurred and be continuing or would occur as a
consequence thereof;
(5) the repurchase, redemption or other acquisition or retirement
for value of any Equity Interests of the Company or any Restricted Subsidiary of
the Company held by any member of the Company's (or any of its Subsidiaries')
management pursuant to any management equity subscription agreement or stock
option agreement; provided that (i) the aggregate price paid for all such
repurchased, redeemed, acquired or retired Equity Interests shall not exceed
$1.0 million in any twelve-month period (with unused amounts in any calendar
year being carried over to succeeding calendar years, without being subject to
any maximum due to such carry over treatment or expiration of any amounts so
carried over) and (ii) at the time of the aforementioned repurchase, redemption,
acquisition or retirement, no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence thereof; and
(6) payments to shareholders of Xxxxxx Xxxxxxxx in connection with
the purchase of their common stock relating to the Tender Offer and the Merger.
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The fair market value of any assets or securities that are required to be valued
by this covenant shall be determined by the Board of Directors whose resolution
with respect thereto shall be delivered to the Trustee. The Board of Directors'
determination must be based upon an opinion or appraisal issued by an
accounting, appraisal or investment banking firm of national standing if the
fair market value exceeds $5.0 million. Not later than the date of making any
Restricted Payment, the Company shall deliver to the Trustee an Officers'
Certificate stating that such Restricted Payment is permitted and setting forth
the basis upon which the calculations required by this Section 4.06 were
computed, together with a copy of any fairness opinion or appraisal required by
the Indenture.
In making the computations required by this Section 4.06, (i) the
Company may use audited financial statements for the portions of the relevant
period for which audited financial statements are available on the date of
determination and unaudited financial statements and other current financial
data based on the books and records of the Company for the remaining portion of
such period and (ii) the Company will be permitted to rely in good faith on the
financial statements and other financial data derived from its books and records
that are available on the date of determination. If the Company makes a
Restricted Payment that, at the time of the making of such Restricted Payment,
would in the good faith determination of the Company be permitted under the
requirements of this Indenture, such Restricted Payment will be deemed to have
been made in compliance with this Indenture notwithstanding any subsequent
adjustments made in good faith to the Company's financial statements which
adjustments affect any of the financial data used to make the calculations with
respect to such Restricted Payment.
Section 4.07 Compliance with Laws
The Company shall comply, and shall cause each of its Restricted
Subsidiaries to comply, with all applicable statutes, rules, regulations, orders
and restrictions of the United States of America, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of their respective businesses and the ownership of their respective
properties, except for such noncompliances as are not in the aggregate
reasonably likely to have a material adverse effect on the financial condition
or results of operations of the Company and its Restricted Subsidiaries, taken
as a whole.
Section 4.08 Payment of Taxes and Other Claims
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or upon the income, profits or property of the Company or any
Restricted Subsidiary and (2) all lawful claims for labor, materials and
supplies which, in each case, if unpaid, might by law become a material
liability, or Lien upon the property, of the Company or any Restricted
Subsidiary; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings and for which appropriate provision has been made.
Section 4.09 Notice of Defaults
2. Upon becoming aware of any Default or Event of Default, the Company
shall promptly (and in any event within 5 Business Days) deliver an Officers'
Certificate to the Trustee specifying the Default or Event of Default and what
action the Company is proposing to take with respect thereto.
Section 4.10 Maintenance of Properties and Insurance
(a) Subject to Article Five, the Company shall cause all material
properties owned by or leased to it or any Restricted Subsidiary and used or
useful in the conduct of its business or the business of any Restricted
Subsidiary to be maintained and kept in normal condition, repair and working
order (other than ordinary wear and tear) and supplied with all necessary
equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section 4.10 shall prevent the Company or any
Restricted Subsidiary from discontinuing the use, operation or maintenance of
any of such properties, or disposing of any of them, if such discontinuance or
disposal is, in the judgment of the Board of Directors of the Company or the
Restricted Subsidiary concerned, or of an Officer (or other agent employed by
the Company or of any Restricted Subsidiary) of the Company or such Restricted
Subsidiary having managerial responsibility for any such property, desirable in
the conduct of the business of the Company or any Restricted Subsidiary.
(b) The Company shall maintain, and shall cause the Restricted
Subsidiaries to maintain, insurance with responsible carriers against such risks
and in such amounts, and with such deductibles, retentions, self-insured amounts
and co-insurance provisions as, in the judgment of the Company, may be
necessary.
Section 4.11 Compliance Certificate
The Company shall deliver to the Trustee within 90 days after the close
of each fiscal year a certificate signed by the principal executive officer,
principal financial officer or principal accounting officer of the Company
stating that a review of the activities of the Company has been made under the
supervision of the signing officers with a view to determining whether a Default
or Event of Default has occurred and whether or not the signers know of any
Default or Event of Default by the Company that occurred during such fiscal year
and is continuing. If they do know of such a Default or Event of Default, the
certificate shall describe all such Defaults or Events of Default, their status
and the action the Company is taking or proposes to take with respect thereto.
The first certificate to be delivered by the Company pursuant to this Section
4.11 shall be for the fiscal year ending October 30, 1999.
Section 4.12 Reports to Holders
At all times from and after the earlier of (i) the date of the
commencement of an Exchange Offer or the effectiveness of the Shelf Registration
Statement (the "Registration Date") and (ii) the date 180 days after the Issue
Date, in either case, whether or not the Company is then required to file
reports with the Commission, the Company will file with the Commission (to the
extent accepted by the Commission):
(1) all quarterly and annual financial information that would be
required to be contained in a filing with the SEC on Forms 10-Q and 10-K if the
Company were required to file such Forms, including a "Management's Discussion
and Analysis of Financial Condition and Results of Operations" and, with respect
to the annual information only, a report on the annual financial statements by
the Company's certified independent accountants; and
(2) all current reports that would be required to be filed with the
SEC on Form 8-K if the Company were required to file such reports.
If the Company has designated any of its Subsidiaries as Unrestricted
Subsidiaries, or if any of the Company's Subsidiaries are not Guarantors, then
the quarterly and annual financial information required by the preceding
paragraph shall include a reasonably detailed presentation, either on the face
of the financial statements or in the footnotes thereto, and in Management's
Discussion and Analysis of Financial Condition and Results of Operations, of the
financial condition and results of operations of the Company and its Restricted
Subsidiaries that are Guarantors separate from the financial condition and
results of operations of the Subsidiaries that are not Guarantors and the
Unrestricted Subsidiaries of the Company.
In addition, whether or not required by the SEC, the Company will file
a copy of all of the information and reports referred to in clauses (1) and (2)
above with the SEC for public availability within the time periods specified in
the SEC rules and regulations (unless the SEC will not accept such a filing) and
make such information available to securities analysts and prospective investors
upon request. For all reporting periods ending on a date subsequent to June 17,
1999, the Issuer shall include in each Form 10-Q and Form 10-K a presentation,
which need not be audited, of sales, operating income, interest expense,
depreciation and amortization, and capital expenditures for such operating
period and the twelve months ended on the last day of such reporting period, on
a pro forma basis consistent with Article 11 of Regulation S-X of the Exchange
Act.
The Company will also be required (a) to supply the Trustee and each
Holder of Securities, or supply to the Trustee for forwarding to each such
Holder, without cost to such Holder, copies of such reports and other documents
within 15 days after the date on which the Company files such reports and
documents with the Commission or the date on which the Company would be required
to file such reports and documents if the Company were so required and (b) if
filing such reports and documents with the Commission is not accepted by the
Commission or is prohibited under the Exchange Act, to supply at the Company's
cost copies of such reports and documents to any prospective Holder of
Securities promptly upon written request. In addition, at all times prior to the
earlier of the Registration Date and the date 180 days after the Issue Date, the
Company will, at its cost, deliver to each Holder of the Securities quarterly
and annual reports substantially equivalent to those that would be required by
the Exchange Act. Furthermore, at all times prior to the Registration Date, the
Company will supply at the Company's cost copies of such reports and documents
to any prospective Holder of Securities promptly upon written request and as
required by Rule 144A(d)(4) 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 Officers' Certificates).
Section 4.13 Waiver of Stay, Extension or Usury Laws
Each of the Company and the Guarantors covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law, which would prohibit or forgive the
Company or such Guarantor from paying all or any portion of the principal of
and/or interest, if any, on the Securities as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) the Company and each Guarantor hereby expressly waive all
benefit or advantage of any such law, and covenants that it 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 4.14 Change of Control
(a) Upon the occurrence of a Change of Control, each Holder will
have the right to require that the Company purchase all or a portion (equal to
$1,000 or an integral multiple thereof) of such Holder's Securities pursuant to
the offer described below (the "Change of Control Offer"), at a purchase price
in cash equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest to the date of purchase.
(b) Prior to complying with any of the provisions of this Section
4.14, but in any event within 90 days following any Change of Control, the
Company covenants to (i) repay in full and terminate all commitments under
Indebtedness under the Credit Facilities and all other Senior Debt the terms of
which require repayment upon a Change of Control or offer to repay in full and
terminate all commitments under all Indebtedness under the Credit Facilities and
all other such Senior Debt and to repay the Indebtedness owed to each lender
which has accepted such offer or (ii) obtain the requisite consents under the
Credit Facilities and all other such Senior Debt to permit the repurchase of the
Securities as provided below. The Company will publicly announce the results of
the Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.
(c) Within 10 days following the date upon which the Change of
Control occurred, the Company must send, by first class mail, a notice to each
Holder, with a copy to the Trustee, which notice shall govern the terms of the
Change of Control Offer. Such notice shall state:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.14 and that all Securities tendered and not withdrawn will be accepted
for payment;
(2) the purchase price (including the amount of accrued interest)
and the purchase date, which must be no earlier than 30 days nor later than 60
days from the date such notice is mailed, other than as may be required by law
(the "Change of Control Payment Date");
(3) that any Security not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in making payment therefor,
any Security accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have a Security purchased pursuant to
a Change of Control Offer will be required to surrender the Security, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Security completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day prior to the Change of
Control Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than five Business Days prior to the Change of
Control Payment Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Securities the
Holder delivered for purchase and a statement that such Holder is withdrawing
his election to have such Securities purchased;
(7) that Holders whose Securities are purchased only in part will
be issued new Securities in a principal amount equal to the unpurchased portion
of the Securities surrendered; provided that each Security purchased and each
new Security issued shall be in an original principal amount of $1,000 or
integral multiples thereof; and
(8) the circumstances and relevant facts regarding such Change of
Control.
On or before 10:00 a.m., New York time, on the Change of Control
Payment Date, the Company shall (i) accept for payment Securities or portions
thereof validly tendered pursuant to the Change of Control Offer, (ii) deposit
with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Securities or portions thereof so tendered and (iii) deliver or
cause to be delivered to the Trustee Securities so accepted together with an
Officers' Certificate stating the aggregate principal amount of Securities or
portions thereof being purchased by the Company. The Paying Agent shall promptly
mail to the Holders of Securities so tendered the Change of Control Payment for
such securities, and the Trustee shall promptly authenticate and mail (or cause
to be transferred by book entry) to such Holders new Securities equal in
principal amount to any unpurchased portion of the Securities surrendered, if
any; provided that each such new security will be in a principal amount of
$1,000 or an integral multiple thereof. Any Securities not so accepted shall be
promptly mailed by the Company to the Holder thereof. For purposes of this
Section 4.14, the Trustee shall act as the Paying Agent.
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Securities pursuant to a Change of Control Offer.
The provisions described above that require the Company to make a
Change of Control Offer following a Change of Control will be applicable
regardless of whether or not any other provisions of this Indenture are
applicable.
The Company will not be required to make a Change of Control Offer upon
a Change of Control 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 4.14.
Section 4.15 Prohibition on Incurrence of Senior Subordinated Indebtedness
The Company will not incur, create, issue, assume, guarantee or
otherwise become liable for any Indebtedness that is subordinate or junior in
right of payment to any Senior Debt of the Company and senior in any respect in
right of payment to the Securities. No Guarantor will incur, create, issue,
assume, guarantee or otherwise become liable for any Indebtedness that is
subordinate or junior in right of payment to any Senior Debt of such Guarantor
and senior in any respect in right of payment to such Guarantor's Subsidiary
Guarantee.
Section 4.16 Limitation on Dividend and Other Payment Restrictions Affecting
Subsidiaries
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or permit to exist or become
effective any encumbrance or restriction on the ability of any Restricted
Subsidiary to:
(1) pay dividends or make any other distributions on its Capital
Stock to the Company or any of the Company's Restricted Subsidiaries, or with
respect to any other interest or participation in, or measured by, its profits,
or pay any indebtedness owed to the Company or any of the Company's Restricted
Subsidiaries;
(2) make loans or advances to the Company or any of the Company's
Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company or any
of the Company's Restricted Subsidiaries.
However, the preceding restrictions will not apply to encumbrances or
restrictions existing under or by reason of:
(1) Existing Indebtedness and the Credit Agreement, in each case as
in effect on the Issue Date and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings
thereof, provided that such amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings are no more
restrictive, taken as a whole, with respect to such dividend and other payment
restrictions than those contained in such Existing Indebtedness or the Credit
Agreement, as in effect on the Issue Date;
(2) the Indenture, the Subsidiary Guarantees and the Securities;
(3) applicable law;
(4) any instrument governing Indebtedness or Capital Stock of a
Person acquired by the Company or any of its Restricted Subsidiaries as in
effect at the time of such acquisition (except to the extent such Indebtedness
was incurred in connection with or in contemplation of such acquisition), which
encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or assets of the
Person, so acquired, provided that, in the case of Indebtedness, such
Indebtedness was permitted by the terms of the Indenture to be incurred;
(5) customary non-assignment provisions in licenses or leases
entered into in the ordinary course of business and consistent with past
practices;
(6) purchase money or capital lease obligations for property
acquired in the ordinary course of business that impose restrictions on the
property so acquired of the nature described in clause (3) of the preceding
paragraph;
(7) any agreement for the sale or other disposition of a Restricted
Subsidiary that restricts distributions by such Restricted Subsidiary pending
its sale or other disposition;
(8) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Permitted Refinancing
Indebtedness are no more restrictive, taken as a whole, than those contained in
the agreements governing the Indebtedness being refinanced;
(9) Liens securing Indebtedness otherwise permitted to be incurred
pursuant to the provisions of the covenant described under Section 4.18 that
limit the right of the Company or any of its Restricted Subsidiaries to dispose
of the assets subject to such Lien;
(10) provisions with respect to the disposition or distribution of
assets or property in joint venture agreements and other similar agreements
entered into in the ordinary course of business; and
(11) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business.
Section 4.17 [This Section has been intentionally omitted]
Section 4.18 Limitation on Liens
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien of any kind securing Indebtedness, Attributable Debt or trade
payables on any asset now owned or hereafter acquired, except Permitted Liens.
Section 4.19 Limitation of Guarantees by Restricted Subsidiaries
The Company will not permit any of its Restricted Subsidiaries,
directly or indirectly, to Guarantee or pledge any assets to secure the payment
of any other Indebtedness of the Company unless such Restricted Subsidiary
simultaneously executes and delivers a supplemental indenture providing for the
Guarantee of the payment of the Securities by such Restricted Subsidiary, which
Guarantee shall be senior to or pari passu with such Restricted Subsidiary's
Guarantee of or pledge to secure such other Indebtedness, unless such other
Indebtedness is Senior Debt, in which case the Guarantee of the Securities shall
be subordinated to the Guarantee of such Senior Debt to the same extent as the
Securities are subordinated to such Senior Debt.
Section 4.20 Conduct of Business
The Company and its Restricted Subsidiaries will not engage in any
businesses which are not the same, similar or reasonably related or
complementary to the Permitted Businesses (as determined in good faith by the
Board of Directors of the Company).
Section 4.21 Corporate Existence
Except as otherwise permitted by Article Five, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the corporate, partnership or other existence
of each of its Restricted Subsidiaries in accordance with the respective
organizational documents of each Restricted Subsidiary and the rights (charter
and statutory) of the Company and each of its Restricted Subsidiaries; provided,
however, that the Company shall not be required to preserve any such right or
corporate existence of any Restricted Subsidiary if the Board of Directors of
the Company shall determine that the preservation thereof is no longer desirable
in the conduct of the Permitted Businesses of the Company and its Restricted
Subsidiaries, taken as a whole, and that the loss thereof is not, and will not
be, adverse in any material respect to the Holders.
Section 4.22 Limitation on Sale and Leaseback Transactions
The Company will not, and will not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction; provided that
the Company or any Restricted Subsidiary of the Company that is a Guarantor may
enter into a sale and leaseback transaction if:
(1) the Company or that Guarantor, as applicable, could have (a)
incurred Indebtedness in an amount equal to the Attributable Debt relating to
such sale and leaseback transaction under the Fixed Charge Coverage Ratio test
in Section 4.04 and (b) incurred a Lien to secure such Indebtedness pursuant to
Section 4.18;
(2) the gross cash proceeds of that sale and leaseback transaction
are at least equal to the fair market value, as determined in good faith by the
Board of Directors and set forth in an Officers' Certificate delivered to the
Trustee, of the property that is the subject of such sale and leaseback
transaction; and
(3) the transfer of assets in that sale and leaseback transaction
is permitted by, and the Company applies the proceeds of such transaction in
compliance with Section 4.05.
Section 4.23 Limitation on Issuance and Sales of Equity Interests in Wholly
Owned Restricted Subsidiaries
(A) The Company will not, and will not permit any of its Restricted
Subsidiaries to, transfer, convey, sell, lease or otherwise dispose of any
Equity Interests in any Wholly Owned Restricted Subsidiary of the Company to any
Person (other than the Company or a Wholly Owned Restricted Subsidiary of the
Company), unless:
(1) such transfer, conveyance, sale, lease or other disposition is
of all the Equity Interests in such Wholly Owned Restricted Subsidiary; and
(2) the cash Net Proceeds from such transfer, conveyance, sale,
lease or other disposition are applied in accordance with the covenant described
above under Section 4.05;
provided, however, that the restrictions in clauses (1) and (2) above shall not
apply to (a) the issuance of Disqualified Stock in compliance with Section 4.04
or (b) the pledge of the Capital Stock of any Restricted Subsidiary of the
Company in compliance with Section 4.18.
(B) The Company will not permit any Wholly Owned Restricted
Subsidiary of the Company to issue any of its Equity Interests (other than, if
necessary, shares of its Capital Stock constituting directors' qualifying
shares) to any Person other than to the Company or a Wholly Owned Restricted
Subsidiary of the Company.
Section 4.24 Designation of Restricted and Unrestricted Subsidiaries
The Board of Directors may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary if that designation would not cause a Default. If a
Restricted Subsidiary is designated as an Unrestricted Subsidiary, all
outstanding Investments owned by the Company and its Restricted Subsidiaries in
the Subsidiary so designated will be deemed to be an Investment made as of the
time of such designation and will either reduce the amount available for
Restricted Payments under the first paragraph of Section 4.06 or reduce the
amount available for future Investments under one or more clauses of the
definition of "Permitted Investments." All such outstanding Investments will be
valued at their fair market value at the time of such designation. That
designation will only be permitted if such Restricted Payment would be permitted
at that time and if such Restricted Subsidiary otherwise meets the definition of
an Unrestricted Subsidiary. The Board of Directors may redesignate any
Unrestricted Subsidiary to be a Restricted Subsidiary if the redesignation would
not cause a Default.
Section 4.25 Payments for Consent
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, pay or cause to be paid any consideration to or for the
benefit of any Holder of Securities for or as an inducement to any consent,
waiver or amendment of any of the terms or provisions of the Indenture or the
Securities unless such consideration is offered to be paid and is paid to all
Holders that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.
Section 4.26 Future Subsidiary Guarantors
If the Company or any of its Restricted Subsidiaries acquires or
creates another Domestic Subsidiary after the Issue Date or if any Foreign
Subsidiary becomes a Domestic Subsidiary, then (a) that newly acquired or
created Restricted Subsidiary must become a Guarantor and execute a Supplemental
Indenture, substantially in the form of Exhibit F attached hereto, and (b) the
Company shall deliver (i) an Officer's Certificate substantially in the form of
Exhibit G attached hereto and (ii) an Opinion of Counsel to the Trustee, each
within 10 Business Days of the date on which such Subsidiary was acquired or
created; provided, however, that this covenant shall not apply to any Subsidiary
that has been properly designated as an Unrestricted Subsidiary.
ARTICLE FIVE
MERGERS, CONSOLIDATIONS AND ASSET SALES; SUCCESSORS
Section 5.01 Merger, Consolidation and Sale of Assets
(A) The Company will not, directly or indirectly: (1) consolidate
or merge with or into another Person (whether or not the Company is the
surviving corporation); or (2) sell, assign, transfer, convey or otherwise
dispose of all or substantially all of its properties or assets, in one or more
related transactions, to another Person; unless:
(i) either: (a) the Company is the surviving corporation; or (b)
the Person formed by or surviving any such consolidation or merger (if other
than the Company) or to which such sale, assignment, transfer, conveyance or
other disposition shall have been made is a corporation organized or existing
under the laws of the United States, any state thereof or the District of
Columbia;
(ii) the Person formed by or surviving any such consolidation or
merger (if other than the Company) or the Person to which such sale, assignment,
transfer, conveyance or other disposition shall have been made assumes all the
obligations of the Company under the Securities, the Indenture and the
Registration Rights Agreement pursuant to agreements reasonably satisfactory to
the Trustee;
(iii) immediately after such transaction no Default or Event of
Default exists; and
(iv) the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company):
(a) will have Consolidated Net Worth immediately after the
transaction equal to or greater than the Consolidated Net Worth of the Company
immediately preceding the transaction; and
(b) will, on the date of such transaction after giving pro forma
effect thereto and any related financing transactions as if the same had
occurred at the beginning of the applicable four-quarter period, be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in the first paragraph of Section 4.04.
In addition, the Company may not, directly or indirectly, lease all or
substantially all of its properties or assets, in one or more related
transactions, to any other Person. This Section 5.01 will not apply to a sale,
assignment, transfer, conveyance or other disposition of assets between or among
the Company and any of its Wholly Owned Restricted Subsidiaries.
Notwithstanding the foregoing clauses (ii), (iii) and (iv), (a) any
Restricted Subsidiary may consolidate with, merge into or transfer all or part
of its property and assets to the Company or any other Restricted Subsidiary and
(b) the Company may merge with an Affiliate incorporated solely for the purpose
of reincorporating the Company in another jurisdiction.
For purposes of the foregoing, the transfer (by lease, assignment, sale
or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries of the Company, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
(B) Each Guarantor (other than any Guarantor whose Guarantee is to be
released in accordance with the terms of the Guarantee and this Indenture in
connection with any transaction complying with the provisions of Section 4.05)
will not, and the Company will not cause or permit any Guarantor to, consolidate
with or merge with or into any Person other than the Company or any other
Guarantor unless: (i) the entity formed by or surviving any such consolidation
or merger (if other than the Guarantor) or to which such sale, lease, conveyance
or other disposition shall have been made is a corporation organized and
existing under the laws of the United States or any state thereof or the
District of Columbia; (ii) such entity assumes by supplemental indenture all of
the obligations of the Guarantor on the Guarantee; (iii) immediately after
giving effect to such transaction, no Default or Event of Default shall have
occurred and be continuing; and (iv) immediately after giving effect to such
transaction and the use of any net proceeds therefrom on a pro forma basis, the
Company could satisfy the provisions of clause (ii) of the first paragraph of
this Section 5.01. Notwithstanding the foregoing clause (iv), (a) any Guarantor
may consolidate with, merge into or transfer all or part of its property and
assets to the Company or any other Guarantor and (b) any Guarantor formed solely
for the purpose of merging with and into any other Person, may merge with or
into such Person.
Section 5.02 Successor Substituted
Upon any consolidation, combination or merger or any transfer of all or
substantially all of the assets of the Company in accordance with the foregoing,
in which the Company is not the continuing corporation, the successor Person
formed by such consolidation or into which the Company is merged or to which
such conveyance, lease or transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
and the Securities with the same effect as if such surviving entity had been
named as such.
ARTICLE SIX
DEFAULT AND REMEDIES
Section 6.01 Events of Default
Each of the following is an Event of Default:
(i) default for 30 days in the payment when due of interest on the
Securities, whether or not prohibited by the subordination provisions of the
Indenture;
(ii) default in payment when due of the principal of or premium, if
any, on the Securities, whether or not prohibited by the subordination
provisions of the Indenture;
(iii) failure by the Company or any of its Subsidiaries to comply
with the provisions described under Sections 4.04, 4.05, 4.06, 4.14, or 4.26 or
Article Five;
(iv) failure by the Company or any of its Restricted Subsidiaries
for 60 days after notice to comply with any of the other agreements in the
Indenture or the Securities;
(v) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any of its
Restricted Subsidiaries) whether such Indebtedness or guarantee now exists, or
is created after the Issue Date, if that default:
(a) is caused by a failure to pay principal of such Indebtedness
when due at final stated maturity (after giving effect to any grace period
related thereto) (a "Payment Default"); or
(b) results in the acceleration of such Indebtedness prior to its
express maturity,
(1) and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of which has been
so accelerated, aggregates $5.0 million or more;
(2) (vi) failure by the Company or any of its Restricted
Subsidiaries to pay final judgments aggregating in excess of $5.0 million (net
of any amounts with respect to which a reputable and creditworthy insurance
company has acknowledged liability in writing), which judgments are not paid,
discharged or stayed for a period of 60 days;
(3) (vii) except as permitted by the Indenture, any Subsidiary
Guarantee shall be held in any judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and effect or any
Guarantor, or any Person acting on behalf of any Guarantor, shall deny or
disaffirm its obligations under its Subsidiary Guarantee;
(4) (viii) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company or any Restricted Subsidiary
a bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company or any Restricted Subsidiary that is a Significant Subsidiary under the
U.S. Federal Bankruptcy Code or any other applicable federal, state or foreign
law, or appointing a receiver, liquidator, assignee, trustee or sequestrator (or
other similar official) of the Company or any Restricted Subsidiary that is a
Significant Subsidiary or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; and
(5) (ix) the institution by the Company or any Restricted
Subsidiary of proceedings to be adjudicated a bankrupt or insolvent, or the
consent by it to the institution of bankruptcy or insolvency proceedings against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under the U.S. Federal Bankruptcy Code or any other
applicable federal, state or foreign law, or the consent by it to the filing of
any such petition or to the appointment of a receiver, liquidator, assignee,
trustee or sequestrator (or other similar official) of the Company or any
Restricted Subsidiary or of any substantial part of its property, or the making
by it of an assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due.
Section 6.02 Acceleration
In the case of an Event of Default arising from certain events of
bankruptcy or insolvency, with respect to the Company, any Restricted Subsidiary
that is a Significant Subsidiary or any group of Restricted Subsidiaries that,
taken together, would constitute a Significant Subsidiary, all outstanding
Securities will become due and payable immediately without further action or
notice. If any other Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the then outstanding
Securities may declare all the Securities to be due and payable by notice in
writing to the Company and the Trustee specifying the respective Event of
Default and that it is a notice of acceleration (the "Acceleration Notice") and
the same (i) shall become immediately due and payable or (ii) if there are any
amounts outstanding under the Credit Agreement, shall become immediately due and
payable upon the first to occur of an acceleration under the Credit Agreement or
five Business Days after receipt by the Company and the Representative under the
Credit Agreement of such Acceleration Notice but only if such Event of Default
is then continuing.
In the event of a declaration of acceleration of the Securities because
an Event of Default has occurred and is continuing as a result of the
acceleration of any Indebtedness described in clause (v) of Section 6.01, the
declaration of acceleration of the Securities shall be automatically annulled if
the holders of any Indebtedness described in such clause (v) have rescinded the
declaration of acceleration in respect of such Indebtedness within 30 days of
the date of such declaration and if (i) the annulment of the acceleration of the
Securities would not conflict with any judgment or decree of a court of
competent jurisdiction, and (ii) all existing Events of Default, except
nonpayment of principal or interest on the Securities that became due solely
because of the acceleration of the Securities, have been cured or waived. The
Trustee may withhold from Holders of the Securities notice of any continuing
Default or Event of Default (except a Default or Event of Default relating to
the payment of principal or interest) if it determines that withholding notice
is in their interest.
If an Event of Default occurs on or after June 15, 2004 by reason of
any willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding payment of the premium that the Company
would have had to pay if the Company then had elected to redeem the Securities
pursuant to Section 3.07(b) hereof, then, upon acceleration of the Securities,
an equivalent premium shall also become and be immediately due and payable, to
the extent permitted by law, anything in this Indenture or in the Securities to
the contrary notwithstanding. If an Event of Default occurs prior to June 15,
2004 by reason of any willful action (or inaction) taken (or not taken) by or on
behalf of the Company with the intention of avoiding the prohibition on
redemption of the Securities prior to such date, then, upon acceleration of the
Securities, an additional premium shall also become and be immediately due and
payable in an amount, for each of the years beginning on June 15 of the years
set forth below, as set forth below (expressed as a percentage of the principal
amount of the Securities on the date of payment that would otherwise be due but
for the provisions of this sentence):
Year Percentage
1999................................................ 111.375%
2000................................................ 110.238%
2001................................................ 109.101%
2002................................................ 107.964%
2003................................................ 106.827%
Section 6.03 Other Remedies
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy by proceeding at law or in equity to collect the payment of
principal of or interest on the Securities or to enforce the performance of any
provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy maturing
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 to the extent permitted by
law.
Section 6.04 Waiver of Past Default
The Holders of a majority in aggregate principal amount of the
Securities then outstanding by written notice to the Trustee may on behalf of
the Holders of all of the Securities waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing Default or
Event of Default in the payment of interest on, or the principal of, the
Securities.
Section 6.05 Control by Majority
Holders of the Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Securities may
direct the Trustee in its exercise of any trust or power. However, the Trustee
may refuse to follow any direction that conflicts with law or this Indenture or
that the Trustee determines may be unduly prejudicial to the rights of another
Holder, or that may involve the Trustee in personal liability; provided,
however, that the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction. In the event the Trustee takes
any action or follows any direction pursuant to this Indenture, the Trustee
shall be entitled to indemnification satisfactory to it in its sole discretion
against any loss or expense caused by taking such action or following such
direction. This Section 6.05 shall be in lieu of ss. 316(a)(1)(A) of the TIA,
and such ss. 316(a)(1)(A) of the TIA is hereby expressly excluded from this
Indenture and the Securities, as permitted by the TIA.
Section 6.06 Limitation on Suits
A Holder may not pursue any remedy with respect to this Indenture or
the Securities unless:
(i) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount of
the outstanding Securities make a written request to the Trustee to pursue a
remedy;
(iii) such Holder or Holders offer and, if requested, provide to
the Trustee indemnity satisfactory to the Trustee against any loss, liability or
expense;
(iv) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the provision of
indemnity; and
(v) during such 60-day period the Holders of a majority in
principal amount of the outstanding Securities do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with the
request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
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 premium, if any or interest on a
Security, on or after the respective due dates expressed in the Security, 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 the Holder.
Section 6.08 Collection Suit by Trustee
If an Event of Default in payment of principal or interest specified in
Section 6.01(i) or (ii) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
or any other obligor on the Securities for the whole amount of principal and
accrued interest remaining unpaid, together with interest overdue on principal
and to the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate per annum borne by the
Securities and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Holders allowed in
any judicial proceedings relative to the Company or any other obligor upon the
Securities, their respective creditors or their respective property and shall be
entitled and empowered to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same, and any
Custodian in any such judicial proceedings is hereby authorized by each Holder
to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel, and any other
amounts due the Trustee under Section 7.07. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 6.10 Priorities
If the Trustee collects any money or property pursuant to this Article
Six, it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Securities for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for principal and
interest, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix a record
date and payment date for any payment to Holders pursuant to this Section 6.10.
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 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 shall not apply to a suit by the Trustee, a suit by
a Holder or group of Holders of more than 10% in aggregate principal amount of
the outstanding Securities, or to any suit instituted by any Holder for the
enforcement or the payment of the principal or interest on any Securities on or
after the respective due dates expressed in the Security.
Section 6.12 Notice of Defaults
The Company shall deliver to the Trustee annually a statement regarding
compliance with the Indenture. Upon becoming aware of any Default or Event of
Default, the Company shall also deliver to the Trustee a statement specifying
such Default or Event of Default.
ARTICLE SEVEN
TRUSTEE
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, 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 duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only those
duties that are specifically set forth in this Indenture and no others, and no
implied covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
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 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) Whether or not therein expressly so provided, 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) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability. The
Trustee shall be under no obligation to exercise any of its rights and powers
under this Indenture at the request, order or direction of any of the Holders
unless such Holders shall have offered to the Trustee reasonable security or
indemnity satisfactory to it against any loss, liability or expense that might
be incurred by the Trustee in compliance with such request, order or direction.
(f) 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.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.02 Certain Rights of Trustee
(a) The Trustee may conclusively rely upon any document,
certificate, opinion, report, notice, request, direction, order, note or other
evidence of indebtedness, whether in its original or facsimile form, 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 any such document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel of its selection and the advice or opinion of such counsel with respect
to legal matters relating in any way to this Indenture and the Securities shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture provided, however, that the
Trustee's conduct does not constitute willful misconduct, negligence or bad
faith.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) Except with respect to Section 4.01, the Trustee shall have no
duty to inquire as to the performance of the Company's covenants in Article Four
hereof. In addition, the Trustee shall not be deemed to have knowledge of any
Default or Event of Default except (i) any Event of Default occurring pursuant
to Sections 6.01(i), 6.01(ii) and 4.01 or (ii) any Default or Event of Default
of which a Responsible Officer of the Trustee shall have received written
notification at the Corporate Trust Office of the Trustee and such notice
references the Securities and this Indenture or obtained actual knowledge.
(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) 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 to each agent, custodian and other Person
employed to act hereunder.
Section 7.03 Individual Rights of Trustee
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, the Trustee must comply with Sections 7.10 and 7.11 of this
Indenture. In addition, if the Trustee has any conflicting interest within the
meaning of Section 310 of the TIA it must eliminate such conflict within 90
days, or resign. Any Agent may do the same with like rights and duties.
Section 7.04 Trustee's Disclaimer
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Securities, it shall not be
accountable for the Company's use of the proceeds from the Securities or any
money paid to the Company or upon the Company's direction under any provision of
this Indenture, it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the
Securities or any other document in connection with the sale of the Securities
or pursuant to this Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults
If a Default or Event of Default occurs and is continuing and if it is
actually known to a Responsible Officer of the Trustee, the Trustee shall mail
to each Holder of Securities a notice of the Default or Event of Default within
90 days after it occurs. Except in the case of a Default or Event of Default in
payment of principal of, premium, if any, or interest on any Security, the
Trustee may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of the Holders of the Securities.
Section 7.06 Reports by Trustee to Holders of the Securities
As promptly as practicable after each June 15 beginning with the June
15 following the date of the Indenture and for so long as the Securities remain
outstanding, and in any event prior to August 15 in each year, the Trustee shall
mail to the Holders of the Securities a brief report dated as of such reporting
date that complies with TIA Section 313(a) (but if no event described in TIA
Section 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply with TIA
Section 313(b)(2). The Trustee shall also transmit by mail all reports as
required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders of
Securities shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Securities are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee whenever the Securities
become listed on any stock exchange or delisted therefrom.
Section 7.07 Compensation and Indemnity
The Company shall pay to the Trustee such reasonable compensation, as
the Company and the Trustee shall from time to time agree in writing, for its
acceptance of this Indenture and its performance of services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. Except as otherwise provided herein, in addition to
compensating the Trustee for its services, the Company shall reimburse the
Trustee promptly upon request for all reasonable out-of-pocket expenses incurred
or made by it in accordance with any provision of this Indenture (except any
such expenses as may be attributable to the Trustee's negligence or bad faith).
Such expenses shall include the reasonable compensation, disbursements and
expenses of the Trustee's agents and counsel.
The Company shall indemnify each of the Trustee and any predecessor
Trustee against any and all losses, liabilities or expenses (including taxes
other than taxes based upon the income of the Trustee) incurred by it in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture against
the Company (including this Section 7.07) and defending itself against any claim
(whether asserted by the Company or any Holder or any other person) or liability
in connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence or bad faith. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel of its selection
and the Company shall pay the reasonable fees and expenses of such counsel. The
Company need not reimburse any expense or indemnify against any loss, liability
or expense incurred by the Trustee through the Trustee's own negligence or bad
faith. In addition, the Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 6.01(iv) hereof, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under the
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section 313(b)(2)
to the extent applicable.
Section 7.08 Replacement of Trustee
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders constituting a
majority in principal amount of the then outstanding Securities may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a receiver or other public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed 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. Within one year after the successor Trustee takes office, the Holders
of a majority in aggregate principal amount of the then outstanding Securities
may, at the expense of the Company, appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders owning at least 10% in aggregate principal amount of the then
outstanding Securities may, at the expense of the Company, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Security who
has been a Holder of a Security for at least six months, fails to comply with
Section 7.10, such Holder of a Security may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of 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 Holders of the Securities. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, provided
all sums owing to the Trustee (including its agents and counsel) hereunder have
been paid and subject to the Lien provided for in Section 7.07 hereof.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the
Company's obligations under Section 7.07 hereof shall continue for the benefit
of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, Etc
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of 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.
Section 7.10 Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements and comply with
Sections 310(a) and (b) of the TIA. Each successor Trustee shall be a
corporation organized and doing business under the laws of the United States of
America, any state thereof or the District of Columbia that is authorized under
such laws to exercise corporate trustee power, that is subject to supervision or
examination by Federal or state authorities and that has a combined capital and
surplus of at least $50.0 million as set forth in its most recent published
annual report of condition, subject to supervision or examination by Federal or
state authority; provided, however, that if Section 310(a) of the TIA or the
rules and regulations of the Commission under the TIA at any time permit a
corporation organized and doing business under the laws of any other
jurisdiction to serve as trustee of an indenture qualified under the TIA, this
Section 7.10 shall be automatically deemed amended to permit a corporation
organized and doing business under the laws of any such jurisdiction to serve as
Trustee hereunder. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any Person directly or indirectly controlling,
controlled by or under common control with the Company may serve as Trustee. If
at any time the Trustee with respect to any series of Securities shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 7.11 Preferential Collection of Claims Against Company
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to and comply with TIA Section 311 to the
extent required thereby.
ARTICLE EIGHT
SUBORDINATION OF SECURITIES
Section 8.01 Securities Subordinated to Senior Debt
The Company covenants and agrees, and the Trustee and each Holder of
the Securities by his acceptance thereof likewise covenant and agree, (i) that
all Securities shall be issued subject to the provisions of this Article Eight;
and each Person holding any Security, whether upon original issue or upon
transfer, assignment or exchange thereof, accepts and agrees that all payments
of principal, premium, if any, and interest on the Securities by the Company
shall, to the extent and in the manner set forth in this Article Eight, be
subordinated and junior in right of payment to the prior payment in full in cash
or Cash Equivalents of all amounts payable under Senior Debt of the Company,
whether outstanding on the Issue Date or thereafter incurred, and (ii) that the
subordination is for the benefit of, and shall be enforceable directly by, the
holders of Senior Debt, and that each holder of Senior Debt whether now
outstanding or hereafter created, incurred, assumed or guaranteed shall be
deemed to have acquired Senior Debt in reliance upon the covenants and
provisions contained in this Indenture and the Securities.
Section 8.02 No Payment on Securities in Certain Circumstances
If any default occurs and is continuing in the payment when due,
whether at maturity, upon any redemption, by acceleration or otherwise, of any
Obligations with respect to any Senior Debt (including interest after the
commencement of any bankruptcy proceeding at the rate specified in the
applicable Senior Debt, whether or not allowed as a claim in any such
proceeding), no payment of any kind or character shall be made by or on behalf
of the Company or any other Person on its behalf with respect to any Obligations
on the Securities or to acquire any of the Securities for cash or property or
otherwise (except that holders of the Securities may receive and retain
Permitted Junior Securities and payments from a trust described under Article
Nine so long as, on the date or dates the respective amounts were paid into the
trust, such payments were made with respect to the Securities in accordance with
the provisions of Article Nine and without violating the provisions of Article
Eight or Article Twelve of this Indenture (a "Defeasance Trust Payment")).
In addition, if any other event of default occurs and is continuing
with respect to any Designated Senior Debt, as such event of default is defined
in the instrument creating or evidencing such Designated Senior Debt, permitting
the holders of such Designated Senior Debt then outstanding to accelerate the
maturity thereof and if the Representative for the respective issue of
Designated Senior Debt gives written notice of the event of default to the
Trustee (a "Payment Blockage Notice"), then, unless and until all events of
default have been cured or waived or have ceased to exist or the Trustee
receives notice from the Representative for the respective issue of Designated
Senior Debt terminating the Payment Blockage Period, during the 179 days after
the date of receipt of such Payment Blockage Notice (the "Payment Blockage
Period"), neither the Company nor any other Person on either of their behalf
shall (x) make any payment of any kind or character with respect to any
Obligations on the Securities (except in Permitted Junior Securities or
Defeasance Trust Payments) or (y) acquire any of the Securities for cash or
property or otherwise.
Notwithstanding anything herein to the contrary, in no event will a
Payment Blockage Period extend beyond 180 days from the date the Payment
Blockage Notice is delivered and only one such Payment Blockage Period may be
commenced within any 360 consecutive days. No nonpayment event of default which
existed or was continuing on the date of the commencement of any Payment
Blockage Period with respect to the Designated Senior Debt shall be, or be made,
the basis for commencement of a second Payment Blockage Period by the
Representative of such Designated Senior Debt whether or not within a period of
360 consecutive days, unless such event of default shall have been cured or
waived for a period of not less than 180 consecutive days (it being acknowledged
that any subsequent action, or any breach of any financial covenants for a
period commencing after the date of commencement of such Payment Blockage Period
that, in either case, would give rise to an event of default pursuant to any
provisions under which an event of default previously existed or was continuing
shall constitute a new event of default for this purpose).
In the event that, notwithstanding the foregoing provisions of this
Section 8.02 prohibiting such payment or distribution, any payment or
distribution of assets or securities of the Company of any kind or character,
whether in cash, property or securities (excluding any Defeasance Trust
Payment), shall be received by the Trustee or any Holder of Securities at a time
when such payment or distribution is prohibited by the first two paragraphs of
this Section 8.02 and before all Obligations in respect of Senior Debt of the
Company are paid in full in cash or Cash Equivalents, such payment or
distribution shall be received and held in trust for the benefit of, and shall
be paid over or delivered to, the holders of Senior Debt of the Company (pro
rata to such holders on the basis of the respective amounts of Senior Debt held
by such holders) or their representatives, or to the trustee or trustees or
agent or agents under any indenture pursuant to which any of such Senior Debt
may have been issued, as their respective interests may appear, for application
to the payment of such Senior Debt remaining unpaid until all such Senior Debt
has been paid in full in cash or Cash Equivalents after giving effect to any
prior or concurrent payment, distribution or provision therefor to or for the
holders of such Senior Debt.
Section 8.03 Payment Over of Proceeds upon Dissolution, etc
(a) Upon any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to creditors
upon any total or partial liquidation, dissolution, winding up, reorganization,
assignment for the benefit of creditors or marshaling of assets of the Company
or in a bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to the Company or its property, whether voluntary or
involuntary, all Obligations due or to become due upon all Senior Debt
(including interest after the commencement of any such proceeding at the rate
specified in the applicable Senior Debt whether or not such interest is an
allowed claim in such proceeding) shall first be paid in full in cash or Cash
Equivalents before any payment or distribution of any kind or character is made
on account of any Obligations on the Securities, or for the acquisition of any
of the Securities for cash or property or otherwise (except that holders of the
Securities may receive and retain Permitted Junior Securities and Defeasance
Trust Payments). Before any payment may be made by, or on behalf of, the Company
of any Obligations on the Securities upon any such dissolution or winding-up or
total liquidation or reorganization, any payment or distribution of assets or
securities of the Company of any kind or character, whether in cash, property or
securities (excluding any Defeasance Trust Payment), to which the Holders of the
Securities or the Trustee on their behalf would be entitled, but for the
subordination provisions of this Indenture, shall be made by the Company or by
any receiver, trustee in bankruptcy, liquidation trustee, agent or other Person
making such payment or distribution, directly to the holders of the Senior Debt
of the Company (pro rata to such holders on the basis of the respective amounts
of Senior Debt held by such holders) or their representatives or to the trustee
or trustees or agent or agents under any agreement or indenture pursuant to
which any of such Senior Debt may have been issued, as their respective
interests may appear, to the extent necessary to pay all such Senior Debt in
full in cash or Cash Equivalents after giving effect to any prior or concurrent
payment, distribution or provision therefor to or for the holders of such Senior
Debt.
(b) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of assets
or securities of the Company of any kind or character, whether in cash, property
or securities (excluding any Defeasance Trust Payment), shall be received by the
Trustee or any Holder of Securities at a time when such payment or distribution
is prohibited by Section 8.03(a) and before all Obligations in respect of Senior
Debt of the Company are paid in full in cash or Cash Equivalents, such payment
or distribution shall be received and held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Debt of the Company
(pro rata to such holders on the basis of the respective amounts of Senior Debt
held by such holders) or their representatives, or to the trustee or trustees or
agent or agents under any indenture pursuant to which any of such Senior Debt
may have been issued, as their respective interests may appear, for application
to the payment of such Senior Debt remaining unpaid until all such Senior Debt
has been paid in full in cash or Cash Equivalents after giving effect to any
prior or concurrent payment, distribution or provision therefor to or for the
holders of such Senior Debt.
(c) To the extent any payment of Senior Debt (whether by or on
behalf of the Company, as proceeds of security or enforcement of any right of
setoff or otherwise) is declared to be fraudulent or preferential, set aside or
required to be paid to any receiver, trustee in bankruptcy, liquidating trustee,
agent or other similar Person under any bankruptcy, insolvency, receivership,
fraudulent conveyance or similar law, then, if such payment is recovered by, or
paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent
or other similar Person, the Senior Debt or part thereof originally intended to
be satisfied shall be deemed to be reinstated and outstanding as if such payment
has not occurred.
The consolidation of the Company with, or the merger of the Company
with or into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided in Article Five shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 8.03
if such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article Five.
Section 8.04 Subrogation
Upon the payment in full in cash or Cash Equivalents of all Senior Debt
of the Company, the Holders of the Securities shall be subrogated to the rights
of the holders of such Senior Debt to receive payments or distributions of cash,
property or securities of the Company made on such Senior Debt until the
principal of and interest on the Securities shall be paid in full in cash or
Cash Equivalents; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Debt of the Company of any cash,
property or securities to which the Holders of the Securities or the Trustee on
their behalf would be entitled except for the provisions of this Article Eight,
and no payment over pursuant to the provisions of this Article Eight to the
holders of Senior Debt of the Company by Holders of the Securities or the
Trustee on their behalf shall, as between the Company, its creditors other than
holders of Senior Debt of the Company, and the Holders of the Securities, be
deemed to be a payment by the Company to or on account of the Senior Debt of the
Company. It is understood that the provisions of this Article Eight are and are
intended solely for the purpose of defining the relative rights of the Holders
of the Securities, on the one hand, and the holders of the Senior Debt of the
Company, on the other hand.
If any payment or distribution to which the Holders of the Securities
would otherwise have been entitled but for the provisions of this Article Eight
shall have been applied, pursuant to the provisions of this Article Eight, to
the payment of all amounts payable under Senior Debt, then and in such case, the
Holders of the Securities shall be entitled to receive from the holders of such
Senior Debt any payments or distributions received by such holders of Senior
Debt in excess of the amount required to make payment in full in cash of such
Senior Debt.
Section 8.05 Obligations of the Company Unconditional
Nothing contained in this Article Eight or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as among the Company and
the Holders of the Securities, the obligation of the Company, which is absolute
and unconditional, to pay to the Holders of the Securities the principal of and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Company other than
the holders of the Senior Debt of the Company, nor shall anything herein or
therein prevent the Holder of any Security or the Trustee on their behalf from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article Eight of the
holders of the Senior Debt of the Company in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
Without limiting the generality of the foregoing, nothing contained in
this Article Eight shall restrict the right of the Trustee or the Holders of
Securities to take any action to declare the Securities to be due and payable
prior to their stated maturity pursuant to Section 6.01 or to pursue any rights
or remedies hereunder; provided, however, that all Senior Debt of the Company
then due and payable shall first be paid in full in cash or Cash Equivalents
before the Holders of the Securities or the Trustee are entitled to receive any
direct or indirect payment from, or on behalf of, the Company on account of any
Obligations on the Securities.
Section 8.06 Notice to Trustee
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities pursuant to the provisions of this Article
Eight (although the failure to give any such notice shall not affect the
subordination provisions set forth in this Article Eight). The Trustee shall not
be charged with knowledge of the existence of any event of default with respect
to any Senior Debt of the Company or of any other facts which would prohibit the
making of any payment to or by the Trustee unless and until the Trustee shall
have received notice in writing at its Corporate Trust Office to that effect
signed by an Officer of the Company, or by a holder of Senior Debt or trustee or
agent therefor; and prior to the receipt of any such written notice, the Trustee
shall, subject to Article Seven, be entitled to assume that no such facts exist;
provided, however, that if the Trustee shall not have received the notice
provided for in this Section 8.06 at least two Business Days prior to the date
upon which by the terms of this Indenture any moneys shall become payable for
any purpose (including, without limitation, the payment of the principal of or
interest on any Security), then, regardless of anything herein to the contrary,
the Trustee shall have full power and authority to receive any moneys from the
Company and to apply the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary which may be received by it
on or after such prior date (although the receipt of such moneys by any Holder
of Securities shall otherwise be subject to the provisions of this Article
Eight). Nothing contained in this Section 8.06 shall limit the right of the
holders of Senior Debt of the Company to recover payments from Holders as
contemplated by Section 8.02 or 8.03. The Trustee shall be entitled to rely on
the delivery to it of a written notice by a Person representing himself or
itself to be a holder of any Senior Debt of the Company (or a trustee on behalf
of, or other representative of, such holder) to establish that such notice has
been given by a holder of such Senior Debt or a trustee or representative on
behalf of any such holder.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Debt of the Company to participate in any payment or distribution
pursuant to this Article Eight, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Debt of the Company held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article Eight, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
Section 8.07 Reliance on Judicial Order or Certificate of Liquidating Agent
Upon any payment or distribution of assets or securities referred to in
this Article Eight, the Trustee and the Holders of the Securities shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which bankruptcy, dissolution, winding-up, liquidation or
reorganization proceedings are pending, or upon a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution, delivered to the Trustee or to the Holders of the
Securities for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Debt of the Company and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Eight.
Section 8.08 Trustee's Relation to Senior Debt
The Trustee and any Paying Agent shall be entitled to all the rights
set forth in this Article Eight with respect to any Senior Debt of the Company
which may at any time be held by it in its individual or any other capacity to
the same extent as any other holder of Senior Debt of the Company, and nothing
in this Indenture shall deprive the Trustee or any Paying Agent of any of its
rights as such holder.
With respect to the holders of Senior Debt of the Company, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Eight, and no implied covenants or
obligations with respect to the holders of Senior Debt of the Company shall be
read into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Debt of the Company (except as
provided in Section 8.03(b)). The Trustee shall not be liable to any such
holders if the Trustee shall in good faith mistakenly pay over or distribute to
Holders of Securities or to the Company or to any other person cash, property or
securities to which any holders of Senior Debt of the Company shall be entitled
by virtue of this Article Eight or otherwise.
Section 8.09 Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Debt
No right of any present or future holders of any Senior Debt of the
Company to enforce subordination as provided herein shall at any time in any way
be prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by the Company with the terms of this Indenture, regardless
of any knowledge thereof which any such holder may have or otherwise be charged
with. The provisions of this Article Eight are intended to be for the benefit
of, and shall be enforceable directly by, the holders of Senior Debt of the
Company.
Section 8.10 Holders Authorize Trustee to Effectuate Subordination of
Securities
Each Holder of Securities by his acceptance of such Securities
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article Eight, and appoints the Trustee his attorney-in-fact for such
purposes, including, in the event of any dissolution, winding-up, total
liquidation or reorganization of the Company (whether in bankruptcy, insolvency,
receivership, reorganization or similar proceedings or upon an assignment for
the benefit of creditors or otherwise) tending towards liquidation of the
business and assets of the Company, the filing of a claim for the unpaid balance
of its or his Securities in the form required in those proceedings. If the
Trustee does not file a proper claim or proof of debt in the form required in
any proceeding referred to in Section 6.09 prior to 30 days before the
expiration of the time to file such claim or claims, then any of the holders of
the Senior Debt or their Representative is hereby authorized to file an
appropriate claim for and on behalf of the Holders of said Securities. Nothing
herein contained shall be deemed to authorize the Trustee or the holders of
Senior Debt or their Representative to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee or the holders of Senior Debt or their
Representative to vote in respect of the claim of any Holder in any such
proceeding.
Section 8.11 This Article Not to Prevent Events of Default
The failure to make a payment on account of principal of or interest on
the Securities by reason of any provision of this Article Eight shall not be
construed as preventing the occurrence of an Event of Default specified in
clauses (i), (ii) or (iii) of Section 6.01.
Section 8.12 Trustee's Compensation Not Prejudiced
Nothing in this Article Eight shall apply to amounts due to the
Trustee, in its capacity as such, pursuant to other sections in this Indenture.
Section 8.13 No Waiver of Subordination Provisions
Without in any way limiting the generality of Section 8.09, the holders
of Senior Debt of the Company may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article Eight or the
obligations hereunder of the Holders of the Securities to the holders of Senior
Debt of the Company, do any one or more of the following: (a) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
such Senior Debt or any instrument evidencing the same or any agreement under
which such Senior Debt is outstanding or secured; (b) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing such
Senior Debt; (c) release any Person liable in any manner for the collection of
such Senior Debt; and (d) exercise or refrain from exercising any rights against
the Company and any other Person.
Section 8.14 Subordination Provisions Not Applicable to Money Held in Trust for
Holders
All money and United States Government Obligations deposited in trust
with the Trustee pursuant to and in accordance with Article Nine shall be for
the sole benefit of the Holders and shall not be subject to this Article Eight.
Section 8.15 Amendments
As long as the Senior Debt is outstanding or any amounts are
outstanding thereunder, the provisions of this Article Eight (and the definition
used herein) shall not be amended or modified without the written consent of the
majority of the lenders under the Senior Debt; provided, however, any amendment
to, or waiver of, the provisions of the Indenture relating to subordination that
adversely affects the rights of Holders shall require the consent of at least
75% in aggregate principal amount of Securities then outstanding.
ARTICLE NINE
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01 Termination of the Company's Obligations
(A) The Company may terminate its obligations under the Securities
and this Indenture, except those obligations referred to in Section 9.01(B), if
all Securities previously authenticated and delivered (other than destroyed,
lost or stolen Securities which have been replaced or paid or Securities for
whose payment United States Legal Tender or non-callable United States
Government Obligations, or a combination thereof, has theretofore been deposited
with the Trustee or the Paying Agent in trust or segregated and held in trust by
the Company and thereafter repaid to the Company, as provided in Section 9.05)
have been delivered to the Trustee for cancellation and the Company has paid all
sums payable by it hereunder, or if:
(a) either (i) pursuant to Article Three, the Company shall have
given notice to the Trustee and mailed a notice of redemption to each Holder of
the redemption of all of the Securities under arrangements satisfactory to the
Trustee for the giving of such notice or (ii) all Securities have otherwise
become due and payable hereunder;
(b) the Company shall have irrevocably deposited or caused to be
deposited with the Trustee or a trustee satisfactory to the Trustee, under the
terms of an irrevocable trust agreement in form and substance satisfactory to
the Trustee, as trust funds in trust solely for the benefit of the Holders for
that purpose, United States Legal Tender or non-callable United States
Government Obligations, or a combination thereof, in such amount as is
sufficient without consideration of reinvestment of such interest, to pay
principal and interest on the outstanding Securities to maturity or redemption,
as well as the Trustee's fees and expenses; provided that the Trustee shall have
been irrevocably instructed to apply such United States Legal Tender to the
payment of said principal and interest with respect to the Securities; provided,
further, that no deposits made pursuant to this Section 9.01(b) shall cause the
Trustee to have a conflicting interest as defined in and for the purposes of the
TIA; provided, further, that from and after the time of deposit, the money
deposited shall not be subject to the rights of holders of Senior Debt pursuant
to the provisions of Article Eight and provided, further, that, as confirmed by
an Opinion of Counsel, no such deposit shall result in the Company, the Trustee
or the trust becoming or being deemed to be an "investment company" under the
Investment Company Act of 1940;
(c) no Default or Event of Default with respect to this Indenture
or the Securities shall have occurred and be continuing on the date of such
deposit or shall occur as a result of such deposit and such deposit will not
result in a breach or violation of, or constitute a default under, the Credit
Agreement or any other material instrument to which the Company is a party or by
which it is bound (other than a Default or Event of Default resulting from the
incurrence of Indebtedness, all or a portion of which will be used to defease
the Securities concurrently with such incurrence);
(d) the Company shall have paid all other sums payable by it
hereunder; and
(e) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent providing for or relating to the termination of the Company's
obligations under the Securities and this Indenture have been complied with.
Such Opinion of Counsel shall also state that such satisfaction and discharge
does not result in a default under any agreement or instrument then known to
such counsel that binds or affects the Company.
Notwithstanding the foregoing paragraph, the Company's obligations in
Sections 2.05, 2.06, 2.07, 2.08, 4.01, 4.02, 7.07, 9.05 and 9.06 shall survive
until the Securities are no longer outstanding pursuant to the last paragraph of
Section 2.08. After the Securities are no longer outstanding, the Company's
obligations in Sections 7.07, 9.05 and 9.06 shall survive.
After such delivery or irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
the Securities and this Indenture except for those surviving obligations
specified above.
(B) The Company may not discharge any of its obligations with
regard to outstanding Securities or discharge any of the obligations of the
Guarantors with regard to the Subsidiary Guarantees that relate to:
(a) the rights of Holders of outstanding Securities to receive
payments in respect of the principal of, premium, if any, and interest on such
Securities when such payments are due from the trust referred to below;
(b) the Company's obligations with respect to the Securities
concerning issuing temporary Securities, registration of Securities, mutilated,
destroyed, lost or stolen Securities and the maintenance of an office or agency
for payment and money for security payments held in trust;
(c) the rights, powers, trusts, duties and immunities of the
Trustee, and the Company's obligations in connection therewith; and
(d) the Legal Defeasance obligations contained in this Article
Nine.
Section 9.02 Legal Defeasance and Covenant Defeasance
(a) The Company may, at its option and at any time, elect to have
either paragraph (b) or (c) below be applied to all outstanding Securities upon
compliance with the conditions set forth in Section 9.03.
(b) Upon exercise under paragraph (a) hereof of the option
applicable to this paragraph (b), the Company and, if it so selects, each of the
Guarantors, shall, subject to the satisfaction of the conditions set forth in
Section 9.03, be deemed to have been discharged from its obligations with
respect to all outstanding Securities on the date the conditions set forth below
are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire Indebtedness represented by the outstanding Securities, which shall
thereafter be deemed to be "outstanding" only for the purposes of Section 9.04
hereof and the other Sections of this Indenture referred to in (i) and (ii)
below, and to have satisfied all its other obligations under such Securities and
this Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), and Holders of the
Securities and any amounts deposited under Section 9.03 hereof shall cease to be
subject to any obligations to, or the rights of, any holder of Senior Debt under
Article Eight or otherwise, except for the following provisions, which shall
survive until otherwise terminated or discharged hereunder:
(i) the rights of Holders of outstanding Securities to receive
solely from the trust fund described in Section 9.04 hereof, and as more fully
set forth in such Section, payments in respect of the principal of and interest
on such Securities when such payments are due;
(ii) the Company's obligations with respect to such Securities
under Article Two and Section 4.02 hereof;
(iii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's obligations in connection therewith; and
(iv) this Article Nine.
Subject to compliance with this Article Nine, the Company may exercise its
option under this paragraph (b) notwithstanding the prior exercise of its option
under paragraph (c) hereof.
(c) Upon the Company's exercise under paragraph (a) hereof of the
option applicable to this paragraph (c), the Company shall, subject to the
satisfaction of the conditions set forth in Section 9.03 hereof, be released
from its obligations under the covenants contained in Sections 4.03 through
4.06, inclusive, Sections 4.08 through 4.10, inclusive, Sections 4.12 through
4.20, inclusive, and Article Five hereof with respect to the outstanding
Securities on and after the date the conditions set forth below are satisfied
(hereinafter, "Covenant Defeasance"), and the Securities shall thereafter be
deemed not "outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Securities shall
not be deemed outstanding for accounting purposes) and Holders of the Securities
and any amounts deposited under Section 8.03 hereof shall cease to be subject to
any obligations to, or the rights of, any holder of Senior Debt under Article
Eight or otherwise. For this purpose, such Covenant Defeasance means that, with
respect to the outstanding Securities, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event or Default
under Section 6.01(iii) hereof, but, except as specified above, the remainder of
this Indenture and such Securities shall be unaffected thereby. In addition,
upon the Company's exercise under paragraph (a) hereof of the option applicable
to this paragraph (c), subject to the satisfaction of the conditions set forth
in Section 9.03 hereof, Sections 6.01(iv), 6.01(v) and 6.01(vi) shall not
constitute Events of Default.
Section 9.03 Conditions to Legal Defeasance or Covenant Defeasance
The following shall be the conditions to the application of either
Section 9.02(b) or 9.02(c) hereof to the outstanding Securities:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Securities, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such amounts as
will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if any, and
interest on the outstanding Securities on the stated maturity or on the
applicable redemption date, as the case may be, and the Company must specify
whether the Securities are being defeased to maturity or to a particular
redemption date;
(b) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the
Trustee confirming that (a) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (b) since the Issue Date,
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 shall confirm
that, the Holders of the outstanding Securities will not recognize income, gain
or loss for federal income tax purposes as a result of such Legal 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 Legal Defeasance had
not occurred;
(c) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the
Trustee confirming that the Holders of the outstanding Securities 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;
(d) no Default or Event of Default shall have occurred and be
continuing either: (a) on the date of such deposit (other than a Default or
Event of Default resulting from the borrowing of funds to be applied to such
deposit); or (b) or insofar as Events of Default from bankruptcy or insolvency
events are concerned, at any time in the period ending on the 91st day after the
date of deposit;
(e) such Legal Defeasance or Covenant Defeasance will not result in
a breach or violation of, or constitute a default under the Credit Agreement or
any other material agreement or instrument (other than this Indenture) to which
the Company or any of its Restricted Subsidiaries is a party or by which the
Company or any of its Restricted Subsidiaries is bound;
(f) the Company must have delivered to the Trustee an opinion of
counsel to the effect that after the 91st day following the deposit, the trust
funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally;
(g) the Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders of Securities over the other creditors of the Company
with the intent of defeating, hindering, delaying or defrauding creditors of the
Company or others; and
(h) the Company must deliver to the Trustee an Officers'
Certificate and an opinion of counsel, each stating that all conditions
precedent relating to the Legal Defeasance or the Covenant Defeasance have been
complied with.
Notwithstanding the foregoing, the Opinion of Counsel required by
clause (b) above with respect to a Legal Defeasance need not be delivered if all
Securities not theretofore delivered to the Trustee for cancellation (x) have
become due and payable, (y) will become due and payable on the maturity date
within one year or (z) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense of, the Company.
Section 9.04 Application of Trust Money
The Trustee or Paying Agent shall hold in trust United States Legal
Tender or United States Government Obligations deposited with it pursuant to
Article Eight, and shall apply the deposited United States Legal Tender and the
money from United States Government Obligations in accordance with this
Indenture to the payment of principal of and interest on the Securities. The
Trustee shall be under no obligation to invest said United States Legal Tender
or United States Government Obligations except as it may agree with the Company.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the United States Legal Tender or
United States Government Obligations deposited pursuant to Section 9.03 hereof
or the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of the
outstanding Securities.
Anything in this Article Nine to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the Company's
request any United States Legal Tender or United States Government Obligations
held by it as provided in Section 9.03 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
Section 9.05 Repayment to Company
Subject to this Article Nine, the Trustee and the Paying Agent shall
promptly pay to the Company upon request any excess United States Legal Tender
or United States Government Obligations held by them at any time and thereupon
shall be relieved from all liability with respect to such money. The Trustee and
the Paying Agent shall pay to the Company upon request any money held by them
for the payment of principal or interest that remains unclaimed for two years;
provided that the Trustee or such Paying Agent, before being required to make
any payment, may at the expense of the Company cause to be published once in a
newspaper of general circulation in The City of New York or mail to each Holder
entitled to such money notice that such money remains unclaimed and that after a
date specified therein which shall be at least 30 days from the date of such
publication or mailing any unclaimed balance of such money then remaining will
be repaid to the Company. After payment to the Company, Holders entitled to such
money must look to the Company for payment as general creditors unless an
applicable law designates another Person.
Section 9.06 Reinstatement
If the Trustee or Paying Agent is unable to apply any United States
Legal Tender or United States Government Obligations in accordance with this
Article Nine 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 Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article Nine until such time as the
Trustee or Paying Agent is permitted to apply all such United States Legal
Tender or United States Government Obligations in accordance with this Article
Nine; provided that if the Company has made any payment of interest on or
principal of any Securities because of the reinstatement of their obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the United States Legal Tender or United States
Government Obligations held by the Trustee or Paying Agent.
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 10.01 Without Consent of Holders
The Company and each Guarantor, when authorized by a resolution of
their respective Boards of Directors, and the Trustee may amend or supplement
this Indenture or the Securities without notice to or consent of any Holder:
(a) to cure any ambiguity, to correct or supplement any provision
in this Indenture that may be defective or inconsistent with any other
provisions in this Indenture, or to make any other provisions with respect to
matters or questions arising under this Indenture; provided that such actions
taken pursuant to this clause (a) do not, in the opinion of the Trustee,
adversely affect the interests of the Holders in any material respect;
(b) to evidence the succession of another Person to the Company or
any Guarantor and the assumption by any such successor of the covenants of the
Company or any Guarantor in this Indenture and in the Securities in the case of
a merger or consolidation or sale of all or substantially all of the Company's
assets;
(c) to add to the covenants of the Company or any Guarantor for the
benefit of the Holders, or to surrender any right or power herein conferred upon
the Company or any Guarantor;
(d) to provide for uncertificated Securities in addition to or in
place of the certificated Securities;
(e) to evidence and provide for the acceptance of appointment under
this Indenture by a successor Trustee;
(f) to comply with any requirements of the Commission in order to
effect and maintain the qualification of this Indenture under the TIA;
(g) to release any Guarantor from its Guarantee (including in
connection with a sale of all of the Capital Stock or all or substantially all
of the assets of such Guarantor) pursuant to the requirements of Section 11.06
or to add a Guarantor pursuant to the requirements of Section 4.26; or
(h) to provide for the issuance of Securities subsequent to the
Issue Date pursuant to Section 2.02;
provided, however, that the Company deliver to the Trustee an Opinion of Counsel
stating that such amendment or supplement does not adversely affect the rights
of any Holder and otherwise complies with the provisions of this Section 10.01.
In formulating its opinion on the matters in clause (a), the Trustee
will be entitled to rely on such evidence as it deems appropriate, including,
without limitation, solely on an Opinion of Counsel.
Section 10.02 With Consent of Holders
Subject to Sections 6.07 and 10.01, the Company and each Guarantor,
when authorized by a resolution of their respective Boards of Directors, and the
Trustee may amend or supplement this Indenture or the Securities then
outstanding (including consents obtained in connection with a tender offer or
exchange offer for Securities), or waive any existing default or compliance with
any provision hereof or thereof, with the written consent of the Holders of at
least a majority in principal amount of the outstanding Securities (including,
without limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for, Securities). However, notwithstanding the
preceding sentence, without the consent of each Holder affected, an amendment,
supplement or waiver, including a waiver pursuant to Section 6.04, may not:
(a) reduce the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any
Security or alter the provisions with respect to the redemption of the
Securities (other than provisions relating to the repurchase of Securities at
the Holders' option under Sections 4.05 or 4.14);
(c) reduce the rate of or change the time for payment of interest
on any Security;
(d) waive a Default or Event of Default in the payment of principal
of or premium, if any, or interest on the Securities (except a rescission of
acceleration of the Securities by the Holders of at least a majority in
aggregate principal amount of the Securities and a waiver of the payment default
that resulted from such acceleration);
(e) make any Security payable in money other than that stated in
the Securities;
(f) make any change in the provisions of Section 6.04;
(g) waive a redemption payment with respect to any Security (other
than a payment required by one of the covenants described under Section 4.05 or
4.14); or
(h) make any change in the preceding amendment and waiver
provisions.
It shall not be necessary for the consent of the Holders under this
Section 10.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 10.02
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amendment, supplement or
waiver.
Section 10.03 Compliance with Trust Indenture Act
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
Section 10.04 Revocation and Effect of Consents
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of that Security or portion of that Security that evidences the same debt
as the consenting Holder's Security, even if notation of the consent is not made
on any Security. Subject to the following paragraph, any such Holder or
subsequent Holder may revoke the consent as to such Holder's Security or portion
of such Security by notice to the Trustee or the Company received before the
date on which the Trustee receives an Officers' Certificate certifying that the
Holders of the requisite principal amount of Securities have consented (and not
theretofore revoked such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders of Securities entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then,
notwithstanding the last sentence of the immediately preceding paragraph, those
persons who were Holders of Securities at such record date (or their duly
designated proxies), and only those persons, shall be entitled to consent to
such amendment, supplement or waiver or to revoke any consent previously given,
whether or not such persons continue to be Holders of such Securities after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it makes a change described in any of clauses (a)
through (h) of Section 10.02. In that case the amendment, supplement or waiver
shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security.
Section 10.5 Notation on or Exchange of Securities
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determine, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or issue a new Security shall not
affect the validity and effect of such amendment, supplement or waiver.
Section 10.6 Trustee to Sign Amendments, etc
The Trustee shall be entitled to receive, and shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Article Ten is
authorized or permitted by this Indenture and that such amendment, supplement or
waiver constitutes the legal, valid and binding obligation of the Company and
each Guarantor, enforceable in accordance with its terms (subject to customary
exceptions). The Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise. In signing any amendment,
supplement or waiver, the Trustee shall be entitled to receive an indemnity
reasonably satisfactory to it.
ARTICLE ELEVEN
GUARANTEE
Section 11.01 Unconditional Guarantee
Each Guarantor, jointly and severally, hereby unconditionally
guarantees to each Holder of a Security authenticated by the Trustee and to the
Trustee and its successors and assigns that: the principal of and interest on
the Securities will be promptly paid in full when due, subject to any applicable
grace period, whether at maturity, by acceleration or otherwise, and interest on
the overdue principal and interest on any overdue interest on the Securities and
all other obligations of the Company to the Holders or the Trustee hereunder or
under the Securities will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; subject, however, to the
limitations set forth in Section 11.03. Each Guarantor hereby agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Securities or this Indenture, the absence of
any action to enforce the same, any waiver or consent by any Holder of the
Securities 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 such 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 covenants that the
Guarantee will not be discharged except by complete performance of the
obligations contained in the Securities and this Indenture. If any Holder or the
Trustee is required by any court or otherwise to return to the Company or any
Guarantor or any custodian, trustee, liquidator or other similar official acting
in relation to the Company or a Guarantor, any amount paid by the Company or a
Guarantor to the Trustee or such Holder, the Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect. Each
Guarantor further agrees that, as between such Guarantor, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Six for
the purpose of the Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article Six, such obligations (whether or not due and payable)
shall become due and payable by such Guarantor for the purpose of the Guarantee.
Section 11.02 Severability
In case any provision of this Article Eleven shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 11.03 Limitation of Guarantor's Liability
Each Guarantor, and by its acceptance hereof each Holder and the
Trustee, hereby confirms that it is the intention of all such parties that the
Guarantee does not constitute a fraudulent transfer or conveyance for purposes
of Title 11 of the United States Code, as amended, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar U.S. Federal
or state or other applicable law. To effectuate the foregoing intention, each
Holder and each Guarantor hereby irrevocably agree that the obligations of a
Guarantor under its Guarantee shall be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of such
Guarantor, and after giving effect to any collections from or payments made by
or on behalf of such Guarantor in respect of the obligations of such Guarantor
pursuant to Section 11.04, result in the obligations of such Guarantor not
constituting such a fraudulent transfer or conveyance.
Section 11.04 Execution of Guarantee
Each Guarantor hereby agrees to execute a guarantee to be endorsed on
and made a part of each Security ordered to be authenticated and delivered by
the Trustee. Each Guarantor hereby agrees that its guarantee set forth in
Section 11.01 shall remain in full force and effect notwithstanding any failure
to endorse on each Security a guarantee. Each such guarantee shall be signed on
behalf of each Guarantor by its Chairman of the Board, its President or one of
its Vice Presidents prior to the authentication of the Security on which it is
endorsed, and the delivery of such Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of such
guarantee on behalf of such Guarantor. Such signature upon the guarantee may be
a manual or facsimile signature of such officer and may be imprinted or
otherwise reproduced on the guarantee, and in case such officer who shall have
signed the guarantee shall cease to be such officer before the Security on which
such guarantee is endorsed shall have been authenticated and delivered by the
Trustee or disposed of by the Company, such Security nevertheless may be
authenticated and delivered or disposed of as though the Person who signed the
guarantee had not ceased to be such officer of such Guarantor.
Section 11.05 Subordination of Subrogation and Other Rights
Each Guarantor hereby agrees that any claim against the Company that
arises from the payment, performance or enforcement of such Guarantor's
obligations under the Guarantee or this Indenture, including, without
limitation, any right of subrogation, shall be subject and subordinate to, and
no payment with respect to any such claim of such Guarantor shall be made
before, the payment in full in cash of all outstanding Senior Debt in accordance
with the provisions provided therefor in this Indenture.
Section 11.06 Release of Guarantor from Subsidiary Guarantee
The Subsidiary Guarantee of a Guarantor will be released: (a) in
connection with any sale or other disposition of all or substantially all of the
assets of that Guarantor (including by way of merger or consolidation), if the
Company applies the Net Proceeds of that sale or other disposition, in
accordance with Section 4.05; or (b) in connection with any sale of all of the
Capital Stock of a Guarantor, provided the Company applies the Net Proceeds of
that sale in accordance with Section 4.05; or (c) if the Company designates any
Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary in
accordance with Section 4.24.
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE
Section 12.01 Guarantee Obligations Subordinated to Senior Debt
Each Guarantor covenants and agrees, and the Trustee and each Holder of
the Securities by its acceptance thereof likewise covenant and agrees, (i) that
the Guarantee shall be issued subject to the provisions of this Article Twelve;
and each Person holding any Security, whether upon original issue or upon
transfer, assignment or exchange thereof, accepts and agrees that all payments
of the principal of and interest on the Securities pursuant to the Guarantee
made by or on behalf of the Guarantor shall, to the extent and in the manner set
forth in this Article Twelve, be subordinated and junior in right of payment to
the prior payment in full in cash or Cash Equivalents of all amounts payable
under the Senior Debt of such Guarantor, whether outstanding on the Issue Date
or thereafter incurred, and (ii) that the subordination is for the benefit of,
and shall be enforceable directly by, the holders of such Senior Debt, and that
each holder of such Senior Debt whether now outstanding or hereafter created,
incurred, assumed or guaranteed shall be deemed to have acquired such Senior
Debt in reliance upon the covenants and provisions contained in this Indenture
and the Guarantees.
Section 12.02 Payment Over of Proceeds upon Dissolution, etc.; No Payment in
Certain Circumstances
(a) Upon any payment or distribution of assets of the Guarantor of
any kind or character, whether in cash, property or securities, to creditors
upon any total or partial liquidation, dissolution, winding up, reorganization,
assignment for the benefit of creditors or marshaling of assets of the Guarantor
or in a bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to the Guarantor or its property, whether voluntary or
involuntary, all Obligations due or to become due upon all Senior Debt
(including interest after the commencement of any such proceeding at the rate
specified in the applicable Senior Debt whether or not such interest is an
allowed claim in such proceeding) shall first be paid in full in cash or Cash
Equivalents, before any payment or distribution of any kind or character is made
by or on behalf of the Guarantor on account of any Obligations on the Guarantee
or for the acquisition of any of the Securities for cash or property or
otherwise (except that holders of the Securities may receive Defeasance Trust
Payments). Before any payment may be made by, or on behalf of, the Guarantor of
any Obligations on the Securities upon any such dissolution or winding-up or
total liquidation or reorganization, any payment or distribution of assets or
securities of the Guarantor of any kind or character, whether in cash, property
or securities, to which the Holders of the Securities or the Trustee on their
behalf would be entitled, but for the subordination provisions of this
Indenture, shall be made by the Guarantor or by any receiver, trustee in
bankruptcy, liquidation trustee, agent or other Person making such payment or
distribution, directly to the holders of the Senior Debt of the Guarantor (pro
rata to such holders on the basis of the respective amounts of such Senior Debt
held by such holders) or their representatives or to the trustee or trustees or
agent or agents under any agreement or indenture pursuant to which any of such
Senior Debt may have been issued, as their respective interests may appear, to
the extent necessary to pay all such Senior Debt in full in cash or Cash
Equivalents after giving effect to any prior or concurrent payment, distribution
or provision therefor to or for the holders of such Senior Debt.
(b) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of assets
or securities of the Guarantor of any kind or character, whether in cash,
property or securities, shall be received by the Trustee or any Holder of
Securities at a time when such payment or distribution is prohibited by Section
12.02(a) and before all Obligations in respect of the Senior Debt of the
Guarantor are paid in full in cash or Cash Equivalents, such payment or
distribution shall be received and held in trust for the benefit of, and shall
be paid over or delivered to, the holders of such Senior Debt (pro rata to such
holders on the basis of the respective amounts of such Senior Debt held by such
holders) or their respective representatives, or to the trustee or trustees or
agent or agents under any indenture pursuant to which any of such Senior Debt
may have been issued, as their respective interests may appear, for application
to the payment of such Senior Debt remaining unpaid until all such Senior Debt
has been paid in full in cash or Cash Equivalents after giving effect to any
prior or concurrent payment, distribution or provision therefor to or for the
holders of such Senior Debt.
(c) To the extent any payment of Senior Debt of a Guarantor
(whether by or on behalf of such Guarantor, as proceeds of security or
enforcement of any right of setoff or otherwise) is declared to be fraudulent or
preferential, set aside or required to be paid to any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law,
then, if such payment is recovered by, or paid over to, such receiver, trustee
in bankruptcy, liquidating trustee, agent or other similar Person, the Senior
Debt or part thereof originally intended to be satisfied shall be deemed to be
reinstated and outstanding as if such payment has not occurred.
The consolidation of the Guarantor with, or the merger of the Guarantor
with or into, another corporation or the liquidation or dissolution of the
Guarantor following the conveyance or transfer of its property as an entirety,
or substantially as an entirety, to another corporation upon the terms and
conditions provided in Article Five shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 12.02
if such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article Five.
If any default occurs and is continuing in the payment when due,
whether at maturity, upon any redemption, by acceleration or otherwise, of any
Obligations with respect to any Senior Debt (including interest after the
commencement of any bankruptcy proceeding at the rate specified in the
applicable Senior Debt instrument, whether or not allowable as a claim in any
such proceeding) no payment of any kind or character shall be made by or on
behalf of the Guarantor or any other Person on its behalf with respect to any
Obligations on the Guarantee or to acquire any of the Securities for cash or
property or otherwise (except that holders of the Securities may receive
Defeasance Trust Payments).
In addition, if any other event of default occurs and is continuing
with respect to any Designated Senior Debt, as such event of default is defined
in the instrument creating or evidencing such Designated Senior Debt, permitting
the holders of such Designated Senior Debt then outstanding to accelerate the
maturity thereof and if the Representative for the respective issue of
Designated Senior Debt gives a Payment Blockage Notice to the Trustee, then,
unless and until all events of default have been cured or waived or have ceased
to exist or the Trustee receives notice from the Representative for the
respective issue of Designated Senior Debt terminating the Payment Blockage
Period, during the Payment Blockage Period, neither the Guarantor, nor any other
Person on the Guarantor's behalf, shall (x) make any payment of any kind or
character with respect to any Obligations on the Guarantee or (y) acquire any of
the Securities for cash or property or otherwise (except that holders of the
Securities may receive Defeasance Trust Payments).
Notwithstanding anything herein to the contrary, in no event will a
Payment Blockage Period extend beyond 180 days from the date the Payment
Blockage Notice is delivered and only one such Payment Blockage Period may be
commenced within any 360 consecutive days. No event of default which existed or
was continuing on the date of the commencement of any Payment Blockage Period
with respect to the Designated Senior Debt shall be, or be made, the basis for
commencement of a second Payment Blockage Period by the Representative of such
Designated Senior Debt whether or not within a period of 360 consecutive days,
unless such event of default shall have been cured or waived for a period of not
less than 180 consecutive days (it being acknowledged that any subsequent
action, or any breach of any financial covenants for a period commencing after
the date of commencement of such Payment Blockage Period that, in either case,
would give rise to an event of default pursuant to any provisions under which an
event of default previously existed or was continuing shall constitute a new
event of default for this purpose).
In the event that, notwithstanding the provisions of the two paragraphs
preceding the immediately preceding paragraph of this Section 12.02 prohibiting
such payment or distribution, any payment or distribution of assets or
securities of the Guarantor of any kind or character, whether in cash, property
or securities, shall be received by the Trustee or any Holder of Securities at a
time when such payment or distribution is prohibited by the two paragraphs
preceding the immediately preceding paragraph of this Section 12.02 and before
all Obligations in respect of the Senior Debt of the Guarantor are paid in full
in cash or Cash Equivalents, such payment or distribution shall be received and
held in trust for the benefit of, and shall be paid over or delivered to, the
holders of such Senior Debt (pro rata to such holders on the basis of the
respective amounts of such Senior Debt held by such holders) or their respective
representatives, or to the trustee or trustees or agent or agents under any
indenture pursuant to which any of such Senior Debt may have been issued, as
their respective interests may appear, for application to the payment of such
Senior Debt remaining unpaid until all such Senior Debt has been paid in full in
cash or Cash Equivalents after giving effect to any prior or concurrent payment,
distribution or provision therefor to or for the holders of such Senior Debt.
Section 12.03 Subrogation
Upon the payment in full in cash or Cash Equivalents of all Senior Debt
of a Guarantor, the Holders of the Securities shall be subrogated to the rights
of the holders of such Senior Debt to receive payments or distributions of cash,
property or securities of such Guarantor made on such Senior Debt until the
principal of and interest on the Securities shall be paid in full in cash or
Cash Equivalents; and, for the purposes of such subrogation, no payments or
distributions to the holders of such Senior Debt of any cash, property or
securities to which the Holders of the Securities or the Trustee on their behalf
would be entitled except for the provisions of this Article Twelve, and no
payment over pursuant to the provisions of this Article Twelve to the holders of
such Senior Debt by Holders of the Securities or the Trustee on their behalf
shall, as between such Guarantor, its creditors other than holders of such
Senior Debt, and the Holders of the Securities, be deemed to be a payment by
such Guarantor to or on account of such Senior Debt. It is understood that the
provisions of this Article Twelve are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities, on the one hand,
and the holders of Senior Debt of any such Guarantor on the other hand.
If any payment or distribution to which the Holders of the Securities
would otherwise have been entitled but for the provisions of this Article Twelve
shall have been applied, pursuant to the provisions of this Article Twelve, to
the payment of all amounts payable under the Senior Debt of the Guarantors, then
and in such case, the Holders of the Securities shall be entitled to receive
from the holders of such Senior Debt any payments or distributions received by
such holders of Senior Debt in excess of the amount required to make payment in
full in cash of such Senior Debt.
Section 12.04 Obligations of Guarantors Unconditional
Subject to Sections 11.03 and 8.02, nothing contained in this Article
Twelve or elsewhere in this Indenture or in the Securities is intended to or
shall impair, as among any Guarantor and the Holders of the Securities, the
obligation of such Guarantor, which is absolute and unconditional, to pay to the
Holders of the Securities the principal of and interest on the Securities as and
when the same shall become due and payable in accordance with the terms of the
Guarantee, or is intended to or shall affect the relative rights of such
Guarantor of the Securities and creditors of any Guarantor other than the
holders of Senior Debt of such Guarantor, as the case may be, nor shall anything
herein or therein prevent the Holder of any Security or the Trustee on their
behalf from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
Twelve of the holders of Senior Debt in respect of cash, property or securities
of such Guarantor received upon the exercise of any such remedy.
Without limiting the generality of the foregoing, nothing contained in
this Article Twelve shall restrict the right of the Trustee or the Holders of
Securities to take any action to declare the Securities to be due and payable
prior to their stated maturity pursuant to Section 6.01 or to pursue any rights
or remedies hereunder; provided, however, that all Senior Debt of each Guarantor
then due and payable shall first be paid in full in cash or Cash Equivalents
before the Holders of the Securities or the Trustee are entitled to receive any
direct or indirect payment from, or on behalf of, such Guarantor on account of
any Obligations on the Securities pursuant to the Guarantee.
Section 12.05 Notice to Trustee
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities pursuant to the provisions of this Article
Twelve (although the failure to give any such notice shall not affect the
subordination provisions set forth in this Article Twelve). The Trustee shall
not be charged with knowledge of the existence of any event of default with
respect to any Senior Debt of a Guarantor or of any other facts which would
prohibit the making of any payment to or by the Trustee unless and until the
Trustee shall have received notice in writing at its Corporate Trust Office to
that effect signed by an Officer of the Company, or by a holder of Senior Debt
of a Guarantor or trustee or agent therefor; and prior to the receipt of any
such written notice, the Trustee shall, subject to Article Seven, be entitled to
assume that no such facts exist; provided, however, that if the Trustee shall
not have received the notice provided for in this Section 12.05 at least two
Business Days prior to the date upon which by the terms of this Indenture any
moneys shall become payable for any purpose (including, without limitation, the
payment of the principal of or interest on any Security), then, regardless of
anything herein to the contrary, the Trustee shall have full power and authority
to receive any moneys from the Guarantor and to apply the same to the purpose
for which they were received, and shall not be affected by any notice to the
contrary which may be received by it on or after such prior date (although the
receipt of such moneys by any Holder of Securities shall otherwise be subject to
the provisions of this Article Twelve). Nothing contained in this Section 12.05
shall limit the right of the holders of Senior Debt of a Guarantor to recover
payments as contemplated by Section 12.02. The Trustee shall be entitled to rely
on the delivery to it of a written notice by a Person representing himself or
itself to be a holder of any Senior Debt of a Guarantor (or a trustee on behalf
of, or other representative of, such holder) to establish that such notice has
been given by a holder of such Senior Debt or a trustee or representative on
behalf of any such holder.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Debt of a Guarantor to participate in any payment or distribution
pursuant to this Article Twelve, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Debt held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article Twelve, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
Section 12.06 Reliance on Judicial Order or Certificate of Liquidating Agent
Upon any payment or distribution of assets or securities of a Guarantor
referred to in this Article Twelve, the Trustee and the Holders of the
Securities shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction in which bankruptcy, dissolution, winding-up,
liquidation or reorganization proceedings are pending, or upon a certificate of
the receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the Holders
of the Securities for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of Senior Debt of such Guarantor
and other indebtedness of such Guarantor, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Twelve.
Section 12.07 Trustee's Relation to Senior Debt of a
Guarantor
The Trustee and any Paying Agent shall be entitled to all the rights
set forth in this Article Twelve with respect to any Senior Debt of a Guarantor
which may at any time be held by them in their individual or any other capacity
to the same extent as any other holder of Senior Debt of such Guarantor, and
nothing in this Indenture shall deprive the Trustee or any Paying Agent of any
of its rights as such holder.
With respect to the holders of Senior Debt of any Guarantor, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Twelve, and no implied
covenants or obligations with respect to the holders of such Senior Debt shall
be read into this Indenture against the Trustee. The Trustee shall not be deemed
to owe any fiduciary duty to the holders of Senior Debt of any Guarantor (except
as provided in Section 12.02(b)). The Trustee shall not be liable to any such
holders if the Trustee shall in good faith mistakenly pay over or distribute to
Holders of Securities or to the Company or to any other person cash, property or
securities to which any holders of Senior Debt of a Guarantor shall be entitled
by virtue of this Article Twelve or otherwise.
Section 12.08 Subordination Rights Not Impaired by Acts or Omissions of Holders
of Senior Debt
No right of any present or future holders of any Senior Debt of a
Guarantor to enforce subordination as provided herein shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of such
Guarantor or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by such Guarantor with the terms of this Indenture,
regardless of any knowledge thereof which any such holder may have or otherwise
be charged with. The provisions of this Article Twelve are intended to be for
the benefit of, and shall be enforceable directly by, the holders of Senior Debt
of any Guarantor.
Section 12.09 Holders Authorize Trustee To Effectuate Subordination of
Guarantee
Each Holder of Securities by his acceptance of such Securities
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article Twelve, and appoints the Trustee his attorney-in-fact for such
purposes, including, in the event of any dissolution, winding-up, total
liquidation or reorganization of any Guarantor (whether in bankruptcy,
insolvency, receivership, reorganization or similar proceedings or upon an
assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of any Guarantor, the filing of a claim
for the unpaid balance of its or his Securities in the form required in those
proceedings. If the Trustee does not file a proper claim or proof of debt in the
form required in any proceeding referred to in Section 6.09 prior to 30 days
before the expiration of the time to file such claim or claims, then any of the
holders of the Senior Debt or their Representative is hereby authorized to file
an appropriate claim for and on behalf of the Holders of said Securities.
Nothing herein contained shall be deemed to authorize the Trustee or the holders
of Senior Debt or their Representative to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee or the holders of Senior Debt or their
Representative to vote in respect of the claim of any Holder in any such
proceeding.
Section 12.10 This Article Not to Prevent Events of Default
The failure to make a payment on account of principal of or interest on
the Securities by reason of any provision of this Article Twelve shall not be
construed as preventing the occurrence of an Event of Default.
Section 12.11 Trustee's Compensation Not Prejudiced
Nothing in this Article Twelve shall apply to amounts due to the
Trustee, in its capacity as such, pursuant to other sections in this Indenture.
Section 12.12 No Waiver of Guarantee Subordination Provisions
Without in any way limiting the generality of Section 12.08, the
holders of Senior Debt of any Guarantor, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
Twelve or the obligations hereunder of the Holders of the Securities to the
holders of such Senior Debt, may do any one or more of the following: (a) change
the manner, place or terms of payment or extend the time of payment of, or renew
or alter, such Senior Debt or any instrument evidencing the same or any
agreement under which such Senior Debt is outstanding or secured; (b) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior Debt; (c) release any Person liable in any manner
for the collection of such Senior Debt; and (d) exercise or refrain from
exercising any rights against the Guarantor and any other Person.
Section 12.13 Amendments
As long as the Credit Facilities or any amounts are outstanding
thereunder, the provisions of this Article Twelve (and the definition used
herein) shall not be amended or modified without the written consent of the
majority of the lenders under the Credit Facilities.
ARTICLE THIRTEEN
MISCELLANEOUS
Section 13.01 Trust Indenture Act Controls
This Indenture is subject to the provisions of the TIA that are
required to be a part of any indenture subject to the TIA. If any provision of
this Indenture modifies any TIA provision that may be so modified, such TIA
provision shall be deemed to apply to this Indenture as so modified. If any
provision of this Indenture excludes any TIA provision that may be so excluded,
such TIA provision shall be excluded from this Indenture.
The provisions of TIA Section 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included unless expressly
excluded by this Indenture) are a part of and govern this Indenture, whether or
not physically contained herein.
Section 13.02 Notices
Any notice or communication shall be sufficiently given if in writing
and delivered in person, by facsimile and confirmed by overnight courier, or
mailed by first-class mail addressed as follows:
if to the Company and the Guarantors:
Falcon Products, Inc.
0000 Xxxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with copies to:
Gallop, Xxxxxxx & Xxxxxx, X.X.
000 Xxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Each party by notice to the others may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication mailed, first-class, postage prepaid, to a
Holder, including any notice delivered in connection with TIA ss. 310(b), TIA
ss. 313(c), TIA ss. 314(a) and TIA ss. 315(b), shall be mailed to such Holder at
the address as set forth on the list maintained pursuant to Section 2.05 and
shall be sufficiently given to him if so mailed within the time prescribed. To
the extent required by the TIA, any notice or communication shall also be mailed
to any Person described in TIA ss. 313(c).
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. Except for a
notice to the Trustee, which is deemed given only when received, if a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.
Section 13.03 Communications by Holders with Other Holders
Holders may communicate pursuant to TIA ss. 312(b) with other Holders
with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and any other person shall have the
protection of TIA ss. 312(c).
Section 13.04 Certificate and Opinion as to Conditions Precedent
Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture after the date hereof,
the Company shall furnish to the Trustee at the request of the Trustee:
(1) an Officers' Certificate in form and substance 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 satisfactory to the
Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with, and such other opinions as the Trustee may
reasonably require.
Section 13.05 Statements Required in Certificate or Opinion
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he 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
person, such condition or covenant has been complied with; provided, however,
that with respect to matters of fact an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
Section 13.06 Rules by Trustee, Paying Agent, Registrar
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Paying Agent or Registrar may make reasonable rules for its
functions.
Section 13.07 Governing Law
This Indenture and the Securities will be governed by, and construed in
accordance with, the laws of the State of New York but without giving effect to
applicable principles of conflicts of law to the extent that the application of
the law of another jurisdiction would be required thereby.
Section 13.08 No Recourse Against Others
No director, officer, employee, stockholder or member of the Company,
as such, shall have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. The waiver and release are part
of the consideration for the issuance of the Securities.
Section 13.09 Successors
All agreements of a party to this Indenture contained in this Indenture
shall bind such party's successors.
Section 13.10 Counterpart 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.
Section 13.11 Severability
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby,
and a Holder shall have no claim therefor against any party hereto.
Section 13.12 No Adverse Interpretation of Other Agreements
This Indenture may not be used to interpret another indenture, loan or
debt agreement. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section 13.13 Legal Holidays
If a payment date is a not a Business Day at a place of payment,
payment may be made at that place on the next succeeding Business Day, and no
interest shall accrue for the intervening period.
Section 13.14 No Personal Liability of Directors, Officers, Employees and
Stockholders
No director, officer, employee, incorporator or stockholder of the
Company or any Guarantor, as such, shall have any liability for any obligations
of the Company or the Guarantors under the Securities, the Indenture, the
Subsidiary Guarantees or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder by accepting a Security waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Securities. The waiver may not be effective to
waive liabilities under the federal securities laws.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first written above.
COMPANY:
FALCON PRODUCTS, INC.
By:
----------------------------------------
Name:
Title:
GUARANTORS:
FALCON HOLDINGS, INC.,
By:
----------------------------------------
Name:
Title:
XXXX FURNITURE CORPORATION
By:
----------------------------------------
Name:
Title:
XXXXXXX INDUSTRIES, INC.
By:
----------------------------------------
Name:
Title:
SY ACQUISITION, INC.
By:
----------------------------------------
Name:
Title:
TRUSTEE:
THE BANK OF NEW YORK
By:
----------------------------------------
Name:
Title:
