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EXHIBIT 4.1
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INTERFACE, INC., as Issuer
BENTLEY XXXXX, INC.
GUILFORD (DELAWARE), INC.
GUILFORD OF MAINE, INC.
INTERFACE ASIA-PACIFIC, INC.
INTERFACE EUROPE, INC.
INTERFACE FLOORING SYSTEMS, INC.
INTERFACE RESEARCH CORPORATION
PANDEL, INC.
PRINCE STREET TECHNOLOGIES, LTD.
ROCKLAND REACT-RITE, INC.
as Guarantors
and
FIRST UNION NATIONAL BANK OF GEORGIA, as Trustee
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INDENTURE
Dated as of November 15, 1995
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$125,000,000
9 1/2% Senior Subordinated Notes due 2005
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Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of November 15, 1995
Trust Indenture Indenture
Act Section Section
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Section 310 (a)(1) ................................................. 7.11
(a)(2) ................................................. 7.11
(a)(3) ................................................. N.A.
(a)(4) ................................................. N.A.
(a)(5) ................................................. 7.11
(b) ................................................. 7.09; 7.11; 11.02
(c) ................................................. N.A.
Section 311 (a) ................................................. 7.12
(b) ................................................. 7.12
(c) ................................................. N.A.
Section 312 (a) ................................................. 2.06
(b) ................................................. 11.03
(c) ................................................. 11.03
Section 313 (a) ................................................. 7.07
(b) ................................................. 7.07
(c) ................................................. 7.07; 11.02
(d) ................................................. 7.07
Section 314 (a) ................................................. 4.07; 11.02
(b) ................................................. N.A.
(c)(1) ................................................. 11.04
(c)(2) ................................................. 11.04
(c)(3) ................................................. N.A.
(d) ................................................. N.A.
(e) ................................................. 11.05
Section 315 (a) ................................................. 7.01(b)
(b) ................................................. 7.05; 11.02
(c) ................................................. 7.01(a)
(d) ................................................. 7.01(c)
(e) ................................................. 6.11
Section 316 (a) (last
sentence)................................................. 2.13
(a)(1)(A)................................................. 6.05
(a)(1)(B)................................................. 6.04
(a)(2) ................................................. N.A.
(b) ................................................. 6.07
Section 317 (a)(1) ................................................. 6.08
(a)(2) ................................................. 6.09
(b) ................................................. 2.05
Section 318 (a) ................................................. 11.01
(c) ................................................. 11.01
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture
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TABLE OF CONTENTS(1)
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions................................................. 1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act........... 27
SECTION 1.03. Rules of Construction....................................... 27
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Forms and Dating............................................ 28
SECTION 2.02. Restrictive Legends......................................... 29
SECTION 2.03. Execution and Authentication................................ 30
SECTION 2.04. Registrar and Paying Agent.................................. 31
SECTION 2.05. Paying Agent to Hold Money in Trust......................... 31
SECTION 2.06. Securityholder Lists........................................ 32
SECTION 2.07. Transfer and Exchange....................................... 32
SECTION 2.08. Replacement Securities...................................... 33
SECTION 2.09. Book-Entry Provisions for Global Security................... 33
SECTION 2.10. Special Transfer Provisions................................. 34
SECTION 2.11. Form of Certificates to Be Delivered........................ 37
SECTION 2.12. Outstanding Securities...................................... 41
SECTION 2.13. Treasury Securities......................................... 41
SECTION 2.14. Temporary Securities........................................ 41
SECTION 2.15. Cancellation................................................ 42
SECTION 2.16. Defaulted Interest.......................................... 42
SECTION 2.17. CUSIP Number................................................ 42
SECTION 2.18. Deposit of Moneys........................................... 42
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(1) Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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ARTICLE THREE
REDEMPTION OF SECURITIES
SECTION 3.01. Notices to the Trustee...................................... 43
SECTION 3.02. Selection of Securities to Be Redeemed...................... 43
SECTION 3.03. Notice of Redemption........................................ 43
SECTION 3.04. Effect of Notice of Redemption.............................. 44
SECTION 3.05. Deposit of Redemption Price................................. 44
SECTION 3.06. Securities Redeemed or Purchased in Part.................... 45
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities....................................... 45
SECTION 4.02. Maintenance of Office or Agency............................. 45
SECTION 4.03. Corporate Existence......................................... 46
SECTION 4.04. Payment of Taxes and Other Claims........................... 46
SECTION 4.05. Maintenance of Properties; Insurance; Books and Records;
Compliance with Law.............................................. 47
SECTION 4.06. Compliance Certificate...................................... 47
SECTION 4.07. SEC Reports................................................. 48
SECTION 4.08. Limitation on Indebtedness.................................. 49
SECTION 4.09. Limitation on Restricted Payments........................... 49
SECTION 4.10. Limitation on Liens......................................... 52
SECTION 4.11. Change of Control........................................... 52
SECTION 4.12. Disposition of Proceeds of Asset Sales...................... 54
SECTION 4.13. Limitation on Transactions with Interested Persons.......... 57
SECTION 4.14. Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries........................................... 58
SECTION 4.15. Limitation on the Issuance of Other Senior Subordinated
Indebtedness..................................................... 58
SECTION 4.16. Limitation on Guarantees by Subsidiaries.................... 59
SECTION 4.17. Waiver of Stay, Extension or Usury Laws..................... 59
SECTION 4.18. Limitation on Applicability of Certain Covenants............ 59
SECTION 4.19. Rule 144A Information Requirement........................... 60
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ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, etc................................. 60
SECTION 5.02. Successor Substituted....................................... 61
ARTICLE SIX
REMEDIES
SECTION 6.01. Events of Default........................................... 61
SECTION 6.02. Acceleration................................................ 64
SECTION 6.03. Other Remedies.............................................. 65
SECTION 6.04. Waiver of Past Defaults..................................... 65
SECTION 6.05. Control by Majority......................................... 65
SECTION 6.06. Limitation on Suits......................................... 65
SECTION 6.07. Right of Holders to Receive Payment......................... 66
SECTION 6.08. Collection Suit by Trustee.................................. 66
SECTION 6.09. Trustee May File Proofs of Claims........................... 66
SECTION 6.10. Priorities.................................................. 67
SECTION 6.11. Undertaking for Costs....................................... 67
SECTION 6.12. Restoration of Rights and Remedies.......................... 68
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties...................................................... 68
SECTION 7.02. Rights of Trustee........................................... 69
SECTION 7.03. Individual Rights of Trustee................................ 70
SECTION 7.04. Trustee's Disclaimer........................................ 70
SECTION 7.05. Notice of Default........................................... 70
SECTION 7.06. Money Held in Trust......................................... 70
SECTION 7.07. Reports by Trustee to Holders............................... 71
SECTION 7.08. Compensation and Indemnity.................................. 71
SECTION 7.09. Replacement of Trustee...................................... 72
SECTION 7.10. Successor Trustee by Merger, etc............................ 73
SECTION 7.11. Eligibility; Disqualification............................... 73
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SECTION 7.12. Preferential Collection of Claims Against Company........... 73
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Termination of the Company's Obligations.................... 74
SECTION 8.02. Legal Defeasance and Covenant Defeasance.................... 75
SECTION 8.03. Application of Trust Money.................................. 79
SECTION 8.04. Repayment to Company or Guarantors.......................... 79
SECTION 8.05. Reinstatement............................................... 79
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.................................. 80
SECTION 9.02. With Consent of Holders..................................... 80
SECTION 9.03. Compliance with Trust Indenture Act......................... 82
SECTION 9.04. Revocation and Effect of Consents........................... 82
SECTION 9.05. Notation on or Exchange of Securities....................... 82
SECTION 9.06. Trustee May Sign Amendments, etc............................ 83
ARTICLE TEN
SUBORDINATION OF SECURITIES
SECTION 10.01. Securities Subordinate to Senior Indebtedness............... 83
SECTION 10.02. Payment Over of Proceeds upon Dissolution, etc.............. 83
SECTION 10.03. Suspension of Payment When Senior Indebtedness in
Default........................................................... 85
SECTION 10.04. Trustee's Relation to Senior Indebtedness................... 86
SECTION 10.05. Subrogation to Rights of Holders of Senior Indebtedness..... 86
SECTION 10.06. Provisions Solely to Define Relative Rights................. 87
SECTION 10.07. Trustee to Effectuate Subordination......................... 87
SECTION 10.08. No Waiver of Subordination Provisions....................... 88
SECTION 10.09. Notice to Trustee........................................... 89
SECTION 10.10. Reliance on Judicial Order or Certificate of Liquidating
Agent............................................................. 89
SECTION 10.11. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights.................................. 90
SECTION 10.12. Article Applicable to Paying Agents......................... 90
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SECTION 10.13. No Suspension of Remedies................................... 90
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act of 1939................................. 90
SECTION 11.02. Notices..................................................... 91
SECTION 11.03. Communication by Holders with Other Holders................. 92
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.......... 92
SECTION 11.05. Statements Required in Certificate or Opinion............... 92
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar................... 92
SECTION 11.07. Governing Law............................................... 93
SECTION 11.08. No Interpretation of Other Agreements....................... 93
SECTION 11.09. No Recourse Against Others.................................. 93
SECTION 11.10. Successors.................................................. 93
SECTION 11.11. Duplicate Originals......................................... 93
SECTION 11.12. Separability................................................ 93
SECTION 11.13. Table of Contents, Headings, etc............................ 93
SECTION 11.14. Benefits of Indenture....................................... 93
ARTICLE TWELVE
GUARANTEE OF SECURITIES
SECTION 12.01. Guarantee................................................... 94
SECTION 12.02. Execution and Delivery of Guarantee......................... 96
SECTION 12.03. Additional Guarantors....................................... 96
SECTION 12.04. Guarantee Obligations Subordinated to Guarantor Senior
Indebtedness...................................................... 97
SECTION 12.05. Payment Over of Proceeds upon Dissolution, etc., of a
Guarantor......................................................... 97
SECTION 12.06. Suspension of Payment When Guarantor Senior
Indebtedness in Default........................................... 98
SECTION 12.07. Release of a Guarantor...................................... 99
SECTION 12.08. Waiver of Subrogation....................................... 100
SECTION 12.09. Guarantee Provisions Solely to Define Relative Rights....... 101
SECTION 12.10. Trustee To Effectuate Subordination of Guarantee
Obligations....................................................... 101
SECTION 12.11. No Waiver of Guarantee Subordination Provisions............. 101
SECTION 12.12. Guarantors to Give Notice to Trustee........................ 103
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SECTION 12.13. Reliance on Judicial Order or Certificate of Liquidating
Agent Regarding Dissolution, etc., of Guarantors.................. 103
SECTION 12.14. Rights of Trustee as a Holder of Guarantor Senior
Indebtedness; Preservation of Trustee's Rights.................... 104
SECTION 12.15. Article Twelve Applicable to Paying Agents.................. 104
SECTION 12.16. No Suspension of Remedies................................... 104
SECTION 12.17. Trustee's Relation to Guarantor Senior Indebtedness......... 104
SECTION 12.18. Subrogation................................................. 105
SIGNATURES................................................................. 106
EXHIBIT A Form of Security
EXHIBIT B Form of Senior Subordinated Guarantee
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INDENTURE, dated as of November 15, 1995, among Interface, Inc., a
corporation incorporated under the laws of the State of Georgia (the
"Company"), Bentley Xxxxx, Inc., a Delaware corporation, Guilford (Delaware),
Inc., a Delaware corporation, Guilford of Maine, Inc., a Delaware corporation,
Interface Asia-Pacific, Inc., a Georgia corporation, Interface Europe, Inc., a
Delaware corporation, Interface Flooring Systems, Inc., a Georgia corporation,
Interface Research Corporation, a Delaware corporation, Pandel, Inc., a Georgia
corporation, Prince Street Technologies, Ltd., a Georgia corporation and
Rockland React-Rite, Inc., a Georgia corporation (collectively, the
"Guarantors"), and First Union National Bank of Georgia, a national banking
association, as trustee (the "Trustee").
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 Company's 9 1/2%
Senior Subordinated Notes due 2005 (the "Initial Securities"), and 9 1/2%
Series B Senior Subordinated Notes due 2005 (the "Exchange Securities" and,
together with the Initial Securities, the "Securities") of substantially the
tenor and amount hereinafter set forth.
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a person (a) assumed in
connection with an Asset Acquisition from such person or (b) existing at the
time such person becomes a Subsidiary of any other person.
"Affiliate" means, with respect to any specified person, any other person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified person.
"Agent" means any Registrar or Paying Agent of the Securities.
"Agent Members" shall have the meaning set forth in Section 2.09.
"Asset Acquisition" means (a) an Investment by the Company or any
Subsidiary of the Company in any other person pursuant to which such person
shall become a Subsidiary of the Company, or shall be merged with or into the
Company or any Subsidiary of the Company, (b) the acquisition by the Company or
any Subsidiary of the Company of the assets of any person (other than a
Subsidiary of the Company) which constitute all or substantially all of the
assets of such person or (c) the acquisition by the Company or any Subsidiary
of the Company of any division or line of business of any person (other than a
Subsidiary of the Company).
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"Asset Sale" means any direct or indirect sale, issuance, conveyance,
transfer, lease or other disposition to any person other than the Company or a
Wholly Owned Subsidiary of the Company, in one or a series of related
transactions, of (a) any Capital Stock of any Subsidiary of the Company (other
than in respect of directors' qualifying shares or investments by foreign
nationals mandated by applicable law); (b) all or substantially all of the
properties and assets of any division or line of business of the Company or any
Subsidiary of the Company; or (c) any other properties or assets of the Company
or any Subsidiary of the Company other than in the ordinary course of business.
For the purposes of this definition, the term "Asset Sale" shall not include
(i) any sale, transfer or other disposition of equipment, tools or other assets
by the Company or any of its Subsidiaries in one or a series of related
transactions in respect of which the Company or such Subsidiary receives cash
or property with an aggregate Fair Market Value of $1,000,000 or less; (ii)
sales of accounts receivable or interests in accounts receivable of the Company
or any Subsidiaries pursuant to the Receivables Purchase Agreement or the Bank
Receivables Agreement; and (iii) any sale, issuance, conveyance, transfer,
lease or other disposition of properties or assets that is governed by the
provisions described in Section 5.01.
"Asset Sale Offer" shall have the meaning set forth in Section 4.12.
"Asset Sale Offer Price" shall have the meaning set forth in Section 4.12.
"Asset Sale Purchase Date" shall have the meaning set forth in Section
4.12.
"Average Life to Stated Maturity" means, with respect to any Indebtedness,
as at any date of determination, the quotient obtained by dividing (a) the sum
of the products of (i) the number of years (or any fraction thereof) from such
date to the date or dates of each successive scheduled principal payment
(including, without limitation, any sinking fund requirements) of such
Indebtedness multiplied by (ii) the amount of each such principal payment by
(b) the sum of all such principal payments.
"Bank Receivables Agreement" means the Receivables Sale Agreement dated as
of July 31, 1995 (the "1995 Bank Receivables Agreement"), among Interface
Securitization Corporation, the Company, certain financial institutions parties
thereto, Trust Company Bank (now SunTrust Bank, Atlanta), as Co-Agent and
Administrative Agent, and The First National Bank of Chicago, as Co-Agent and
Documentation and Collateral Agent, as such agreement, in whole or in part, may
from time to time be amended, renewed, extended, substituted, refinanced,
restructured, replaced, supplemented or otherwise modified, whether with the
same or any other person(s) as purchaser(s), lender(s) or agent(s) (including,
without limitation, any successive renewals, extensions, substitutions,
refinancings, restructurings, replacements, supplements or other modifications
of the foregoing, whether with the same or any other person), provided that the
sales of receivables pursuant to any such Bank Receivables Agreement are on
non-recourse terms not materially
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less favorable to the Company and its Subsidiaries as provided for in the 1995
Bank Receivables Agreement and that the aggregate amount of sales under such
Bank Receivables Agreement and the Receivables Sales Agreement at any one time
outstanding shall not exceed a total of $100,000,000.
"Bankruptcy Law" means Xxxxx 00 Xxxxxx Xxxxxx Code or any similar law for
the relief of debtors.
"Board of Directors" means the board of directors of the Company or any
Guarantor, as the case may be, or any duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company or any Guarantor, as the case may be,
to have been duly adopted by the Board of Directors of the Company or such
Guarantor, as the case may be, and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in The City of New York, State
of New York or Atlanta, Georgia are authorized or obligated by law, regulation
or executive order to close.
"Capital Stock" means, with respect to any person, any and all shares,
interests, participations, rights in or other equivalents (however designated)
of such person's capital stock, and any rights (other than debt securities
convertible into capital stock), warrants or options exchangeable for or
convertible into such capital stock.
"Capitalized Lease Obligation" means any obligation under a lease of (or
other agreement conveying the right to use) any property (whether real,
personal or mixed) that is required to be classified and accounted for as a
capital lease obligation under GAAP, and the amount of any such obligation at
any date shall be the capitalized amount thereof at such date, determined in
accordance with GAAP.
"Cash Equivalents" means, at any time, (i) any evidence of Indebtedness
with a maturity of 180 days or less issued or directly and fully guaranteed or
insured by the United States of America or any agency or instrumentality
thereof (provided that the full faith and credit of the United States of
America is pledged in support thereof); (ii) certificates of deposit or
acceptances with a maturity of 180 days or less of any financial institution
that is a member of the Federal Reserve System having combined capital and
surplus and undivided profits of not less than $500,000,000; (iii) certificates
of deposit with a maturity of 180 days or less of any financial institution that
is not organized under the laws of the United States, any state thereof or the
District of Columbia that are rated at least A-1
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by S&P or at least P-1 by Moody's or at least an equivalent rating category of
another nationally recognized securities rating agency; and (iv) repurchase
agreements and reverse repurchase agreements relating to marketable direct
obligations issued or unconditionally guaranteed by the government of the United
States of America or issued by any agency thereof and backed by the full faith
and credit of the United States of America, in each case maturing within 180
days from the date of acquisition; provided that the terms of such agreements
comply with the guidelines set forth in the Federal Financial Agreements of
Depository Institutions With Securities Dealers and Others, as adopted by the
Comptroller of the Currency on October 31, 1985.
"Change of Control" means the occurrence of any of the following events:
(a) so long as the holders of the Company's Class B common stock are entitled
to elect a majority of the Company's board of directors, the Permitted Holders
shall at any time fail to be the "beneficial owners" (as defined in Rule 13d-3
and 13d-5 under the Exchange Act) of a majority of the issued and outstanding
shares of the Company's Class B common stock; (b) at any time during which the
holders of the Company's Class B common stock have ceased to be entitled to
elect a majority of the Company's board of directors (i) any "person" or
"group" (as such terms are used in Sections 13(d) and 14(d) of the Exchange
Act), other than the Permitted Holders, shall become the "beneficial owner" (as
defined in Rules 13d-3), of more than 35% of the total Voting Stock of the
Company provided, however, that the Permitted Holders (A) "beneficially own"
(as so defined) a lower percentage of the Voting Stock than such other person
or "group" and (B) do not have the right or ability by voting power, contract
or otherwise to elect or designate for election a majority of the Board of
Directors of the Company, or (ii) the Company consolidates with, or merges with
or into, another person or sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of its assets to any person, or
any person consolidates with, or merges with or into, the Company, in any such
event pursuant to a transaction in which the outstanding Voting Stock of the
Company is converted into or exchanged for cash, securities or other property,
other than any such transaction where (A) the outstanding Voting Stock of the
Company is converted into or exchanged for (1) Voting Stock (other than
Redeemable Capital Stock) of the surviving or transferee corporation or (2)
cash, securities and other property in an amount which could then be paid by
the Company as a Restricted Payment under the Indenture, or a combination
thereof, and (B) immediately after such transaction no "person" or "group" (as
such terms are used in Sections 13(d) and 14(d) of the Exchange Act), excluding
Permitted Holders, is the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that a person shall be deemed to have
"beneficial ownership" of all securities that such person has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time, upon the happening of an event or otherwise), directly or
indirectly, of more than 50% of the total Voting Stock of the surviving or
transferee corporation; (c) at any time during any consecutive two-year period,
individuals who at the beginning of such period constituted the Board of
Directors of the Company (together with any new directors whose election by such
Board of Directors or
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whose nomination for election by the stockholders of the Company was approved by
a vote of 66-2/3% of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Company then in office; or (d) the
Company is liquidated or dissolved or adopts a plan of liquidation.
"Change of Control Date" shall have the meaning set forth in Section 4.11.
"Change of Control Offer" shall have the meaning set forth in Section
4.11.
"Change of Control Purchase Date" shall have the meaning set forth in
Section 4.11.
"Class B Shareholders' Agreement" shall mean that certain Voting Agreement
for Interface, Inc. Class B Common Stock Shareholders dated as of April 13,
1993 by and among Xxx X. Xxxxxxxx and approximately 38 other holders of Class B
common stock of the Company, pursuant to which Xxx X. Xxxxxxxx is entitled to
direct the voting of the shares of Class B common stock subject thereto.
"Common Stock" means, with respect to any person, any and all shares,
interests or other participations in, and other equivalents (however designated
and whether voting or nonvoting) of, such person's common stock, whether
outstanding at the Issue Date or issued after the Issue Date, and includes,
without limitation, all series and classes of such common stock.
"Company" means the party named as such in this Indenture until a
successor replaces it (or any previous successor) pursuant to this Indenture,
and thereafter means such successor.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President,
an Executive Vice President, Senior Vice President or a Vice President, and by
any one of its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Consolidated Cash Flow Available for Fixed Charges" means, with respect
to any person for any period, (A) the sum of, without duplication, the amounts
for such period, taken as a single accounting period, of (a) Consolidated Net
Income, (b) Consolidated Non-cash Charges, (c) Consolidated Interest Expense,
(d) Consolidated Income Tax Expense and (e) one-third of Consolidated Rental
Payments less (B) any non-cash items increasing Consolidated Net Income for such
period.
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"Consolidated Fixed Charge Coverage Ratio" means, with respect to any
person, the ratio of the aggregate amount of Consolidated Cash Flow Available
for Fixed Charges of such person for the four full fiscal quarters immediately
preceding the date of the transaction (the "Transaction Date") giving rise to
the need to calculate the Consolidated Fixed Charge Coverage Ratio (such four
full fiscal quarter period being referred to herein as the "Four Quarter
Period") to the aggregate amount of Consolidated Fixed Charges of such person
for the Four Quarter Period. In addition to and without limitation of the
foregoing, for purposes of this definition, "Consolidated Cash Flow Available
for Fixed Charges" and "Consolidated Fixed Charges" shall be calculated after
giving effect on a pro forma basis for the period of such calculation to,
without duplication, (a) the incurrence of any Indebtedness of such person or
any of its Subsidiaries (and the application of the net proceeds thereof)
during the period commencing on the first day of the Four Quarter Period to and
including the Transaction Date (the "Reference Period"), including, without
limitation, the incurrence of the Indebtedness giving rise to the need to make
such calculation (and the application of the net proceeds thereof), as if such
incurrence (and application) occurred on the first day of the Reference Period,
and (b) any Asset Sales or Asset Acquisitions (including, without limitation,
any Asset Acquisition giving rise to the need to make such calculation as a
result of such person or one of its Subsidiaries (including any person who
becomes a Subsidiary as a result of the Asset Acquisition) incurring, assuming
or otherwise being liable for Acquired Indebtedness) occurring during the
Reference Period, as if such Asset Sale or Asset Acquisition occurred on the
first day of the Reference Period. Furthermore, in calculating "Consolidated
Fixed Charges" for purposes of determining the denominator (but not the
numerator) of this "Consolidated Fixed Charge Coverage Ratio," (i) interest on
outstanding Indebtedness determined on a fluctuating basis as of the
Transaction Date and which will continue to be so determined thereafter shall
be deemed to have accrued at a fixed rate per annum equal to the rate of
interest on such Indebtedness in effect on the Transaction Date; and (ii) if
interest on any Indebtedness actually incurred on the Transaction Date may
optionally be determined at an interest rate based upon a factor of a prime or
similar rate, a eurocurrency interbank offered rate, or other rates, then the
interest rate in effect on the Transaction Date will be deemed to have been in
effect during the Reference Period. If such person or any of its Subsidiaries
directly or indirectly guarantees Indebtedness of a third person, the above
clause shall give effect to the incurrence of such guaranteed Indebtedness as
if such person or such Subsidiary had directly incurred or otherwise assumed
such guaranteed Indebtedness.
"Consolidated Fixed Charges" means, with respect to any person for any
period, the sum of, without duplication, the amounts for such period of (i)
Consolidated Interest Expense, (ii) the product of (a) the aggregate amount of
dividends and other distributions paid or accrued during such period in respect
of Preferred Stock and Redeemable Capital Stock of such person and its
Subsidiaries on a consolidated basis and (b) a fraction, the numerator of which
is one and the denominator of which is one minus the
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then current combined federal, state and local statutory tax rate of such
person, expressed as a decimal and (iii) one-third of Consolidated Rental
Payments.
"Consolidated Income Tax Expense" means, with respect to any person for
any period, the provision for federal, state, local and foreign income taxes of
such person and its Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any person for any
period, without duplication, the sum of (i) the interest expense of such person
and its Subsidiaries for such period as determined on a consolidated basis in
accordance with GAAP, including, without limitation, (a) any amortization of
debt discount, (b) the net cost under Interest Rate Protection Obligations, (c)
the interest portion of any deferred payment obligation, (d) all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing and (e) all accrued interest and (ii) the
interest component of Capitalized Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by such person and its Subsidiaries during such
period as determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any person, for any
period, the consolidated net income (or loss) of such person and its
Subsidiaries for such period as determined in accordance with GAAP, adjusted,
to the extent included in calculating such net income, by excluding, without
duplication, (i) all extraordinary gains or losses, (ii) the portion of net
income (but not losses) of such person and its Subsidiaries allocable to
minority interests in unconsolidated persons to the extent that cash dividends
or distributions have not actually been received by such person or one of its
Subsidiaries, (iii) net income (or loss) of any person combined with such
person or one of its Subsidiaries on a "pooling of interests" basis
attributable to any period prior to the date of combination, (iv) any gain or
loss realized upon the termination of any employee pension benefit plan on an
after-tax basis, (v) gains or losses in respect of any Asset Sales by such
person or one of its Subsidiaries, and (vi) the net income of any Subsidiary of
such person to the extent that the declaration of dividends or similar
distributions by that Subsidiary of that income is not at the time permitted,
directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulations applicable to that Subsidiary or its stockholders.
"Consolidated Net Worth" means, with respect to any person at any date,
the consolidated stockholders' equity of such person less the amount of such
stockholders' equity attributable to Redeemable Capital Stock of such person
and its Subsidiaries, as determined in accordance with GAAP.
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"Consolidated Non-cash Charges" means, with respect to any person for any
period, the aggregate depreciation, amortization and other non-cash expenses of
such person and its Subsidiaries reducing Consolidated Net Income of such
person and its Subsidiaries for such period, determined on a consolidated basis
in accordance with GAAP (excluding any such charges constituting an
extraordinary item or loss or any such charge which required an accrual of or a
reserve for cash charges for any future period).
"Consolidated Rental Payments" of any person means, for any period, the
aggregate rental obligations of such person and its consolidated Subsidiaries
(not including taxes, insurance, maintenance and similar expenses that the
lessee is obligated to pay under the terms of the relevant leases), determined
on a consolidated basis in accordance with GAAP, payable in respect of such
period (net of income from subleases thereof, not including taxes, insurance,
maintenance and similar expenses that the sublessee is obligated to pay under
the terms of such sublease), whether or not such obligations are reflected as
liabilities or commitments on a consolidated balance sheet of such person and
its Subsidiaries or in the notes thereto, excluding, however, in any event, (i)
that portion of Consolidated Interest Expense of such person representing
payments by such person or any of its consolidated Subsidiaries in respect of
Capitalized Lease Obligations (net of payments to such person or any of its
consolidated Subsidiaries under subleases qualifying as capitalized lease
subleases to the extent that such payments would be deducted in determining
Consolidated Interest Expense) and (ii) the aggregate amount of amortization of
obligations of such person and its consolidated Subsidiaries in respect of such
Capitalized Lease Obligations for such period (net of payments to such person
or any of its consolidated Subsidiaries and subleases qualifying as capitalized
lease subleases to the extent that such payments could be deducted in
determining such amortization amount).
"Consolidated Tangible Assets" means the sum of the Tangible Assets of
the Company and its Subsidiaries after eliminating inter-company items, all
determined in accordance with GAAP, including appropriate deductions for
minority interest in Net Tangible Assets of such Subsidiaries.
"control" means, with respect to any specified person, the power to direct
the management and policies of such person, directly or indirectly, whether
through the ownership of Voting Stock, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Convertible Debentures" means the Company's 8% Convertible Subordinated
Debentures due 2013.
"Corporate Trust Office" means the corporate trust office of the Trustee
at which at any particular time its corporate trust business shall be
principally administered, which on the date hereof is located in Atlanta,
Georgia.
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"covenant defeasance" shall have the meaning set forth in Section 8.02.
"Credit Agreements" means, collectively, (i) the Amended and Restated
Credit Agreement dated as of June 30, 1995, among the Company, certain
Subsidiaries of the Company, the banks and other lending institution parties
thereto, Trust Company Bank (now SunTrust Bank, Atlanta), as Co-Agent and
Collateral Agent, and The First National Bank of Chicago, as Co-Agent, as
amended by the First Amendment to Amended and Restated Credit Agreement dated
as of July 31, 1995 and the Second Amendment to Amended and Restated Credit
Agreement dated as of the Issue Date, and (ii) the Letter of Credit Agreement
dated as of January 9, 1995, among the Company, certain Subsidiaries of the
Company, the banks and other lending institutions parties thereto, and Trust
Company Bank (now SunTrust Bank, Atlanta), as Domestic Agent and Collateral
Agent, as amended by the Master Amendment to Credit Documents dated as of June
30, 1995, in each case as such agreement, in whole or in part, may from time to
time be amended, renewed, extended, substituted, refinanced, restructured,
replaced, supplemented or otherwise modified (including, without limitation,
any successive renewals, extensions, substitutions, refinancings,
restructurings, replacements, supplementations or other modifications of the
foregoing), and whether with the present lenders or any other lenders.
"Currency Agreement" means, with respect to any person, any foreign
exchange contract, currency swap agreement or other similar agreement or
arrangement designed to protect such person or any of its Subsidiaries against
fluctuations in currency values.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees and their
respective successors.
"Designated Senior Indebtedness" means (i) all Senior Indebtedness under
the Credit Agreements and (ii) any other Senior Indebtedness which (a) at the
time of the determination exceeds $25,000,000 in aggregate principal amount and
(b) is specifically designated in the instrument evidencing such Senior
Indebtedness as "Designated Senior Indebtedness" by the Company.
"Event of Default" has the meaning set forth under Section 6.01 herein.
"Excess Proceeds" shall have the meaning set forth in Section 4.12.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" means the offer by the Company to the Holders of the
Initial Securities to exchange all of the Initial Securities for Exchange
Securities, as provided for in the Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"Exchange Securities" has the meaning stated in the second paragraph of
this Indenture and refers to any Exchange Securities containing terms
substantially identical to the Initial Securities (except that (i) such
Exchange Securities shall not contain terms with respect to transfer
restrictions and shall be registered under the Securities Act, and (ii) certain
provisions relating to an increase in the stated rate of interest thereon shall
be eliminated) that are issued and exchanged for the Initial Securities in
accordance with the Exchange Offer, as provided for in the Registration Rights
Agreement and this Indenture.
"Fair Market Value" means, with respect to any assets the price, as
determined by the Board of Directors of the Company, acting in good faith,
which could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of which is under
pressure or compulsion to complete the transaction; provided, however, that
with respect to any transaction which involves an asset or assets in excess of
$5,000,000, such determination shall be evidenced by a certificate of an
officer of the Company delivered to the Trustee.
"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 may be approved by a significant segment of the accounting
profession of the United States of America, which are applicable from time to
time and are consistently applied.
"Global Securities" shall have the meaning set forth in Section 2.01.
"Guarantee" shall mean each guarantee of the Securities by each Guarantor
created pursuant to Article Twelve.
"guarantee" means, as applied to any obligation, (i) a guarantee (other
than by endorsement of negotiable instruments for collection in the ordinary
course of business), direct or indirect, in any manner, of any part or all of
such obligation and (ii) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance)
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of all or any part of such obligation, including, without limiting the
foregoing, the payment of amounts drawn down by letters of credit.
"Guarantor" means (i) each of Guilford (Delaware), Inc., Guilford of
Maine, Inc., Interface Asia-Pacific, Inc., Interface Europe, Inc., Interface
Flooring Systems, Inc., Interface Research Corporation, Pandel, Inc., Rockland
React-Rite, Inc., Bentley Xxxxx, Inc., Prince Street Technologies, Ltd. and
each other Material U.S. Subsidiary and (ii) each person who delivers a
Guarantee pursuant to the covenant described in Section 4.16 and shall include
any successor replacing it pursuant to this Indenture, and thereafter means
such successor.
"Guarantor Senior Indebtedness" means the principal of, premium, if any,
and interest on any Indebtedness of a Guarantor, whether outstanding on the
Issue Date or thereafter created, incurred or assumed, and whether at any time
owing, actually or contingently, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Guarantees of such Guarantor. Without
limiting the generality of the foregoing, "Guarantor Senior Indebtedness" shall
also include the principal of, premium, if any, and interest (including
interest accruing after the filing of a petition initiating any proceeding
under any state, federal or foreign bankruptcy or insolvency laws, whether or
not allowable as a claim in such proceeding) and shall also include
reimbursement payments, fees, expenses, indemnities, gross-up payments, and
other obligations of every nature from time to time owing, actually or
contingently by the Guarantor in respect of any such amounts owing by the
Company or any of its Subsidiaries under the Credit Agreements, the Receivables
Purchase Agreement, the Bank Receivables Agreement, the Guilford Equipment
Lease, Interest Rate Protection Agreements, Currency Agreements or other
extensions of credit to the Company or any of its Subsidiaries from banks or
other lending institutions. Notwithstanding the foregoing, "Guarantor Senior
Indebtedness" shall not include (a) Indebtedness evidenced by the Guarantee of
such Guarantor, (b) Indebtedness that is expressly subordinate or junior in
right of payment to any Indebtedness of such Guarantor, (c) Indebtedness which,
when incurred and without respect to any election under Section 1111(b) of
Xxxxx 00, Xxxxxx Xxxxxx Code, is without recourse to such Guarantor, (d)
Indebtedness which is represented by Redeemable Capital Stock, (e) Indebtedness
for goods, materials or services purchased in the ordinary course of business
or Indebtedness consisting of trade payables or other current liabilities (other
than Indebtedness in respect of any services rendered by or purchased from, or
current liabilities owing to, banks or financial institutions, or the current
portion of any long-term Indebtedness which would constitute Guarantor Senior
Indebtedness but for the operation of this clause (e)), (f) Indebtedness of or
amounts owed by such Guarantor for compensation to employees or for services
rendered to such Guarantor, (g) any liability for foreign, federal, state, local
or other taxes owed or owing by such Guarantor, (h) Indebtedness of such
Guarantor to a Subsidiary of such Guarantor or any other Affiliate of such
Guarantor (other
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than the Company) or any of such Affiliate's Subsidiaries, (i) Indebtedness
evidenced by any guarantee of any Subordinated Indebtedness, (j) that portion of
any Indebtedness which, at the time of the incurrence, is incurred by such
Guarantor in violation of this Indenture and (k) amounts owing under leases
(other than Capitalized Lease Obligations and the Guilford Equipment Lease).
"Guilford Equipment Lease" means the Master Equipment Lease Agreement
dated as of June 30, 1995, between Fleet Credit Corporation and Guilford of
Maine, Inc., relating to the leasing of various textile manufacturing equipment
in aggregate amount (acquisition costs) of not more than $19,000,000, as such
agreement, in whole or in part, may from time to time be amended, renewed,
extended, substituted, refinanced, restructured, replaced, supplemented or
otherwise modified, whether with the same or any other person(s) as lessor(s)
or lender(s) (including, without limitation, any successive renewals,
extensions, substitutions, refinancings, restructurings, replacements,
supplements or other modifications of the foregoing).
"Holder" or "Securityholder" means the person in whose name a Security is
registered on the Registrar's books.
"Indebtedness" means, with respect to any person, without duplication, (a)
all liabilities of such person for borrowed money or for the deferred purchase
price of property or services, excluding any trade payables and other accrued
current liabilities incurred in the ordinary course of business and which are
not overdue by more than 90 days, but including, without limitation, all
obligations, contingent or otherwise, of such person in connection with any
letters of credit, banker's acceptance or other similar credit transaction, (b)
all obligations of such person evidenced by bonds, notes, debentures or other
similar instruments, (c) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such person (even if the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), but excluding trade accounts payable arising in the
ordinary course of business, (d) all obligations of such person arising under
Capitalized Lease Obligations (including those arising under the Guilford
Equipment Lease) of such person, (e) all Indebtedness referred to in the
preceding clauses of other persons and all dividends of other persons, the
payment of which is secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien upon
property (including, without limitation, accounts and contract rights) owned by
such person, even though such person has not assumed or become liable for the
payment of such Indebtedness (the amount of such obligation being deemed to be
the lesser of the value of such property or asset or the amount of the
obligation so secured), (f) all guarantees of Indebtedness referred to in this
definition by such person, (g) all Redeemable Capital Stock of such person
valued at the greater of its voluntary or involuntary maximum fixed repurchase
price plus accrued dividends, (h) all obligations under or in respect of
Currency
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Agreements and Interest Rate Protection Obligations of such person, and (i) any
amendment, supplement, modification, deferral, renewal, extension or refunding
of any liability of the types referred to in clauses (a) through (h) above. For
purposes hereof, the "maximum fixed repurchase price" of any Redeemable Capital
Stock which does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Redeemable Capital Stock as if such Redeemable
Capital Stock were purchased on any date on which Indebtedness shall be required
to be determined pursuant to this Indenture, and if such price is based upon, or
measured by, the fair market value of such Redeemable Capital Stock, such fair
market value shall be determined in good faith by the board of directors of the
issuer of such Redeemable Capital Stock.
"Indenture" means this Indenture, as amended, modified or supplemented
from time to time.
"Independent Financial Advisor" means a firm (i) which does not, and whose
directors, officers and employees or Affiliates do not, have a direct or
indirect financial interest in the Company and (ii) which, in the judgment of
the Board of Directors of the Company, is otherwise independent and qualified
to perform the task for which it is to be engaged.
"Initial Purchasers" means Xxxxx Xxxxxx, Inc., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, The Xxxxxxxx-Xxxxxxxx Company, Inc., Wheat, First
Securities, Inc., and First Chicago Capital Markets, Inc.
"Initial Securities" has the meaning stated in the second paragraph of
this Indenture.
"interest" means, with respect to any Security, the amount of all interest
accruing on such Security, including all interest accruing subsequent to the
occurrence of any events specified in Sections 6.01(f) and (g) or which would
have accrued but for any such event, whether or not such claims are allowable
under applicable law.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities, as set forth therein.
"Interest Rate Protection Agreement" means, with respect to the Company or
any of its Subsidiaries, any arrangement with any other person whereby,
directly or indirectly, such person is entitled to receive from time to time
periodic payments calculated by applying either a floating or a fixed rate of
interest on a stated notional amount in exchange for periodic payments made by
such person calculated by applying a fixed or a floating rate of interest on
the same notional amount and shall include without limitation, interest rate
swaps, caps, floors, collars and similar agreements.
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"Interest Rate Protection Obligations" means the obligations of any person
pursuant to an Interest Rate Protection Agreement.
"Investment" means, with respect to any person, any direct or indirect
loan or other extension of credit or capital contribution to (by means of any
transfer of cash or other property to others or any payment for property or
services for the account or use of others), or any purchase or acquisition by
such person of any Capital Stock, bonds, notes, debentures or other securities
or evidences of Indebtedness issued by, any other person. In addition, the
Fair Market Value of the assets of any Subsidiary of the Company at the time
that such Subsidiary is designated as an Unrestricted Subsidiary shall be
deemed to be an Investment made by the Company in such Unrestricted Subsidiary
at such time. "Investments" shall exclude extensions of trade credit by the
Company and its Subsidiaries in the ordinary course of business in accordance
with normal trade practices of the Company or such Subsidiary, as the case may
be. "Investments" do not include payments made as the purchase consideration
in an Asset Acquisition.
"Issue Date" means November 21, 1995.
"legal defeasance" shall have the meaning set forth in Section 8.02.
"Lien" means any mortgage, charge, pledge, lien (statutory or other),
security interest, hypothecation, assignment for security, claim, or preference
or priority or other encumbrance upon or with respect to any property of any
kind. A person shall be deemed to own subject to a Lien any property which
such person has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement.
"Material Subsidiary" means each Subsidiary, now existing or hereinafter
established or acquired, that has or acquires total assets in excess of
$10,000,000, or that holds any fixed assets material to the operations or
business of another Material Subsidiary.
"Material U.S. Subsidiary" means each Material Subsidiary that is
incorporated in the United States or any State thereof.
"Maturity Date" means, with respect to any Security, the date on which any
principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity with respect to such principal or by
declaration of acceleration, call for redemption or purchase or otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
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"Net Cash Proceeds" means, with respect to any Asset Sale, the proceeds
thereof in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents (except to the extent that such obligations are financed or sold
with recourse to the Company or any Subsidiary of the Company) net of (i)
brokerage commissions and other fees and expenses (including, without
limitation, fees and expenses of legal counsel and investment bankers) related
to such Asset Sale, (ii) provisions for all taxes payable as a result of such
Asset Sale, (iii) amounts required to be paid to any person (other than the
Company or any Subsidiary of the Company) owning a beneficial interest in the
assets subject to the Asset Sale and (iv) appropriate amounts to be provided by
the Company or any Subsidiary of the Company, as the case may be, as a reserve
required in accordance with GAAP against any liabilities associated with such
Asset Sale and retained by the Company or any Subsidiary of the Company, as the
case may be, after such Asset Sale, including, without limitation, pension and
other post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale, all as reflected in an Officers' Certificate delivered to the
Trustee.
"Non-payment Default" shall have the meaning set forth in Section
10.03(b).
"Non-U.S. Person" means a Person that is not a "U.S. person", as defined
in Regulation S.
"Officer" means the Chairman of the Board, the President, any Executive
Vice President, any Senior Vice President, any Vice President, the Chief
Financial Officer, the Treasurer, the Secretary or the Controller of the
Company or a Guarantor, as the case may be.
"Officers' Certificate" means a certificate signed by two Officers or by
an Officer and an Assistant Treasurer or Assistant Secretary of the Company or
a Guarantor, as the case may be, and delivered to the Trustee.
"Offshore Global Security" shall have the meaning set forth in Section
2.01.
"Offshore Physical Securities" shall have the meaning set forth in Section
2.01.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company.
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"Pari Passu Indebtedness" means Indebtedness of the Company or any
Guarantor which ranks pari passu in right of payment with the Securities or the
Guarantee of such Guarantor, as the case may be.
"Paying Agent" has the meaning set forth in Section 2.04 except that, for
the purposes of Section 4.11 and Section 4.12 and Articles Three and Eight, the
Paying Agent shall not be the Company or a Subsidiary of the Company or any of
their respective Affiliates.
"Payment Blockage Period" shall have the meaning set forth in Section
10.03.
"Payment Default" shall have the meaning set forth in Section 10.03(a).
"Permitted Holder" means (i) for so long as Xxx X. Xxxxxxxx shall be
living and is performing the duties of chairman and chief executive officer of
the Company, Xxx X. Xxxxxxxx and each other party to the Class B Shareholders'
Agreement, Xxxxx Xxxxxx, Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxx, Xxxxx X. XxXxxxx,
and Xxxxx X. Xxxxxx, and (ii) at all times thereafter, the individuals listed
on Schedule 10.11 to the Amended and Restated Credit Agreement dated June 30,
1995; provided that in the case of each individual referred to in the preceding
clauses (i) and (ii), for the purposes of this definition the reference to such
individual shall be deemed to include the members of such individual's
immediate family, such individual's estate, and any trusts established by such
individual (whether inter vivos or testamentary) for the benefit of members of
such individual's immediate family.
"Permitted Indebtedness" means the following Indebtedness (each of which
shall be given independent effect):
(a) Indebtedness of the Company evidenced by the Securities and
Indebtedness of any Guarantor evidenced by its Guarantee;
(b) Indebtedness of the Company and its Subsidiaries outstanding on
the Issue Date;
(c) Indebtedness of the Company and its Subsidiaries in respect of
the Credit Agreements in an aggregate principal amount at any one time
outstanding not to exceed $300,000,000;
(d) (i) Interest Rate Protection Obligations of the Company covering
Indebtedness of the Company or a Subsidiary of the Company and (ii)
Interest Rate Protection Obligations of any Subsidiary of the Company
covering Indebtedness of such Subsidiary; provided, however, that, in the
case of either clause (i) or (ii), (x) any Indebtedness to which any such
Interest Rate Protection Obligations relate
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bears interest at fluctuating interest rates and is otherwise permitted to
be incurred under the provisions of Section 4.08 and (y) the notional
principal amount of any such Interest Rate Protection Obligations does not
exceed the principal amount of the Indebtedness to which such Interest
Rate Protection Obligations relate;
(e) Indebtedness of a Wholly Owned Subsidiary owed to and held by
the Company or another Wholly Owned Subsidiary, provided that each loan
or other extension of credit (i) made by a Guarantor to another
Subsidiary that is not a Guarantor shall not be subordinated to other
obligations of such Subsidiary and (ii) made to a Guarantor by another
Subsidiary that is not a Guarantor shall be made on a subordinated basis,
except that (i) any transfer (which shall not include a pledge or
assignment as collateral to or for the benefit of any holders of Senior
Indebtedness) of such Indebtedness by the Company or a Wholly Owned
Subsidiary (other than to the Company or to a Wholly Owned Subsidiary)
and (ii) the sale, transfer or other disposition by the Company or any
Subsidiary of the Company of Capital Stock of a Wholly Owned Subsidiary
which is owed Indebtedness of another Wholly Owned Subsidiary such that
it ceases to be a Wholly Owned Subsidiary of the Company shall, in each
case, be an incurrence of Indebtedness by such Subsidiary subject to the
other provisions of Section 4.08;
(f) Indebtedness of the Company owed to and held by a Wholly Owned
Subsidiary of the Company which is unsecured and subordinated in right of
payment to the payment and performance of the Company's obligations under
this Indenture and the Securities except that (i) any transfer (which
shall not include a pledge or assignment as collateral to or for the
benefit of any holders of Senior Indebtedness) of such Indebtedness by a
Wholly Owned Subsidiary of the Company (other than to another Wholly
Owned Subsidiary of the Company) and (ii) the sale, transfer or other
disposition by the Company or any Subsidiary of the Company of Capital
Stock of a Wholly Owned Subsidiary which holds Indebtedness of the
Company such that it ceases to be a Wholly Owned Subsidiary shall, in
each case, be an incurrence of Indebtedness by the Company, subject to
the other provisions of Section 4.08;
(g) Indebtedness in respect of Currency Agreements; provided that in
the case of Currency Agreements which relate to Indebtedness, such
Currency Agreements do not increase the Indebtedness of the Company and
its Subsidiaries outstanding other than as a result of fluctuations in
foreign currency exchange rates or by reason of fees, indemnities and
compensation payable thereunder;
(h) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of
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business; provided, however, that such Indebtedness is extinguished within
five Business Days of incurrence;
(i) Indebtedness of the Company or any of its Subsidiaries evidenced
by guarantees of any Permitted Indebtedness subject, in the case of any
Subsidiary, to compliance with the requirements set forth in Section
4.16;
(j) Indebtedness of the Company or any of its Subsidiaries
represented by letters of credit for the account of the Company or such
Subsidiary, as the case may be, in order to provide security for workers'
compensation claims, payment obligations in connection with
self-insurance or similar requirements in the ordinary course of
business;
(k) Indebtedness incurred with respect to (i) letters of credit
issued for the account of the Company or any Subsidiary of the Company
pursuant to the Credit Agreements, and (ii) unsecured letters of credit
in addition to those described in (j) above, issued for the account of
the Company or any Subsidiary of the Company in the ordinary course of
business in aggregate outstanding stated amounts not to exceed
$5,000,000;
(l) Indebtedness, if any, owing by the Company or any Subsidiary
under receivables sales agreements in connection with sales of
receivables of the Company or any Subsidiary pursuant to the Receivables
Purchase Agreement or the Bank Receivables Agreement;
(m) Indebtedness, if any, arising under the Guilford Equipment
Lease;
(n) Indebtedness of the Company or any Subsidiary of the Company in
addition to that described in clauses (a) through (m) above, in an
aggregate principal amount outstanding at any time not exceeding
$30,000,000; and
(o) (i) Indebtedness of the Company the proceeds of which are used
to refinance (whether by amendment, renewal, extension, substitution,
refinancing, refunding or replacement, whether with the same or any other
person(s) as lender(s), including successive financings thereof)
Indebtedness of the Company or any of its Subsidiaries and (ii)
Indebtedness of any Subsidiary of the Company the proceeds of which are
used solely to refinance (whether by amendment, renewal, extension,
substitution, refinancing, refunding or replacement, whether with the
same or any other person(s) as lender(s), including successive financings
thereof) Indebtedness of such Subsidiary, in each case to the extent such
Indebtedness is described in clause (a) or (b) of this definition (other
than the Indebtedness refinanced, redeemed or retired on the Issue Date)
or is originally incurred pursuant to the proviso in Section
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4.08; provided, however, that (x) the principal amount of Indebtedness
incurred pursuant to this clause (o) (or, if such Indebtedness provides
for an amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the maturity thereof, the original
issue price of such Indebtedness) shall not exceed the sum of the
principal amount of Indebtedness so refinanced (except where the amount of
any excess is permitted pursuant to another clause of this definition),
plus the amount of any premium or other amount required to be paid in
connection with such refinancing pursuant to the terms of such
Indebtedness or the amount of any premium or other amount reasonably
determined by the Board of Directors of the Company as necessary to
accomplish such refinancing by means of a tender offer or privately
negotiated purchase, plus the amount of expenses in connection therewith,
and (y) in the case of Indebtedness incurred by the Company pursuant to
this clause (o) to refinance Subordinated Indebtedness, such Indebtedness
(A) has no scheduled principal payment prior to the 91st day after the
final maturity date of the Indebtedness refinanced, (B) has an Average
Life to Stated Maturity greater than the remaining Average Life to Stated
Maturity of the Securities and (C) is subordinated to the Securities in
the same manner and to the same extent that the Subordinated Indebtedness
being refinanced is subordinated to the Securities and (z) in the case of
Indebtedness incurred by the Company pursuant to this clause (o) to
refinance Pari Passu Indebtedness, such Indebtedness (A) has no scheduled
principal payment prior to the 91st day after the final maturity date of
the Indebtedness refinanced, (B) has an Average Life to Stated Maturity
greater than the remaining Average Life to Stated Maturity of the
Securities and (C) constitutes Pari Passu Indebtedness or Subordinated
Indebtedness.
"Permitted Investments" means any of the following: (i) Investments
in any Subsidiary of the Company (including any person that pursuant to such
Investment becomes a Subsidiary of the Company) and any person that is merged
or consolidated with or into, or transfers or conveys all or substantially all
of its assets to, the Company or any Subsidiary of the Company at the time such
Investment is made; (ii) Investments in Cash Equivalents; (iii) Investments in
deposits with respect to leases or utilities provided to third parties in the
ordinary course of business; (iv) Investments in the Securities; (v)
Investments in Currency Agreements on commercially reasonable terms entered
into by the Company or any of its Subsidiaries in the ordinary course of
business in connection with the operations of the business of the Company or
its Subsidiaries to hedge against fluctuations in foreign exchange rates; (vi)
loans or advances to officers, employees or consultants of the Company and its
Subsidiaries in the ordinary course of business for bona fide business purposes
of the Company and its Subsidiaries (including travel and moving expenses) not
in excess of $1,000,000 in the aggregate at any one time outstanding; (vii)
Investments in evidences of Indebtedness, securities or other property received
from another person by the Company or any of its Subsidiaries in connection
with any bankruptcy proceeding or by reason of a composition or readjustment of
debt or a reorganization of such person or as a result of
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foreclosure, perfection or enforcement of any Lien in exchange for evidences of
Indebtedness, securities or other property of such person held by the Company or
any of its Subsidiaries, or for other liabilities or obligations of such other
person to the Company or any of its Subsidiaries that were created, in
accordance with the terms of the Indenture; (viii) Investments in Interest Rate
Protection Agreements on commercially reasonable terms entered into by the
Company or any of its Subsidiaries in the ordinary course of business in
connection with the operations of the business of the Company or its
Subsidiaries to hedge against fluctuations in interest rates; or (ix)
Investments, in addition to those described in clauses (i) through (viii) above,
in an aggregate amount at any time outstanding not to exceed 15% of the
Company's Consolidated Net Worth.
"Permitted Junior Securities" shall have the meaning set forth in Section
10.02.
"Permitted Liens" means the following types of Liens:
(a) Liens for taxes, assessments or governmental charges or claims
either (a) not delinquent or (b) contested in good faith by appropriate
proceedings and as to which the Company or any of its Subsidiaries shall
have set aside on its books such reserves as may be required pursuant to
GAAP;
(b) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other
Liens imposed by law incurred in the ordinary course of business for sums
not yet delinquent or being contested in good faith, if such reserve or
other appropriate provision, if any, as shall be required by GAAP shall
have been made in respect thereof;
(c) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed
money);
(d) judgment Liens not giving rise to an Event of Default so long as
such Lien is adequately bonded and any appropriate legal proceedings
which may have been duly initiated for the review of such judgment shall
not have been finally terminated or the period within which such
proceedings may be initiated shall not have expired;
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(e) Easements, rights-of-way, zoning restrictions and other similar
charges or encumbrances in respect of real property not interfering in
any material respect with the ordinary conduct of the business of the
Company of any of its Subsidiaries;
(f) any interest or title of a lessor under any Capitalized Lease
Obligation or operating lease;
(g) purchase money Liens to finance the acquisition or construction
of property or assets of the Company or any Subsidiary of the Company
acquired or constructed in the ordinary course of business; provided,
however, that (i) the related purchase money Indebtedness shall not be
secured by any property or assets of the Company or any Subsidiary of the
Company other than the property and assets so acquired or constructed and
(ii) the Lien securing such Indebtedness either (x) exists at the time of
such acquisition or construction or (y) shall be created within 90 days
of such acquisition or construction;
(h) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(i) Liens on any property securing the obligations of the Company or
any Subsidiaries in respect of letters of credit issued by the lenders
under the Credit Agreements and as permitted under the Credit Agreements
in support of industrial development revenue bonds;
(j) Liens, if any, that may be deemed to have been granted in
connection with accounts receivable or interests in accounts receivable
of the Company or any Subsidiary as a result of the assignment thereof
pursuant to the Receivables Purchase Agreement or the Bank Receivables
Agreement;
(k) Liens, if any, arising under the Guilford Equipment Lease; and
(l) Liens, in addition to those described in clauses (a) through (k)
above, securing Indebtedness in an amount not to exceed 10% of the
Consolidated Tangible Assets of the Company.
"person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust, charitable
foundation, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Physical Securities" shall have the meaning set forth in Section 2.01.
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"Predecessor Security" means, with respect to any particular Security,
every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 2.07 hereof
in exchange for a mutilated Security or in lieu of a lost, destroyed or stolen
Security shall be deemed to evidence the same debt as the mutilated, lost,
destroyed or stolen Security.
"Preferred Stock" means, with respect to any person, any and all shares,
interests, participations or other equivalents (however designated) of such
person's preferred or preference stock whether now outstanding or issued after
the date of this Indenture, and includes, without limitation, all classes and
series of preferred or preference stock.
"principal" means, with respect to any debt security, the principal of the
security plus, when appropriate, the premium, if any, on the security and any
interest on overdue principal.
"Private Placement Legend" shall have the meaning set forth in Section
2.02.
"QIB" means a "Qualified Institutional Buyer" under Rule 144A.
"Receivables Purchase Agreement" means the Receivables Purchase Agreement
dated as of July 31, 1995 (the "1995 Receivables Purchase Agreement") among the
Company, Interface Securitization Corporation, Special Purpose Accounts
Receivables Cooperative Corporation, and Canadian Imperial Bank of Commerce as
servicing agent, as such agreement, in whole or in part, may from time to time
be amended, renewed, extended, substituted, refinanced, restructured, replaced,
supplemented or otherwise modified, whether with the same or any other
person(s) as purchaser(s), lender(s) or agent(s) (including, without
limitation, any successive renewals, extensions, substitutions, refinancings,
restructurings, replacements, supplements or other modifications of the
foregoing) provided that the sales of receivables pursuant to any such
Receivables Purchase Agreement are on non-recourse terms not materially less
favorable to the Company and its Subsidiaries as provided for in the 1995
Receivables Purchase Agreement and that the aggregate amount of sales under such
Receivables Sales Agreement and the Bank Receivables Agreement at any one time
outstanding shall not exceed a total of $100,000,000.
"Redeemable Capital Stock" means any shares of any class or series of
Capital Stock that, either by the terms thereof, by the terms of any security
into which it is convertible or exchangeable or by contract or otherwise, is or
upon the happening of an event or passage of time would be, required to be
redeemed prior to the Stated Maturity with respect to the principal of any
Security or is redeemable at the option of the holder thereof at any time prior
to any such Stated Maturity, or is convertible into or exchangeable for debt
securities at any time prior to any such Stated Maturity.
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"Redemption Date" means, with respect to any Security to be redeemed, the
date fixed by the Company for such redemption pursuant to this Indenture and
the Securities.
"Redemption Price" means, with respect to any Security to be redeemed, the
price fixed for such redemption pursuant to the terms of this Indenture and the
Securities.
"Registrar" has the meaning set forth in Section 2.04.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of November 21, 1995, among the Company, the Guarantors and the
Initial Purchasers.
"Registration Statement" means the Registration Statement as defined in
the Registration Rights Agreement.
"Regulation S" means Regulation S under the Securities Act.
"Restricted Payment" has the meaning set forth in Section 4.09.
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" means the Securities and Exchange Commission, as from time to time
constituted, or if at any time after the execution of the Indenture such
Commission is not existing and performing the applicable duties now assigned to
it, then the body or bodies performing such duties at such time.
"Securities" means the securities that are issued under this Indenture, as
amended or supplemented from time to time pursuant to this Indenture.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Senior Indebtedness" means the principal of, premium, if any, and
interest on any Indebtedness of the Company, whether outstanding on the Issue
Date or thereafter created, incurred or assumed, and whether at any time owing,
actually or contingently, unless, in the case of any particular Indebtedness,
the instrument creating or evidencing the same or pursuant to which the same is
outstanding expressly provides that such Indebtedness shall not be senior in
right of payment to the Securities. Without limiting the generality of the
foregoing, "Senior Indebtedness" shall include the principal of, premium, if
any, and interest (including interest accruing after the filing of a petition
initiating any proceeding under any state, federal or foreign bankruptcy or
insolvency laws, whether or not allowable as a claim in such proceeding) and
shall also include reimbursement payments, fees,
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expenses, indemnities, gross-up payments, and other obligations of every nature
from time to time owing, actually or contingently, by the Company in respect of
any such amounts owing by the Company or any of its Subsidiaries under the
Credit Agreements, the Receivables Purchase Agreement, the Bank Receivables
Agreement, the Guilford Equipment Lease, Interest Rate Protection Agreements,
Currency Agreements or other extensions of credit to the Company or any of its
Subsidiaries from banks or other lending institutions. Notwithstanding the
foregoing, "Senior Indebtedness" shall not include (a) Indebtedness evidenced by
the Securities, (b) Indebtedness that is expressly subordinate or junior in
right of payment to any Indebtedness of the Company, (c) Indebtedness which,
when incurred and without respect to any election under Section 1111(b) of Xxxxx
00, Xxxxxx Xxxxxx Code, is without recourse to the Company, (d) Indebtedness
which is represented by Redeemable Capital Stock, (e) Indebtedness for goods,
materials or services purchased in the ordinary course of business or
Indebtedness consisting of trade payables or other current liabilities (other
than Indebtedness in respect of any services rendered by or purchased from, or
current liabilities owing to, banks or financial institutions or the current
portion of any long-term Indebtedness which would constitute Senior Indebtedness
but for the operation of this clause (e)), (f) Indebtedness of or amounts owed
by the Company for compensation to employees or for services rendered to the
Company, (g) any liability for federal, state, local or other taxes owed or
owing by the Company, (h) Indebtedness of the Company to a Subsidiary of the
Company or any other Affiliate of the Company or any of such Affiliate's
Subsidiaries, (i) that portion of any Indebtedness which, at the time of the
incurrence, is incurred by the Company in violation of the Indenture and (j)
amounts owing under leases (other than Capitalized Lease Obligations and the
Guilford Equipment Lease).
"Senior Representative" means (i) with respect to the Credit Agreements,
SunTrust Bank, Atlanta or any successor agent under the terms of the Credit
Agreements and (ii) with respect to any other Designated Senior Indebtedness,
any other representatives designated in writing to the Trustee of the holders of
any other class or issue of Designated Senior Indebtedness.
"Shelf Registration Statement" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
"Significant Subsidiary" shall have the same meaning as in Rule 1.02(v) of
Regulation S-X under the Securities Act.
"S&P" means Standard & Poor's Corporation, and its successors.
"Stated Maturity" means, when used with respect to any Security or any
installment of interest thereon, the date specified in such Security as the
fixed date on which the principal of such Security or such installment of
interest is due and payable, and when used with respect to any other
Indebtedness, means the date specified in the instrument
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governing such Indebtedness as the fixed date on which the principal of such
Indebtedness, or any installment of interest thereon, is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company or a
Guarantor which is expressly subordinated in right of payment to the Securities
or the Guarantee of such Guarantor, as the case may be.
"Subsidiary" means, with respect to any person, (i) a corporation a
majority of whose Voting Stock is at the time, directly or indirectly, owned by
such person, by one or more Subsidiaries of such person or by such person and
one or more Subsidiaries thereof and (ii) any other person (other than a
corporation), including, without limitation, a joint venture, in which such
person, one or more Subsidiaries thereof or such person and one or more
Subsidiaries thereof, directly or indirectly, at the date of determination
thereof, has at least majority ownership interest entitled to vote in the
election of directors, managers or trustees thereof (or other person performing
similar functions). For purposes of this definition, any directors'
qualifying shares or investments by foreign nationals mandated by applicable
law shall be disregarded in determining the ownership of a Subsidiary.
Notwithstanding the foregoing, an Unrestricted Subsidiary shall not be deemed a
Subsidiary of the Company under this Indenture, other than for purposes of the
definition of an Unrestricted Subsidiary, unless the Company shall have
designated an Unrestricted Subsidiary as a "Subsidiary" by written notice to
the Trustee under this Indenture, accompanied by an Officers' Certificate as to
compliance with the Indenture; provided, however, that the Company shall not be
permitted to designate any Unrestricted Subsidiary as a Subsidiary unless,
after giving pro forma effect to such designation, (i) the Company would be
permitted to incur $1.00 of additional Indebtedness under the proviso in
Section 4.08 (assuming a market rate of interest with respect to such
Indebtedness) and (ii) all Indebtedness and Liens of such Unrestricted
Subsidiary would be permitted to be incurred by a Subsidiary of the Company
under this Indenture. A designation of an Unrestricted Subsidiary as a
Subsidiary may not thereafter be rescinded.
"Surviving Entity" shall have the meaning set forth in Section 5.01.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Section Section
77aaa-77bbbb) as in effect on the Issue Date.
"Tangible Assets" means, at any date, the gross book value, as shown by
the accounting books and records of the Company and its Subsidiaries, of all
the property both real and personal of the Company and its Subsidiaries, less
(i) the net book value of all licenses, patents, patent applications,
copyrights, trademarks, trade names, goodwill, noncompete agreements or
organizational expenses and other like intangibles, (ii) unamortized debt
discount expense, (iii) all reserves for depreciation, obsolescence, depletion
and amortization of properties and (iv) all other proper reserves which in
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accordance with GAAP should be provided in connection with the business
conducted by the Company.
"Trust Officer" means any officer in the Corporate Trust Department of the
Trustee or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above-designated officers and also
means, with respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of his knowledge of and familiarity
with the particular subject.
"Trustee" means the party named as such in this Indenture until a
successor replaces such party (or any previous successor) in accordance with
the provisions of this Indenture, and thereafter means such successor.
"Unrestricted Subsidiary" means a Subsidiary of the Company other than a
Guarantor (i) none of whose properties or assets were owned by the Company or
any of its Subsidiaries prior to the Issue Date, other than any such assets as
are transferred to such Unrestricted Subsidiary in accordance with Section 4.09
hereof, (ii) whose properties and assets, to the extent that they secure
Indebtedness, secure only Non-Recourse Indebtedness and (iii) which has no
Indebtedness other than Non-Recourse Indebtedness. As used above,
"Non-Recourse Indebtedness" means Indebtedness as to which (i) neither the
Company nor any of its Subsidiaries (other than the relevant Unrestricted
Subsidiary or another Unrestricted Subsidiary) (1) provides credit support
(including any undertaking, agreement or instrument which would constitute
Indebtedness), (2) guarantees or is otherwise directly or indirectly liable or
(3) constitutes the lender (in each case, other than pursuant to and in
compliance with Section 4.09) and (ii) no default with respect to such
Indebtedness (including any rights which the holders thereof may have to take
enforcement action against the relevant Unrestricted Subsidiary or its assets)
would permit (upon notice, lapse of time or both) any holder of any other
Indebtedness of the Company or its Subsidiaries (other than Unrestricted
Subsidiaries) to declare a default on such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its stated maturity.
"U.S. Global Security" shall have the meaning set forth in Section 2.01.
"U.S. Government Obligations" shall have the meaning set forth in Section
8.02.
"U.S. Physical Securities" shall have the meaning set forth in Section
2.01.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any person (irrespective of
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whether or not, at the time, Capital Stock of any other class or classes shall
have, or might have, voting power by reason of the happening of any
contingency).
"Wholly Owned Subsidiary" means any Subsidiary of the Company of which
100% of the outstanding Capital Stock is owned by the Company or by one or more
Wholly Owned Subsidiaries of the Company or by the Company and one or more
Wholly Owned Subsidiaries of the Company. For purposes of this definition, any
directors' qualifying shares or investments by foreign nationals mandated by
applicable law shall be disregarded in determining the ownership of a
Subsidiary.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act. Upon
the issuance of the Exchange Securities, if any, or the effectiveness of the
Shelf Registration Statement (as defined herein), this Indenture will be
subject to, and shall be governed by, the provisions of the TIA that are
required or deemed to be part of and to govern indentures qualified under the
TIA. 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:
"Commission" means the SEC;
"indenture securities" means the Securities and any Guarantees;
"indenture security holder" means a Securityholder or Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company, any Guarantor or
any other obligor on the Securities or the Guarantees.
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. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) words in the singular include the plural, and words in the
plural include the singular;
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(c) "or" is not exclusive;
(d) provisions apply to successive events and transactions;
(e) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(f) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(g) all references to $ or dollars shall refer to the lawful
currency of the United States of America.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Forms and Dating. The Securities and the Trustee's
certificate of authentication thereon shall be in substantially the form of
Exhibit A hereto, with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any applicable
law or with the rules of any securities exchange or as may, consistently
herewith, be determined by the Officers executing such Securities, as evidenced
by their execution thereof. The Securities shall be issuable only in
registered form without coupons and only in denominations of $1,000 and
integral multiples thereof.
The definitive Securities shall be printed, typewritten, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange on which the
Securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities. Each Security
shall be dated the date of its authentication.
Initial Securities offered and sold in reliance on Rule 144A shall be
issued initially in the form of one or more permanent global Securities
substantially in the form set forth in Exhibit A hereto (the "U.S. Global
Security") deposited with, or on behalf of, the Depositary or with the Trustee,
as custodian for the Depositary, duly executed by the Company and authenticated
by the Trustee as hereinafter provided. The aggregate principal amount of the
U.S. Global Security may from time to time be increased or decreased by
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adjustments made on the records of the Depositary or its nominee, or of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
Initial Securities offered and sold in offshore transactions in reliance
on Regulation S shall be issued in the form of a single permanent global
Security in registered form substantially in the form set forth in Exhibit A
(the "Offshore Global Security") deposited with the Trustee, as custodian for
the Depositary, duly executed by the Company and authenticated by the Trustee
as hereinafter provided. The aggregate principal amount of the Offshore Global
Securities may from time to time be increased or decreased by adjustments made
in the records of the Depository or its nominee, or of the Trustee, as
custodian for the Depositary or its nominee, as hereinafter provided.
Initial Securities offered and sold other than as described in the
preceding paragraph shall be issued in the form of permanent certificated
Securities in registered form in substantially the form set forth in Exhibit A
hereto (the "U.S. Physical Securities"). Securities issued pursuant to Section
2.09 in exchange for interests in the U.S. Global Security or the Offshore
Global Security shall be in the form of U.S. Physical Securities or in the form
of permanent certificated Securities in registered form substantially in the
form set forth in Exhibit A (the "Offshore Physical Securities"), respectively.
The Offshore Physical Securities and U.S. Physical Securities are
sometimes collectively herein referred to as the "Physical Securities." The
U.S. Global Security and the Offshore Global Security are sometimes referred to
as the "Global Securities."
The terms and provisions contained in the form of the Securities, annexed
hereto as Exhibit A shall constitute, and are hereby expressly made, a part of
this Indenture and, to the extent applicable, the Company and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
SECTION 2.02. Restrictive Legends. Unless and until (i) an Initial
Security is sold under an effective Registration Statement or (ii) an Initial
Security is exchanged for an Exchange Security in connection with an effective
Registration Statement, in each case as provided for in the Registration Rights
Agreement, then (A) the U.S. Global Security and each U.S. Physical Security
shall bear the legend set forth below (the "Private Placement Legend") on the
face thereof and (B) the Offshore Physical Securities and the Offshore Global
Security shall bear the Private Placement Legend on the face thereof until at
least 41 days after the Issue Date and receipt by the Company and the Trustee
of a certificate substantially in the form set forth in Section 2.11(c):
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR
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(B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT) (AN "ACCREDITED INVESTOR") OR (C) IT
IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION,
(2) AGREES THAT IT WILL NOT WITHIN THREE YEARS AFTER THE ORIGINAL ISSUANCE OF
THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE
ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C)
INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D)
OUTSIDE THE UNITED STATES TO PERSONS OTHER THAN U.S. PERSONS IN OFFSHORE
TRANSACTIONS MEETING THE REQUIREMENTS OF RULE 904 UNDER REGULATION S UNDER THE
SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.
Each Global Security, whether or not an Initial Security, shall also bear
the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTIONS 2.09 AND 2.10 OF THE INDENTURE.
SECTION 2.03. Execution and Authentication. Two Officers shall execute
the Securities on behalf of the Company by either manual or facsimile
signature. The Company's seal shall be impressed, affixed, imprinted or
reproduced on the Securities.
If an Officer whose signature is on a Security no longer holds that office
at the time the Trustee authenticates the Security or at any time thereafter,
the Security shall be valid nevertheless.
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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.
The Trustee shall authenticate Securities for original issue in an
aggregate principal amount not to exceed $125,000,000 upon receipt of an
Officers' Certificate signed by two Officers of the Company directing the
Trustee to authenticate the Securities and certifying that all conditions
precedent to the issuance of the Securities contained herein have been complied
with. The aggregate principal amount of Securities outstanding at any time may
not exceed $125,000,000, except as provided in Section 2.08.
With the prior written approval of the Company, the Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Securities.
Unless limited by the terms of such 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. Such authenticating agent shall have the same rights as the Trustee in
any dealings hereunder with the Company or with any of the Company's Affiliates.
SECTION 2.04. Registrar and Paying Agent. The Company shall maintain an
office or agency where Securities may be presented for registration of transfer
or for exchange (the "Registrar") and an office or agency where Securities may
be presented for payment of principal, premium, if any, and interest (the
"Paying Agent"). The Registrar shall keep a register of the Securities and of
their transfer and exchange. The Company may have one or more co-Registrars
and one or more additional paying agents. The term "Paying Agent" includes any
additional paying agent. Except as otherwise expressly provided in this
Indenture, the Company or any Affiliate thereof may act as Paying Agent.
The Company shall enter into an appropriate agency agreement with any
Registrar or Paying 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 Registrar or Paying Agent.
The Company shall notify the Trustee of the name and address of any such
Registrar or Paying Agent. If the Company fails to maintain a Registrar,
Paying Agent or agent for service of notices and demands, or fails to give the
foregoing notice, the Trustee shall act as such and shall be entitled to
appropriate compensation in accordance with Section 7.08.
The Company initially appoints the Trustee as Registrar, Paying Agent and
agent for service of notices and demands in connection with the Securities.
SECTION 2.05. Paying Agent to Hold Money in Trust. Each Paying Agent
shall hold in trust for the benefit of Holders or the Trustee all money held by
the Paying
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Agent for the payment of principal of, or interest on, the Securities (whether
such money has been distributed to it by the Company or any other obligor on the
Securities), and the Company (or any other obligor on the Securities) and the
Paying Agent shall notify the Trustee of any default by the Company (or any
other obligor on the Securities) in making any such payment. If the Company or
an Affiliate of the Company acts as Paying Agent, it shall segregate the money
and hold it as a separate trust fund. The Company at any time may require a
Paying Agent to distribute all money held by it to the Trustee and account for
any funds disbursed and the Trustee may at any time during the continuance of
any Payment Default with respect to the Securities, upon written request to a
Paying Agent, require such Paying Agent to pay all money held by it to the
Trustee and to account for any funds distributed. Upon doing so, the Paying
Agent (other than an obligor on the Securities or any Guarantees) shall have no
further liability for the money so paid over to the Trustee.
SECTION 2.06. Securityholder 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 and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall
furnish to the Trustee at least ten Business Days before each Interest Payment
Date and at such other times as the Trustee may request in writing a list in
such form and as of such date as the Trustee may reasonably require of the
names and addresses of Holders, which list may be conclusively relied upon by
the Trustee.
SECTION 2.07. Transfer and Exchange. When Securities are presented to
the Registrar or a co-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, the Registrar or co-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 or co-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 at the Registrar's or co-Registrar's request. No
service charge shall be made for any transfer, exchange or redemption, but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charge payable upon exchanges or
transfers pursuant to Section 2.08, 2.14, 3.06, 4.11, 4.12 or 9.05). The
Registrar or co-Registrar shall not be required to register the transfer of 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, except the
unredeemed portion of any Security being redeemed in part.
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Any Holder of the Global Security shall, by acceptance of such Global
Security, agree that transfers of beneficial interests in such Global Security
may be effected only through a book-entry system maintained by the Holder of
such Global Security (or its agent), and that ownership of a beneficial
interest in the Security shall be required to be reflected in a book entry.
SECTION 2.08. Replacement Securities. If 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 are met. If required by the Trustee or the Company, 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 or any
Paying Agent or Registrar from any loss which any of them may suffer if a
Security is replaced. The Company may charge such Holder for its reasonable,
out-of-pocket expenses in replacing a Security, including reasonable fees and
expenses of counsel. Every replacement Security is an additional obligation of
the Company.
SECTION 2.09. Book-Entry Provisions for Global Security. (a) The U.S.
Global Security and the Offshore Global Security initially shall (i) be
registered in the name of the Depositary for such Global Security or the
nominee of such Depositary, (ii) be deposited with, or on behalf of, the
Depositary or with the Trustee, as custodian for such Depositary, and (iii)
bear legends as set forth in Section 2.02. Members of, or participants in, the
Depositary ("Agent Members") 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 such 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 shall impair, as between the Depositary and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a Holder of any Security.
(b) Transfers of the Global Security shall be limited to transfers of such
Global Security in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in the Global
Security may be transferred in accordance with the rules and procedures of the
Depositary and the provisions of Section 2.10. In addition, U.S. Physical
Securities and Offshore Physical Securities shall be issued to all beneficial
owners in exchange for their beneficial interests in the U.S. Global Security
or the Offshore Global Security, respectively if (i) the Depositary notifies
the Company that it is unwilling or unable to continue as Depositary for the
U.S. Global Security or the Offshore Global Security and a successor depositary
is not appointed by the
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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.
(c) In connection with any transfer of a portion of the beneficial
interest in the U.S. Global Security pursuant to Section 2.09(b) to beneficial
owners who are required to hold U.S. Physical Securities, the Registrar shall
reflect on its books and records the date and a decrease in the principal
amount of the U.S. Global Security in an amount equal to the principal amount
of the beneficial interest in the U.S. Global Security to be transferred, and
the Company shall execute, and the Trustee shall authenticate and deliver, one
or more U.S. Physical Securities of like tenor and amount.
(d) In connection with the transfer of the entire U.S. Global Security or
Offshore Global Security to beneficial owners pursuant to Section 2.09(b), the
U.S. Global Security or Offshore Global Security, as the case may be, shall be
deemed to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depositary in exchange for its beneficial interest in
the U.S. Global Security or Offshore Global Security, as the case may be, an
equal aggregate principal amount of U.S. Physical Securities or Offshore
Physical Securities, as the case may be, of authorized denominations.
(e) Any U.S. Physical Security delivered in exchange for an interest in
the Global Security pursuant to subsection (c) or subsection (d) of this
Section shall, except as otherwise provided by paragraph (d) of Section 2.10,
bear the applicable legend regarding transfer restrictions applicable to the
U.S. Physical Securities set forth in Section 2.02.
(f) The Holder of the Global Security may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Securities.
(g) QIBs that are beneficial owners of interests in a Global Security may
receive Physical Securities (which shall bear the Private Placement Legend if
required by Section 2.02) in accordance with the procedures of the Depositary.
In connection with the execution, authentication and delivery of such Physical
Securities, the Registrar shall reflect on its books and records a decrease in
the principal amount of the relevant Global Security equal to the principal
amount of such Physical Securities and the Company shall execute and the
Trustee shall authenticate and deliver one or more Physical Securities having
an equal aggregate principal amount.
SECTION 2.10. Special Transfer Provisions. Unless and until (i) an
Initial Security is sold under an effective Registration Statement, or (ii) an
Initial Security is
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exchanged for an Exchange Security in connection with the Exchange Offer, in
each case pursuant to the Registration Rights Agreement, the following
provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of an Initial Security to any institutional "accredited
investor" (as defined in subparagraph (a)(1), (2), (3) or (7) of Rule 501 under
the Securities Act) that is not a QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Initial
Security, whether or not such Initial Security bears the Private
Placement Legend, if (x) the requested transfer is at least three years
after the original issue date of the Initial Securities or (y) the
proposed transferee has delivered to the Registrar a certificate
substantially in the form set forth in Section 2.11(a); and
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Security, upon receipt by the
Registrar of (x) the certificate and opinion, if any, required by
paragraph (i) and (y) instructions given in accordance with the
Depositary's and the Registrar's procedures therefor, the Registrar shall
reflect on its books and records the date and a decrease in the principal
amount of the U.S. Global Security in an amount equal to the principal
amount of the beneficial interest in the U.S. Global Security to be
transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more U.S. Physical Securities of like
tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with respect
to the registration of any proposed transfer of a U.S. Physical Security or an
interest in the U.S. Global Security to a QIB (excluding Non-U.S. Persons):
(i) If the Security to be transferred consists of (A) U.S. Physical
Securities, the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided for
on the form of Initial Security stating, or has otherwise advised the
Company and the Registrar in writing, that the sale has been made in
compliance with the provisions of Rule 144A to a transferee who has
signed the certification provided for on the form of Security stating, or
has otherwise advised the Company and the Registrar in writing, that it
is purchasing the Security for its own account or an account with respect
to which it exercises sole investment discretion and that it and any such
account is a QIB within the meaning of Rule 144A, and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Company as it has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from
registration provided by
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Rule 144A or (B) an interest in the U.S. Global Security, the transfer of
such interest may be effected only through the book entry system
maintained by the Depositary.
(ii) If the proposed transferor is an Agent Member, and the Initial
Security to be transferred consists of U.S. Physical Securities, upon
receipt by the Registrar of the documents referred to in clause (i) and
instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount at maturity of
the U.S. Global Security in an amount equal to the principal amount at
maturity of the U.S. Physical Securities to be transferred, and the
Trustee shall cancel the Physical Security so transferred.
(c) Transfers to Non-U.S. Persons. The following provisions shall apply
with respect to any registration of transfer of an Initial Security to a
Non-U.S. Person:
(i) The Registrar shall register any proposed transfer to any
Non-U.S. Person if the Initial Security to be transferred is a U.S.
Physical Security or an interest in the U.S. Global Security only upon
receipt of a certificate substantially in the form set forth in Section
2.11(c) from the proposed transferor.
(ii) (A) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Security, upon receipt by the
Registrar of (x) the documents required by paragraph (i) and (y)
instructions in accordance with the Depositary's and the Registrar's
procedures therefor, the Registrar shall reflect on its books and records
the date and a decrease in the principal amount at maturity of the U.S.
Global Security in an amount equal to the principal amount of the
beneficial interest in the U.S. Global Security to be transferred, and
(B) if the proposed transferee is an Agent Member, upon receipt by the
Registrar of instructions given in accordance with the Depositary's and
the Registrar's procedures therefor, the Registrar shall reflect on its
books and records the date and an increase in the principal amount of the
Offshore Global Security in an amount equal to the principal amount at
maturity of the U.S. Physical Securities or the U.S. Global Security, as
the case may be, to be transferred, and the Trustee shall cancel the
Physical Security, if any, so transferred or decrease the amount of the
U.S. Global Security.
(d) Private Placement Legend. Upon the registration of 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 registration of transfer, exchange or replacement of
Securities bearing the Private Placement Legend, the Registrar shall deliver
only Securities that bear the Private Placement Legend unless the condition of
paragraph (a)(i)(x) of this Section 2.10 exist or (ii) there is delivered to
the Registrar an Opinion of Counsel reasonably satisfactory to the Company and
the Trustee to
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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.
(e) 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 Registrar shall retain until such time as no Securities remain
Outstanding copies of all letters, notices and other written communications
received pursuant to Section 2.09 or this Section 2.10. 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
written notice to the Registrar.
SECTION 2.11. Form of Certificates to Be Delivered.
(a) Form of Certificate to be Delivered in Connection with Transfers to
Non-QIB Institutional Accredited Investors.
Interface, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
We are delivering this letter in connection with our proposed purchase of
9 1/2% Senior Subordinated Notes due 2005 (the "Notes") of Interface, Inc., a
Georgia corporation (the "Company"). We hereby confirm that:
(i) we are an institutional "accredited investor" within the meaning
of Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended (the "Securities Act") (an "Accredited Investor");
(ii) any purchase of Notes by us will be for our own account or for
the account of one or more other Accredited Investors as to which we
exercise sole investment discretion;
(iii) we have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of
purchasing Notes and we and any accounts for which we are acting are able
to bear the economic risks of and an entire loss of our or their
investment in the Notes;
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(iv) we are not acquiring Notes with a view to any distribution
thereof in a transaction that would violate the Securities Act or the
securities laws of any state of the United States or any other applicable
jurisdiction; provided that the disposition of our property and the
property of any accounts for which we are acting as fiduciary shall remain
at all times within our and their control; and
(v) we acknowledge that the Notes have not been registered under
the Securities Act and that none of the Notes may be offered or sold
within the United States or to, or for the benefit of, U.S. persons except
as set forth below.
We agree, on our own behalf and on behalf of each account for which we
acquire any Notes, that, for a period of three years after the original
issuance of the Notes, such Notes may be offered, resold, pledged or otherwise
transferred only (i) to the Company or any of its subsidiaries, (ii) inside the
United States to a person whom we reasonably believe to be a qualified
institutional buyer (as defined in Rule 144A under the Securities Act) in
compliance with Rule 144A under the Securities Act, (iii) inside the United
States to a person we reasonably believe to be an Accredited Investor that,
prior to such transfer, furnished to the trustee under the Indenture relating
to the Notes (the "Trustee") a signed letter containing certain representations
and agreements (a form of which can be obtained from the Trustee), (iv) outside
the United States to persons other than U.S. persons in offshore transactions
meeting the requirements of Rule 904 under Regulation S under the Securities
Act, (v) pursuant to the exemption from registration provided by Rule 144 under
the Securities Act (if available), or (vi) pursuant to an effective
registration statement under the Securities Act, and, in each case, in
accordance with any applicable securities laws of any state of the United
States or any other applicable jurisdiction.
We understand that the Trustee will not be required to accept for
registration of transfer any Notes acquired by us, except upon presentation of
evidence satisfactory to the Company and the Trustee that the foregoing
restrictions on transfer have been complied with. We further understand that
the Notes purchased by us will be in the form of definitive physical
certificates and that such certificates will bear a legend reflecting the
substance of this paragraph. We further agree to provide to any person
acquiring any of the Notes from us a notice advising such person that resales
of the Notes are restricted as stated herein and that certificates representing
the Notes will bear a legend to that effect.
We acknowledge that you, the Company, the Trustee and others will rely
upon our acknowledgments, representations and agreements set forth herein, and
we agree to notify you promptly in writing if any of our acknowledgments,
representations or agreements herein cease to be accurate and complete.
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We represent to you that we have full power to make the foregoing
acknowledgments, representations and agreements on our own behalf and on behalf
of any investor account for which we are acting as a fiduciary or agent.
As used herein, the terms "offshore transaction," "United States" and
"U.S. person" have the respective meanings given to them in Regulation S under
the Securities Act.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
_____________________________
(Name of Purchaser)
By: _________________________
Name:
Title:
Address:
(b) Form of Certificate to Be Delivered in Connection with Transfers
Pursuant to Regulation S.
[date]
First Union National Bank of Georgia
Suite 1100, First Union Plaza
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Corporate Trust Department, as Trustee
Re: Interface, Inc. (the "Company") 9 1/2% Senior
Subordinated Notes due 2005 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $________ aggregate principal
amount of the Notes, we confirm that such sale has been effected pursuant to
and in accordance with Regulation S under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the United
States or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market
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and neither we nor any person acting on our behalf knows that the
transaction has been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate
have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:_______________________
Authorized Signature
(c) Form of Certificate to Be Delivered upon Termination of Restricted
Period.
[On or after January 1, 1996]
First Union National Bank of Georgia
Suite 1100, First Union Plaza
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Corporate Trust Department, as Trustee
Re: Interface, Inc. (the "Company") 9 1/2% Senior
Subordinated Notes due 2005 (the "Notes")
Ladies and Gentlemen:
This letter relates to $_________________ principal amount of Notes
represented by the Offshore Global Note (the "Note"). Pursuant to Section 201
of the Indenture dated as of November 15, 1995 relating to the Notes (the
"Indenture"), we hereby certify that (1) we are the beneficial owner of such
principal amount of Notes represented by the Note and (2) we are a person
outside the United States to whom the Notes could be transferred in accordance
with Rule 904 of Regulation S promulgated under the Securities Act of 1933, as
amended. Accordingly, you are hereby requested to issue a certificated Note
representing the
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undersigned's interest in the principal amount of Notes represented by the Note,
all in the manner provided by the Indenture.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate
have the meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By: ______________________________
Authorized Signature
SECTION 2.12. Outstanding Securities. Securities outstanding at any time
are all the Securities that have been authenticated by the Trustee except those
cancelled by it, those delivered to it for cancellation and those described in
this Section as not outstanding. 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 2.08 (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 2.08.
If on a Redemption Date or a Maturity Date the Paying Agent (other than
the Company or an Affiliate of the Company) holds cash or U.S. Government
Obligations sufficient to pay all of the principal and interest due on the
Securities payable on that date, and is not prohibited from paying such cash or
U.S. Government Obligations to the Holders of such Securities pursuant to the
terms of this Indenture, then on and after that date such Securities cease to
be outstanding and interest on them shall cease to accrue.
SECTION 2.13. 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 or any of its 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 the Trustee knows or has reason to know are so owned shall
be disregarded.
SECTION 2.14. Temporary Securities. Until definitive Securities are
prepared and ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities. Temporary Securities shall be substantially
in the form of definitive
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42
Securities but may have variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate definitive Securities in exchange for temporary
Securities. Until such exchange, temporary Securities shall be entitled to the
same rights, benefits and privileges as definitive Securities.
SECTION 2.15. 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 (other than the Company or an Affiliate of the
Company), and no one else, shall promptly cancel and, at the written direction
of the Company, shall dispose of all Securities surrendered for transfer,
exchange, payment or cancellation. Subject to Section 2.08, the Company may
not issue new Securities to replace Securities that it has paid or delivered to
the Trustee for cancellation. If the Company 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 2.15.
SECTION 2.16. Defaulted Interest. If the Company defaults on a payment
of interest on the Securities, it shall pay the defaulted interest, plus (to
the extent permitted by law) any interest payable on the defaulted interest, in
accordance with the terms hereof, to the persons who are Holders on a
subsequent special record date, which date shall be at least five Business Days
prior to the payment date. The Company shall fix such special record date and
payment date in a manner satisfactory to the Trustee. At least 15 days before
such special record date, the Company shall mail to each Holder a notice that
states the special record date, the payment date and the amount of defaulted
interest, and interest payable on such defaulted interest, if any, to be paid.
SECTION 2.17. CUSIP Number. The Company in issuing the Securities may
use a "CUSIP" number (if then generally in use), and if so, the Trustee may use
the CUSIP numbers 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 will promptly notify the Trustee of any change in the CUSIP number.
SECTION 2.18. Deposit of Moneys. On or before each Interest Payment Date
and Maturity Date, the Company shall deposit with the Trustee or Paying Agent
in immediately available funds money sufficient to make cash payments, if any,
due on such Interest Payment Date or Maturity Date, as the case may be, in a
timely manner which
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permits the Paying Agent to remit payment to the Holders on such Interest
Payment Date or Maturity Date, as the case may be.
ARTICLE THREE
REDEMPTION OF SECURITIES
SECTION 3.01. Notices to the Trustee. If the Company elects to redeem
Securities pursuant to Paragraph 3(a) or 3(b) of the Securities, it shall
notify the Trustee of the Redemption Date and principal amount of Securities to
be redeemed.
The Company shall notify the Trustee by an Officers' Certificate, stating
that such redemption will comply with the provisions hereof and of the
Securities, of any redemption at least 45 days before the Redemption Date.
SECTION 3.02. Selection of Securities to Be Redeemed. If less than all
the Securities are to be redeemed, the particular Securities or portions
thereof to be redeemed shall be selected by the Trustee from the outstanding
Securities not previously called for redemption either (x) pro rata, by lot or
by such other method as the Trustee considers to be fair and appropriate or (y)
in such manner as complies with the requirements of the principal national
securities exchange, if any, on which the Securities being redeemed are listed.
The amounts to be redeemed shall be equal to $1,000 or any integral multiple
thereof.
The Trustee shall promptly notify the Company and the Registrar in writing
of the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to redemption of Securities shall relate, in the case
of any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
SECTION 3.03. Notice of Redemption. Notice of redemption shall be given
by first-class mail, postage prepaid, mailed not less than 30 nor more than 60
days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at the address of such Holder appearing in the Security register maintained by
the Registrar.
All notices of redemption shall identify the Securities to be redeemed and
shall state:
(a) the Redemption Date;
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(b) the Redemption Price and the amount of accrued interest, if any,
to be paid;
(c) that, unless the Company defaults in making the redemption
payment, interest on Securities or portions thereof called for redemption
ceases to accrue on and after the Redemption Date, and the only remaining
right of the Holders of such Securities is to receive payment of the
Redemption Price upon surrender to the Paying Agent of the Securities
redeemed;
(d) if any Security is to be redeemed in part, the portion of the
principal amount (equal to $1,000 or any integral multiple thereof) of such
Security to be redeemed and that on and after the Redemption Date, upon
surrender for cancellation of such original Security to the Paying Agent, a
new Security or Securities in the aggregate principal amount equal to the
unredeemed portion thereof will be issued without charge to the Holder;
(d) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price and the name and address of
the Paying Agent;
(e) the CUSIP number, if any, relating to such Securities, but no
representation is made as to the correctness or accuracy of any such CUSIP
numbers; and
(f) the paragraph of the Securities pursuant to which the Securities
are being redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's written request, by
the Trustee in the name and at the expense of the Company.
SECTION 3.04. Effect of Notice of Redemption. Once 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 called for redemption shall be paid at the Redemption
Price plus accrued interest to the Redemption Date, but interest installments
whose maturity is on or prior to such Redemption Date will be payable on the
relevant Interest Payment Dates to the Holders of record at the close of
business on the relevant record dates referred to in the Securities.
SECTION 3.05. Deposit of Redemption Price. On or prior to any Redemption
Date, the Company shall deposit with the Paying Agent an amount of money in
same day funds sufficient to pay the Redemption Price of, and accrued interest
on, all the Securities or portions thereof which are to be redeemed on that
date, other than Securities or portions
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thereof which are to be redeemed on that date, other than Securities or portions
Company to the Trustee for cancellation.
If the Company complies with the preceding paragraph, then, unless the
Company defaults in the payment of such Redemption Price, interest on the
Securities to be redeemed will cease to accrue on and after the applicable
Redemption Date, whether or not such Securities are presented for payment. If
any Security called for redemption shall not be so paid upon surrender thereof
for redemption, the principal, premium, if any, and, to the extent lawful,
accrued interest thereon shall, until paid, bear interest from the Redemption
Date at the rate provided in the Securities.
SECTION 3.06. Securities Redeemed or Purchased in Part. Upon surrender
to the Paying Agent of a Security which is to be redeemed in part, the Company
shall execute, any Guarantor shall Guarantee and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities (accompanied by a notation of Guarantee duly endorsed by
any Guarantor), of any authorized denomination as requested by such Holder in
aggregate principal amount equal to, and in exchange for, the unredeemed
portion of the principal of the Security so surrendered that is not redeemed.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities. The Company will pay, or cause to
be paid, the principal of and interest on the Securities on the dates and in
the manner provided in the Securities and this Indenture. 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 Subsidiary of the Company or any
Affiliate thereof) holds on that date money designated and set aside for and
sufficient to pay the installment in a timely manner and is not prohibited from
paying such money to the Holders of the Securities pursuant to the terms of
this Indenture.
The Company will pay interest on overdue principal at the rate and in the
manner provided in the Securities; it shall pay interest on overdue
installments of interest at the same rate and in the same manner, to the extent
lawful.
SECTION 4.02. Maintenance of Office or Agency. The Company will maintain
an office or agency where Securities may be surrendered for registration of
transfer or exchange or for presentation for payment and where notices and
demands to or upon the
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Company in respect of the Securities and this Indenture may be served. The
Company will 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 as set
forth in Section 11.02.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations. The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.
The Company hereby initially designates the office of the Trustee located
at the address set forth in Section 11.02 as such office of the Company in
accordance with this Section 4.02.
SECTION 4.03. Corporate Existence. Subject to Article Five, the Company
shall do or cause to be done all things necessary to and will cause each of its
Subsidiaries to, preserve and keep in full force and effect the corporate or
partnership existence and rights (charter and statutory), licenses and/or
franchises of the Company and each of its Subsidiaries; provided, however, that
the Company or any of its Subsidiaries shall not be required to preserve any
such existence, rights, licenses or franchises if the Board of Directors of the
Company shall reasonably determine that (x) the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries taken as a whole and (y) the loss thereof is not materially
adverse to either the Company and its Subsidiaries taken as a whole or to the
ability of the Company to otherwise satisfy its obligations hereunder.
SECTION 4.04. Payment of Taxes and Other Claims. The Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (a) all taxes, assessments and governmental charges levied or
imposed upon the Company or any of its Subsidiaries or upon the income, profits
or property of the Company or any of its Subsidiaries, and (b) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become
a Lien upon the property of the Company or any Subsidiary of the Company;
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 the
amount, applicability or validity of which is being contested in good faith by
appropriate proceedings and for which adequate provision has been made or where
the failure to effect such payment or discharge is not adverse in any material
respect to the Company.
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SECTION 4.05. Maintenance of Properties; Insurance; Books and Records;
Compliance with Law. (a) The Company shall, and shall cause each of its
Subsidiaries to, cause all properties and assets to be maintained and kept in
good condition, repair and working order (reasonable wear and tear excepted)
and supplied with all necessary equipment, and shall cause to be made all
necessary repairs, renewals, replacements, additions, betterments and
improvements thereto, as shall be reasonably necessary for the proper conduct
of its business; provided, however, that nothing in this Section 4.05(a) shall
prevent the Company or any of its Subsidiaries from discontinuing the operation
and maintenance of any of its properties or assets if such discontinuance is,
in the judgment of the Board of Directors of the Company or such Subsidiary,
desirable in the conduct of its business and if such discontinuance is not
materially adverse to either the Company and its Subsidiaries taken as a whole
or the ability of the Company to otherwise satisfy its obligations hereunder.
(b) The Company shall, and shall cause each of its Subsidiaries to,
maintain with financially sound and reputable insurers such insurance as may be
required by law (other than with respect to any environmental impairment
liability insurance not commercially available) and such other insurance to
such extent and against such hazards and liabilities, as is customarily
maintained by companies similarly situated (which may include self-insurance in
the same form as is customarily maintained by companies similarly situated).
(c) The Company shall, and shall cause each of its Subsidiaries to, keep
proper books of record and account, in which full and correct entries shall be
made of all business and financial transactions of the Company and each
Subsidiary of the Company and reflect on its financial statements adequate
accruals and appropriations to reserves, all in accordance with GAAP
consistently applied to the Company and its Subsidiaries taken as a whole.
(d) The Company shall and shall cause each of its Subsidiaries to comply
with all statutes, laws, ordinances, or government rules and regulations to
which it is subject, non-compliance with which would materially adversely
affect the business, earnings, properties, assets or condition (financial or
otherwise) of the Company and its Subsidiaries taken as a whole.
SECTION 4.06. Compliance Certificate. (a) The Company will deliver to
the Trustee within 60 days after the end of each of the Company's first three
fiscal quarters and within 120 days after the end of the Company's fiscal year
an Officers' Certificate stating whether or not the signers know of any Default
or Event of Default under this Indenture by the Company or an event which, with
notice or lapse of time or both, would constitute a default by the Company
under any Senior Indebtedness that occurred during such fiscal period. If they
do know of such a Default, Event of Default or default, the certificate shall
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describe any such Default, Event of Default or default and its status. The
first certificate to be delivered pursuant to this Section 4.06(a) shall be for
the first fiscal quarter of the Company beginning after the Issue Date. The
Company shall also deliver a certificate to the Trustee at least annually from
its principal executive, financial or accounting officer as to his or her
knowledge of the Company's compliance with all conditions and covenants under
this Indenture and the Company's Senior Indebtedness, such compliance to be
determined without regard to any period of grace or requirement of notice
provided herein or therein.
(b) The Company shall deliver to the Trustee within 120 days after the end
of each fiscal year a written statement by the Company's independent certified
public accountants stating (A) that their audit examination has included a
review of the terms of this Indenture, the Securities and the Credit Agreements
as they relate to accounting matters, and (B) whether, in connection with their
audit examination, any Default or Event of Default under this Indenture or an
event which, with notice or lapse of time or both, would constitute a default
under any Senior Indebtedness has come to their attention and, if such a
Default, Event of Default or a default under any Senior Indebtedness has come
to their attention, specifying the nature and period of existence thereof;
provided, however, that, without any restriction as to the scope of the audit
examination, such independent certified public accountants shall not be liable
by reason of any failure to obtain knowledge of any such Default, Event of
Default or a default under any Senior Indebtedness that would not be disclosed
in the course of an audit examination conducted in accordance with GAAP.
(c) The Company will deliver to the Trustee as soon as possible, and in
any event within 30 days after the Company becomes aware or should reasonably
have become aware of the occurrence of any Default, Event of Default or an
event which, with notice or lapse of time or both, would constitute a default
by the Company under any Senior Indebtedness, an Officers' Certificate
specifying such Default, Event of Default or default and what action the
Company is taking or proposes to take with respect thereto.
SECTION 4.07. SEC Reports. The Company shall file with the SEC the
annual reports, quarterly reports and the information, documents and other
reports required to be filed with the SEC pursuant to Sections 13 and 15 of the
Exchange Act, whether or not the Company has a class of securities registered
under the Exchange Act. In accordance with the provisions of TIA Section
314(a), the Company shall file with the Trustee and provide to each Holder,
within 15 days after it files them with the SEC (or if such filing is not
permitted under the Exchange Act, 15 days after the Company would have been
required to make such filing), copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section 13 or 15 of the
Exchange Act. The Company also shall comply with the other provisions of TIA
Section 314(a). In addition, the Company shall cause its annual reports to
stockholders and any quarterly or other financial reports furnished by it to
stockholders
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generally to be filed with the Trustee and mailed no later than the date such
materials are mailed or made available to the Company's stockholders, to the
Holders at their addresses as set forth in the register of securities maintained
by the Registrar.
SECTION 4.08. Limitation on Indebtedness. The Company will not, and will
not permit any of its Subsidiaries to, directly or indirectly, create, incur,
issue, assume, guarantee or in any manner become directly or indirectly liable,
contingently or otherwise with respect to, (collectively, to "incur") any
Indebtedness (including, without limitation, any Acquired Indebtedness) other
than Permitted Indebtedness; provided, however, that the Company or any of its
Subsidiaries will be permitted to incur Indebtedness (including, without
limitation, Acquired Indebtedness) if at the time of such incurrence, and after
giving pro forma effect thereto, the Consolidated Fixed Charge Coverage Ratio
of the Company is at least equal to 2.0 to 1.
SECTION 4.09. Limitation on Restricted Payments. The Company will not,
and will not permit any of its Subsidiaries to, directly or indirectly:
(a) declare or pay any dividend or make any other distribution or
payment on or in respect of Capital Stock of the Company or any of its
Subsidiaries or any payment made to the direct or indirect holders (in
their capacities as such) of Capital Stock of the Company or any of its
Subsidiaries (other than (x) dividends or distributions payable solely in
Capital Stock of the Company (other than Redeemable Capital Stock) or in
options, warrants or other rights to purchase Capital Stock of the Company
(other than Redeemable Capital Stock), (y) the declaration or payment of
dividends or other distributions to the extent declared or paid to the
Company or any Subsidiary of the Company and (z) the declaration or payment
of dividends or other distributions by any Subsidiary of the Company to all
holders of Common Stock of such Subsidiary on a pro rata basis),
(b) purchase, redeem, defease or otherwise acquire or retire for value
any Capital Stock of the Company or any of its Subsidiaries (other than (x)
any such Capital Stock owned by a Wholly Owned Subsidiary of the Company and
(y) the Company's Series A Cumulative Convertible Preferred Stock),
(c) make any principal payment on, or purchase, defease, repurchase,
redeem or otherwise acquire or retire for value, prior to any scheduled
maturity, scheduled repayment, scheduled sinking fund payment or other
Stated Maturity, any Subordinated Indebtedness or Pari Passu Indebtedness
(other than the Convertible Debentures or any other such Indebtedness owed
by the Company or a Wholly Owned Subsidiary of the Company), or
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(d) make any Investment (other than any Permitted Investment) in any
person
(such payments or Investments described in the preceding clauses (a), (b), (c)
and (d) are collectively referred to as "Restricted Payments"), unless, at the
time of and after giving effect to the proposed Restricted Payment (the amount
of any such Restricted Payment, if other than cash, shall be the Fair Market
Value on the date of such Restricted Payment of the asset(s) proposed to be
transferred by the Company or such Subsidiary, as the case may be, pursuant to
such Restricted Payment), (A) no Default or Event of Default shall have
occurred and be continuing, (B) immediately prior to and after giving effect to
such Restricted Payment, the Company would be able to incur $1.00 of additional
Indebtedness pursuant to the proviso in Section 4.08 (assuming a market rate
of interest with respect to such additional Indebtedness) and (C) the aggregate
amount of all Restricted Payments declared or made from and after the Issue
Date would not exceed the sum of (1) 50% of the aggregate Consolidated Net
Income of the Company accrued on a cumulative basis during the period beginning
on the first day of the fiscal quarter of the Company during which the Issue
Date occurs and ending on the last day of the fiscal quarter of the Company
immediately preceding the date of such proposed Restricted Payment, which
period shall be treated as a single accounting period (or, if such aggregate
cumulative Consolidated Net Income of the Company for such period shall be a
deficit, minus 100% of such deficit) plus (2) the aggregate net cash proceeds
and the Fair Market Value of any property other than cash received by the
Company either (x) as capital contributions to the Company after the Issue Date
from any person (other than a Subsidiary of the Company) or (y) from the
issuance or sale of Capital Stock (excluding Redeemable Capital Stock, but
including Capital Stock issued upon the conversion of convertible Indebtedness
(other than the first $50,000,000 of proceeds attributable to the conversion of
the Convertible Debentures) or from the exercise of options, warrants or rights
to purchase Capital Stock (other than Redeemable Capital Stock)) of the Company
to any person (other than to a Subsidiary of the Company) after the Issue Date
plus (3) in the case of the disposition or repayment of any Investment
constituting a Restricted Payment made after the Issue Date (excluding any
Investment described in clause (v) of the following paragraph), an amount equal
to the lesser of the return of capital with respect to such Investment and the
cost of such Investment, in either case, less the cost of the disposition of
such Investment plus (4) $30,000,000. For purposes of the preceding clause
(C)(2), the value of the aggregate net proceeds received by the Company upon the
issuance of Capital Stock upon the conversion of convertible Indebtedness or
upon the exercise of options, warrants or rights will be the net cash proceeds
received upon the issuance of such Indebtedness, options, warrants or rights
plus the incremental cash amount received by the Company upon the conversion or
exercise thereof.
None of the foregoing provisions will prohibit (i) the payment of any
dividend within 60 days after the date of its declaration, if at the date of
declaration such payment would be permitted by the foregoing paragraph; (ii) so
long as no Default or Event of
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Default shall have occurred and be continuing, the redemption, repurchase or
other acquisition or retirement of any shares of any class of Capital Stock of
the Company or any Subsidiary of the Company in exchange for, or out of the net
cash proceeds of, a substantially concurrent (x) capital contribution to the
Company from any person (other than a Subsidiary of the Company) or (y) issue
and sale of other shares of Capital Stock (other than Redeemable Capital Stock)
of the Company to any person (other than to a Subsidiary of the Company);
provided, however, that the amount of any such net cash proceeds that are
utilized for any such redemption, repurchase or other acquisition or retirement
are excluded from clause (C)(2) of the preceding paragraph; (iii) so long as no
Default or Event of Default shall have occurred and be continuing, any
redemption, repurchase or other acquisition or retirement of Subordinated
Indebtedness by exchange for, or out of the net cash proceeds of, a
substantially concurrent (x) capital contribution to the Company from any person
(other than a Subsidiary of the Company) or (y) issue and sale of (1) Capital
Stock (other than Redeemable Capital Stock ) of the Company to any person (other
than to a Subsidiary of the Company); provided, however, that the amount of any
such net cash proceeds that are utilized for any such redemption, repurchase or
other acquisition or retirement are excluded from clause (C)(2) of the preceding
paragraph; or (2) Indebtedness of the Company issued to any person (other than
to a Subsidiary of the Company) so long as such Indebtedness is Subordinated
Indebtedness which (x) has no Stated Maturity earlier than the 91st day after
the final maturity date of the Indebtedness refinanced, (y) has an Average Life
to Stated Maturity equal to or greater than the remaining Average Life to Stated
Maturity of the Indebtedness refinanced and (z) is subordinated to the
Securities in the same manner and at least to the same extent as the
Subordinated Indebtedness so purchased, exchanged, redeemed, acquired or
retired; (iv) so long as no Default or Event of Default shall have occurred and
be continuing, any redemption, repurchase or other acquisition or retirement of
Pari Passu Indebtedness by exchange for, or out of the net cash proceeds of, a
substantially concurrent (x) capital contribution to the Company from any person
(other than a Subsidiary of the Company) or (y) issue and sale of (1) Capital
Stock (other than Redeemable Capital Stock) of the Company to any person (other
than to a Subsidiary of the Company); provided, however, that the amount of any
such net cash proceeds that are utilized for any such redemption, repurchase or
other acquisition or retirement is excluded from clause (C)(2) of the preceding
paragraph; or (2) Indebtedness of the Company issued to any person (other than a
Subsidiary of the Company) so long as such Indebtedness is Subordinated
Indebtedness or Pari Passu Indebtedness which (x) has no Stated Maturity earlier
than the 91st day after the final maturity date of the Indebtedness Refinanced
and (y) has an Average Life to Stated Maturity equal to or greater than the
remaining Average Life to Stated Maturity of the Indebtedness Refinanced; (v)
Investments constituting Restricted Payments made as a result of the receipt of
non-cash consideration from any Asset Sale made pursuant to and in compliance
with Section 4.12; and (vi) so long as no Default or Event of Default has
occurred and is continuing, repurchases by the Company of Common Stock of the
Company from employees of the Company or any of its Subsidiaries or their
authorized representatives upon the death, disability or termination of
employment of such employees, in an aggregate
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amount not exceeding $1,000,000 in any calendar year. In computing the amount
of Restricted Payments previously made for purposes of clause (C) of the
preceding paragraph, Restricted Payments made under the preceding clauses (v)
and (vi) shall be included and clauses (i), (ii), (iii) and (iv) shall not be so
included.
SECTION 4.10. Limitation on Liens. The Company will not, and will not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Liens of any kind against or upon any of its property or assets, or any
proceeds therefrom, unless (x) in the case of Liens securing Subordinated
Indebtedness, the Securities are secured by a Lien on such property, assets or
proceeds that is senior in priority to such Liens and (y) in all other cases,
the Securities are equally and ratably secured, except for (a) Liens existing
as of the Issue Date; (b) Liens securing the Securities or any Guarantee; (c)
Liens on assets of the Company and its Subsidiaries securing Indebtedness under
the Credit Agreements (including guarantees by any Subsidiary in respect of
such Indebtedness); (d) Liens on assets of the Company securing Senior
Indebtedness and Liens on assets of a Guarantor securing Guarantor Senior
Indebtedness; (e) Liens in favor of the Company; (f) Liens securing
Indebtedness which is incurred to refinance Indebtedness which has been secured
by a Lien permitted under this Indenture and which has been incurred in
accordance with the provisions of this Indenture; provided, however, that such
Liens do not extend to or cover any property or assets of the Company or any of
its Subsidiaries not securing the Indebtedness so refinanced; (g) Liens on
Indebtedness of a Subsidiary of the Company owed to and held by the Company,
which Indebtedness (x) represents advances by the Company of proceeds of
borrowings by the Company under the Credit Agreements and (y) is incurred in
accordance with the provisions of this Indenture; and (h) Permitted Liens.
SECTION 4.11. Change of Control. Upon the occurrence of a Change of
Control (the date of such occurrence, the "Change of Control Date"), the
Company shall make an offer to purchase (the "Change of Control Offer") on a
Business Day (the "Change of Control Purchase Date") not more than 45 nor less
than 30 days following the mailing of the notice described below to holders of
the Securities, all Securities then outstanding at a purchase price equal to
101% of the principal amount thereof plus accrued and unpaid interest, if any,
to the Change of Control Purchase Date.
Within 30 days following a Change of Control and prior to the mailing of
the notice to the holders of the Securities provided for in the next paragraph,
the Company covenants to either (i) repay in full all Indebtedness under the
Credit Agreements and terminate the commitments of the lenders thereunder, or
(ii) obtain the requisite consent under the Credit Agreements to permit the
repurchase of the Securities as provided herein. The Company shall first
comply with the provisions of this paragraph before it shall be required to
repurchase the Securities, but any failure to comply with its obligation to
offer to repurchase the Securities upon a Change of Control shall constitute an
Event of Default under this Indenture.
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Notice of a Change of Control Offer shall be mailed by the Company not
later than the 30th day after the Change of Control Date to the Holders of
Securities at their last registered addresses with a copy to the Trustee and
the Paying Agent. The Change of Control Offer shall remain open from the time
of mailing for at least 15 days and until 5:00 p.m., New York City time, on the
Change of Control Purchase Date. The notice, which shall govern the terms of
the Change of Control Offer, shall include such disclosures as are required by
law and shall state:
(a) that the Change of Control Offer is being made pursuant to this
Section 4.11 and that all Securities validly tendered into the Change of
Control Offer and not withdrawn will be accepted for payment;
(b) the purchase price (including the amount of accrued interest, if
any) for each Security, the Change of Control Purchase Date and the date on
which the Change of Control Offer expires;
(c) that any Security not tendered for payment will continue to accrue
interest in accordance with the terms thereof;
(d) that, unless the Company shall default in the payment of the
purchase price, any Security accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of Control
Purchase Date;
(e) that Holders electing to have Securities purchased pursuant to a
Change of Control Offer will be required to surrender their Securities to
the Paying Agent at the address specified in the notice prior to 5:00 p.m.,
New York City time, on the Change of Control Purchase Date and must
complete any form of letter of transmittal proposed by the Company and
reasonably acceptable to the Trustee and the Paying Agent;
(f) that Holders of Securities will be entitled to withdraw their
election if the Paying Agent receives, not later than 5:00 p.m., New York
City time, on the Change of Control Purchase Date, a tested telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of Securities the Holder delivered for purchase, the
Security certificate number (if any) and a statement that such Holder is
withdrawing its election to have such Securities purchased;
(g) that Holders whose Securities are purchased only in part will be
issued Securities equal in principal amount to the unpurchased portion of
the Securities surrendered;
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(h) the instructions that Holders must follow in order to tender their
Securities; and
(i) information concerning the business of the Company, the most
recent annual and quarterly reports of the Company filed with the SEC
pursuant to the Exchange Act (or, if the Company is not then permitted to
file any such reports with the SEC, the comparable reports prepared
pursuant to Section 4.07), a description of material developments in the
Company's business, information with respect to pro forma historical
financial information after giving effect to such Change of Control and
such other information concerning the circumstances and relevant facts
regarding such Change of Control Offer as would be material to a Holder of
Securities in connection with the decision of such Holder as to whether or
not it should tender Securities pursuant to the Change of Control Offer.
On the Change of Control Purchase Date, the Company shall (i) accept for
payment Securities or portions thereof validly tendered pursuant to the Change
of Control Offer and not withdrawn, (ii) deposit with the Paying Agent money,
in immediately available funds, sufficient to pay the purchase price of all
Securities or portions thereof so tendered and accepted and (iii) deliver to
the Trustee the Securities so accepted together with an Officers' Certificate
setting forth the Securities or portions thereof tendered to and accepted for
payment by the Company. The Paying Agent shall promptly mail or deliver to the
Holders of Securities so accepted payment in an amount equal to the purchase
price, and the Trustee shall promptly authenticate and mail or deliver to such
Holders a new Security equal in principal amount to any unpurchased portion of
the Security surrendered. Any Securities not so accepted shall be promptly
mailed or delivered by the Company to the Holder thereof. The Company will
publicly announce the results of the Change of Control Offer not later than the
first Business Day following the Change of Control Purchase Date.
The Company shall 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 a
manner, at the times and otherwise in compliance with the requirements
applicable to a Change of Control Offer made by the Company and purchases all
Securities validly tendered and not withdrawn under such Change of Control
Offer.
The Company shall comply, to the extent applicable, with the requirements
of Section 14(e) of the Exchange Act, and any other securities laws or
regulations in connection with the repurchase of Securities pursuant to a
Change of Control Offer.
SECTION 4.12. Disposition of Proceeds of Asset Sales. (a) The Company
will not, and will not permit any of its Subsidiaries to, make any Asset Sale
unless (a) the Company or such 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 shares or assets sold or otherwise
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disposed of and (b) at least 70% of such consideration consists of cash or Cash
Equivalents. To the extent the Net Cash Proceeds of any Asset Sale are not
applied to repay (including by way of cash collateralization of outstanding
letters of credit), and permanently reduce the commitments under, the Credit
Agreements as then in effect or other Senior Indebtedness or Guarantor Senior
Indebtedness, the Company or such Subsidiary, as the case may be, may, within
fifteen months of such Asset Sale, apply the Net Cash Proceeds from such Asset
Sale to an investment in properties and assets that replace the properties and
assets that were the subject of such Asset Sale or in properties and assets that
will be used in the business of the Company and its Subsidiaries existing on the
Issue Date or in businesses reasonably related thereto ("Replacement Assets").
Any Net Cash Proceeds from any Asset Sale that are neither used to repay, and
permanently reduce the commitments under, the Credit Agreements or other Senior
Indebtedness or Guarantor Senior Indebtedness, nor invested in Replacement
Assets within the fifteen month period described above constitute "Excess
Proceeds" subject to disposition as provided below.
(b) When the aggregate amount of Excess Proceeds equals or exceeds
$15,000,000, the Company shall make an offer to purchase (an "Asset Sale
Offer") from all Holders, on a day not more than 40 Business Days thereafter
(the "Asset Sale Purchase Date"), an aggregate principal amount of Securities
equal to such Excess Proceeds, at a price in cash equal to 100% of the
outstanding principal amount thereof plus accrued and unpaid interest, if any,
to the purchase date (the "Asset Sale Offer Price").
(c) Notice of an Asset Sale Offer shall be mailed by the Company to all
Holders of Securities not less than 20 Business Days nor more than 40 Business
Days before the Asset Sale Purchase Date at their last registered address with
a copy to the Trustee and the Paying Agent. The Asset Sale Offer shall remain
open from the time of mailing for at least 20 Business Days and until at least
5:00 p.m., New York City time, on the Asset Sale Purchase Date. The notice,
which shall govern the terms of the Asset Sale Offer, shall include such
disclosures as are required by law and shall state:
(1) that the Asset Sale Offer is being made pursuant to this Section
4.12;
(2) the Asset Sale Offer Price (including the amount of accrued
interest, if any) for each Security, the Asset Sale Purchase Date and the
date on which the Asset Sale Offer expires;
(3) that any Security not tendered or accepted for payment will
continue to accrue interest in accordance with the terms thereof;
(4) that, unless the Company shall default in the payment of the Asset
Sale Offer Price, any Security accepted for payment pursuant to the Asset
Sale Offer shall cease to accrue interest after the Asset Sale Purchase
Date;
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(5) that Holders electing to have Securities purchased pursuant to an
Asset Sale Offer will be required to surrender their Securities to the
Paying Agent at the address specified in the notice prior to 5:00 p.m., New
York City time, on the Asset Sale Purchase Date and must complete any form
of letter of transmittal proposed by the Company and reasonably acceptable
to the Trustee and the Paying Agent;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than 5:00 p.m., New York City time, on the
Asset Sale Purchase Date, a tested telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Securities
the Holder delivered for purchase, the Security certificate number (if any)
and a statement that such Holder is withdrawing its election to have such
Securities purchased;
(7) that if Securities in a principal amount in excess of the Holder's
pro rata share of the amount of Excess Proceeds are tendered pursuant to
the Asset Sale Offer, the Company shall purchase Securities on a pro rata
basis among the Securities tendered (with such adjustments as may be deemed
appropriate by the Company so that only Securities in denominations of
$1,000 or integral multiples of $1,000 shall be acquired);
(8) that Holders whose Securities are purchased only in part will be
issued new Securities equal in principal amount to the unpurchased portion
of the Securities surrendered;
(9) the instructions that Holders must follow in order to tender their
Securities; and
(10) information concerning the business of the Company, the most
recent annual and quarterly reports of the Company filed with the SEC
pursuant to the Exchange Act (or, if the Company is not permitted to file
any such reports with the Commission, the comparable reports prepared
pursuant to Section 4.07), a description of material developments in the
Company's business, information with respect to pro forma historical
financial information after giving effect to such Asset Sale and Asset Sale
Offer and such other information concerning the circumstances and relevant
facts regarding such Asset Sale Offer as would be material to a Holder of
Securities in connection with the decision of such Holder as to whether or
not it should tender Securities pursuant to the Asset Sale Offer.
(d) On the Asset Sale Purchase Date, the Company shall (i) accept for
payment, on a pro rata basis, Securities or portions thereof tendered pursuant
to the Asset Sale Offer, (ii) deposit with the Paying Agent money, in
immediately available funds, in an amount sufficient to pay the Asset Sale
Offer Price of all Securities or portions thereof so
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tendered and accepted and (iii) deliver to the Trustee the Securities so
accepted together with an Officers' Certificate setting forth the Securities or
portions thereof tendered to and accepted for payment by the Company. The
Paying Agent shall promptly mail or deliver to Holders of Securities so accepted
payment in an amount equal to the Asset Sale Offer Price, and the Trustee shall
promptly authenticate and mail or deliver to such Holders a new Security equal
in principal amount to any unpurchased portion of the Security surrendered. Any
Securities not so accepted shall be promptly mailed or delivered by the Company
to the Holder thereof. The Company will publicly announce the results of the
Asset Sale Offer not later than the first Business Day following the Asset Sale
Purchase Date. To the extent that the aggregate principal amount of Securities
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the
Company may use such deficiency for general corporate purposes. Upon completion
of such Asset Sale Offer, the amount of Excess Proceeds shall be reset to zero.
For purposes of this Section 4.12, the Company shall not act as Paying Agent.
(e) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to the
Asset Sale Offer.
SECTION 4.13. Limitation on Transactions with Interested Persons. The
Company will not, and will not permit any of its Subsidiaries to, directly or
indirectly, enter into or suffer to exist any transaction or series of related
transactions (including, without limitation, the sale, transfer, disposition,
purchase, exchange or lease of assets, property or services) with, or for the
benefit of, any Affiliate of the Company or any beneficial owner (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall be
deemed to have "beneficial ownership" of all securities that such person has
the right to acquire, whether such right is exercisable immediately, after the
passage of time or upon the happening of an event) of 5% or more of the
Company's Common Stock at any time outstanding ("Interested Persons"), unless
(a) such transactions or series of related transactions is on terms that are no
less favorable to the Company, or such Subsidiary, as the case may be, than
those which could have been obtained in a comparable transaction at such time
from persons who are not Affiliates of the Company or Interested Persons, (b)
with respect to a transaction or series of transactions involving aggregate
payments or value equal to or greater than $1,000,000 and less than $10,000,000,
the Company has delivered an Officer's Certificate to the Trustee certifying
that such transaction or series of transactions complies with the preceding
clause (a), (c) with respect to a transaction or series of transactions
involving aggregate payments or value equal to or greater than $10,000,000 and
less than $25,000,000, the Company has delivered to the Trustee a board
resolution approved by a majority of disinterested members of the Board of
Directors ratifying such transaction or series of transactions, along with an
Officer's Certificate attesting to such resolution, and (d) with respect to a
transaction or series of transactions involving aggregate payments or value
equal to or greater than $25,000,000, the Company has delivered to the Trustee a
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written opinion from an Independent Financial Advisor stating that the terms of
such transaction or series of transactions are fair to the Company or its
Subsidiary, as the case may be, from a financial point of view; provided,
however, that this covenant will not restrict the Company from (i) paying
dividends in respect of its Capital Stock permitted under Section 4.09, (ii)
paying reasonable and customary fees to directors of the Company who are not
employees of the Company or (iii) making loans or advances to officers,
employees or consultants of the Company and its Subsidiaries (including travel
and moving expenses) in the ordinary course of business for bona fide business
purposes of the Company or such Subsidiary not in excess of $1,000,000 in the
aggregate at any one time outstanding.
SECTION 4.14. Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries. The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Subsidiary of the Company to (a) pay dividends, in cash or otherwise, or make
any other distributions on or in respect of its Capital Stock or any other
interest or participation in, or measured by, its profits, (b) pay any
Indebtedness owed to the Company or any other Subsidiary of the Company, (c)
make loans or advances to, or any other Investment in, the Company or any other
Subsidiary of the Company, (d) transfer any of its properties or assets to the
Company or any other Subsidiary of the Company or (e) guarantee any
Indebtedness of the Company or any other Subsidiary of the Company, except for
such encumbrances or restrictions existing under or by reason of (i) applicable
law, (ii) customary non-assignment provisions of any contract or any lease
governing a leasehold interest of the Company or any Subsidiary of the Company,
(iii) customary restrictions on transfers of property subject to a Lien
permitted under this Indenture which could not materially adversely affect the
Company's ability to satisfy its obligations under this Indenture and the
Securities, (iv) any agreement or other instrument of a person acquired by the
Company or any Subsidiary of the Company (or a Subsidiary of such person) in
existence at the time of such acquisition (but not created in contemplation
thereof), which encumbrance or restriction is not applicable to any person, or
the properties or assets of any person, other than the person, or the properties
or assets of the person, so acquired, (v) provisions contained in agreements or
instruments relating to Indebtedness which prohibit the transfer of all or
substantially all of the assets of the obligor thereunder unless the transferee
shall assume the obligations of the obligor under such agreement or instrument
and (vi) encumbrances and restrictions under the Credit Agreements and other
Senior Indebtedness and Guarantor Senior Indebtedness in effect on the Issue
Date and encumbrances and restrictions in permitted refinancings or replacements
thereof which are no less favorable to the Holders of the Securities than those
contained in the Senior Indebtedness and Guarantor Senior Indebtedness so
refinanced or replaced.
SECTION 4.15. Limitation on the Issuance of Other Senior Subordinated
Indebtedness. The Company will not, directly or indirectly, incur any
Indebtedness (including Acquired Indebtedness) that is subordinate in right of
payment to any Indebtedness
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of the Company, unless such Indebtedness is (x) pari passu with the Securities
or (y) subordinate in right of payment to the Securities in the same manner and
at least to the same extent as the Securities are subordinated to Senior
Indebtedness.
SECTION 4.16. Limitation on Guarantees by Subsidiaries. The Company will
not permit any Subsidiary, directly or indirectly, to assume, guarantee or in
any manner become liable with respect to any Indebtedness of the Company or any
Guarantor unless such Subsidiary is a Guarantor or simultaneously executes and
delivers a supplemental indenture to this Indenture providing for the guarantee
of payment of the Securities by such Subsidiary pursuant to the terms of
Article Twelve hereto and such guarantee shall be subordinated to Guarantor
Senior Indebtedness of such Subsidiary in substantially the same manner and to
the same extent set forth in Article Twelve. In connection with the execution
and delivery of the supplemental indenture, such Subsidiary shall execute and
deliver a Guarantee substantially in the form of Exhibit B hereto.
SECTION 4.17. Waiver of Stay, Extension or Usury Laws. The Company and
each Guarantor covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law or any usury law
or other law which would prohibit or forgive the Company or such Guarantor, as
the case may be, from paying all or any portion of the principal of, premium,
if any, or interest 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 waives all benefit or advantage
of any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
SECTION 4.18. Limitation on Applicability of Certain Covenants. During
any period of time that (i) the ratings assigned to the Securities by each of
S&P and Xxxxx'x (collectively, the "Rating Agencies") are no less than BBB- and
Baa3, respectively (the "Investment Grade Ratings"), and (ii) no Default or
Event of Default has occurred and is continuing, the Company and its Restricted
Subsidiaries will not be subject to the covenants described in Sections 4.08,
4.09, 4.12, 4.13, 4.14 and 4.16 (collectively, the "Suspended Covenants"). If
one or both Rating Agencies withdraws its rating or downgrades its Investment
Grade Rating, then thereafter the Company and its Subsidiaries will be subject
to the Suspended Covenants (until the Rating Agencies have again assigned
Investment Grade Ratings to the Securities) and compliance with the Suspended
Covenants with respect to Restricted Payments made after the time of such
withdrawal or downgrade will be calculated in accordance with the covenant
described in Section 4.09 as if such covenant had been in effect at all times
after the date of this Indenture.
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SECTION 4.19. Rule 144A Information Requirement. If at any time the
Company is no longer subject to the reporting requirements of the Exchange Act,
it will furnish to the Holders or beneficial holders of the Securities and
prospective purchasers of the Securities designated by the holders of the
Securities, upon their request, any information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.
SECTION 4.20. Redemption of Convertible Debentures. The Company will
mail, no later than on the fifth Business Day following the Issue Date, a
notice of redemption covering all outstanding Convertible Debentures providing
for a redemption date no later than the 30th day following the date of such
notice.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, etc. (a) The Company will not, in
any transaction or series of transactions, merge or consolidate with or into,
or sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets as an entirety to, any person or
persons, and the Company will not permit any of its Subsidiaries to enter into
any such transaction or series of transactions if such transaction or series of
transactions, in the aggregate, would result in a sale, assignment, conveyance,
transfer, lease or other disposition of all or substantially all of the
properties and assets of the Company or the Company and its Subsidiaries, taken
as a whole, to any other person or persons, unless at the time of and after
giving effect thereto (i) either (x) if the transaction or series of
transactions is a merger or consolidation, the Company shall be the surviving
person of such merger or consolidation, or (y) the person formed by such
consolidation or into which the Company or such Subsidiary is merged or to which
the properties and assets of the Company or such Subsidiary, as the case may be,
are transferred (any such surviving person or transferee person being the
"Surviving Entity") shall be a corporation organized and existing under the laws
of the United States of America, any state thereof or the District of Columbia
and shall expressly assume by a supplemental indenture executed and delivered to
the Trustee, in form reasonably satisfactory to the Trustee, the due and
punctual payment of the principal of, premium, if any, and interest on all the
Securities and the performance and observance of every covenant and obligation
of this Indenture and the Securities on the part of the Company to be performed
or observed and, in each case, the Indenture shall remain in full force and
effect; (ii) immediately before and immediately after giving effect to such
transaction or series of transactions on a pro forma basis (including,
without limitation, any Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction or series of transactions), no
Default or Event of Default shall have occurred and be continuing and the
Company, or the Surviving Entity, as the case may be, after giving effect to
such transaction or series of transactions on a pro forma basis (including,
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without limitation, any Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction or series of transactions),
could incur $1.00 of additional Indebtedness pursuant to the proviso in Section
4.08 (assuming a market rate of interest with respect to such additional
Indebtedness); (iii) immediately after giving effect to such transaction or
series of transactions on a pro forma basis (including, without limitation, any
Indebtedness incurred or anticipated to be incurred in connection with or in
respect of such transaction or series of transactions), the Consolidated Net
Worth of the Company or the Surviving Entity, as the case may be, is at least
equal to the Consolidated Net Worth of the Company immediately before such
transaction or series of transactions, and (iv) the Company or the Surviving
Entity, as the case may be, shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each in form and substance reasonably
satisfactory to the Trustee, each stating that such consolidation, merger, sale,
assignment, conveyance, transfer, lease or other disposition and, if a
supplemental indenture is required in connection with such transaction or series
of transactions, such supplemental indenture, complies with this Indenture and
that all conditions precedent herein provided for relating to such transaction
or series of transactions have been complied with; provided, however, that,
solely for purposes of computing amounts described in subclause (C) of the
covenant described in Section 4.09, any such Surviving Entity shall only be
deemed to have succeeded to and be substituted for the Company with respect to
periods subsequent to the effective time of such merger, consolidation or
transfer of assets.
SECTION 5.02. Successor Substituted. Upon any consolidation or merger,
or any sale, assignment, conveyance, transfer, lease or disposition of all or
substantially all of the properties and assets of the Company in accordance with
Section 5.01 hereof, in which the Company is not the continuing corporation, the
successor person or persons formed by such consolidation or into which the
Company is merged or the successor person to which such sale, assignment,
conveyance, transfer, lease or other disposition 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 successor had
been named as the Company herein; provided, however, that solely for purposes of
computing amounts described in subclause (C) of Section 4.09, any such successor
person shall only be deemed to have succeeded to and be substituted for the
Company with respect to periods subsequent to the effective time of such merger,
consolidation or transfer of assets.
ARTICLE SIX
REMEDIES
SECTION 6.01. Events of Default. An "Event of Default" means any of the
following events:
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(a) default in the payment of the principal of or premium, if any, on
any Security when the same becomes due and payable (upon Stated Maturity,
acceleration, optional redemption, required purchase, scheduled principal
payment or otherwise); or
(b) default in the payment of an installment of interest on any of the
Securities, when the same becomes due and payable, and any such Default
continues for a period of 30 days; or
(c) failure to perform or observe any other term, covenant or
agreement contained in the Securities, the Indenture or any Guarantee
(other than Defaults specified in clause (a) or (b) above) and such Default
continues for a period of 60 days after written notice of such Default
requiring the Company to remedy the same shall have been given (i) to the
Company by the Trustee or (ii) to the Company and the Trustee by Holders of
at least 25% in aggregate principal amount of the Securities then
outstanding; or
(d) default or defaults under one or more agreements, instruments,
mortgages, bonds, debentures or other evidences of Indebtedness under which
the Company or any Significant Subsidiary of the Company then has
outstanding Indebtedness in excess of $20,000,000, individually or in the
aggregate, and either (i) such Indebtedness is already due and payable in
full or (ii) such default or defaults have resulted in the acceleration of
the maturity of such Indebtedness; or
(e) one or more judgments, orders or decrees of any court or
regulatory or administrative agency of competent jurisdiction for the
payment of money in excess of $20,000,000, either individually or in the
aggregate, shall be entered against the Company or any Significant
Subsidiary of the Company or any of their respective properties and shall
not be discharged or fully bonded and there shall have been a period of 60
days after the date on which any period for appeal has expired and during
which a stay of enforcement of such judgment, order or decree, shall not be
in effect; or
(f) either (i) the collateral agent under the Credit Agreement or (ii)
any holder of at least $20,000,000 in aggregate principal amount of
Indebtedness of the Company or any of its Significant Subsidiaries shall
commence judicial proceedings to foreclose upon assets of the Company or
any of its Significant Subsidiaries having an aggregate Fair Market Value,
individually or in the aggregate, in excess of $20,000,000 or shall have
exercised any right under applicable law or applicable security documents
to take ownership of any such assets in lieu of foreclosure; or
(g) the Company or any Significant Subsidiary of the Company pursuant
to or under or within the meaning of any Bankruptcy Law:
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(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against it in an
involuntary case or proceeding;
(iii) consents to the appointment of a Custodian of it or for all
or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors;
or
(v) shall generally not pay its debts when such debts become
due or shall admit in writing its inability to pay its debts
generally; or
(h) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company or any Significant
Subsidiary of the Company in an involuntary case or proceeding,
(ii) appoints a Custodian of the Company or any Significant
Subsidiary of the Company for all or substantially all of its
properties, or
(iii) orders the liquidation of the Company or any Significant
Subsidiary of the Company,
and in each case the order or decree remains unstayed and in effect for 60
days; or
(i) any Guarantee issued by a Guarantor which is a Significant
Subsidiary of the Company ceases to be in full force and effect or is
declared null and void, or any such Guarantor denies that it has any
further liability under any such Guarantee, or gives notice to such effect
(other than by reason of the termination of the Indenture or the release of
any such Guarantee in accordance with Section 12.07) and such condition
shall have continued for a period of 60 days after written notice of such
failure (which notice shall specify the Default, demand that it be remedied
and state that it is a "Notice of Default") requiring such Guarantor and
the Company to remedy the same shall have been given (x) to the Company by
the Trustee or (y) to the Company and the Trustee by Holders of at least
25% in aggregate principal amount of the Securities then outstanding.
Subject to the provisions of Sections 7.01 and 7.02, the Trustee shall
not be charged with knowledge of any Default or Event of Default unless written
notice thereof shall have been given to a Trust Officer at the Corporate Trust
Office of the Trustee by the
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Company, the Paying Agent, any Holder, any holder of Senior Indebtedness or
Guarantor Senior Indebtedness or any of their respective agents.
SECTION 6.02. Acceleration. If an Event of Default (other than as
specified in Section 6.01(g) or (h)) occurs and is continuing, the Trustee, by
written notice to the Company, or the Holders of at least 25% in aggregate
principal amount of the Securities then outstanding, by written notice to the
Trustee and the Company, may declare the principal of, premium, if any, and
accrued and unpaid interest, if any, on all of the outstanding Securities to be
due and payable immediately, upon which declaration, all amounts payable in
respect of the Securities shall be immediately due and payable; provided,
however, that so long as the Credit Agreements shall be in force and effect, if
an Event of Default shall have occurred and be continuing (other than an Event
of Default specified in Section 6.01(g) or (h)), any such acceleration shall
not be effective until the earlier to occur of (a) ten Business Days following
delivery of a written notice of such acceleration to the Co-Agents under the
Credit Agreements of the intention to accelerate the maturity of the Securities
and (b) the acceleration of the maturity of the Indebtedness under the Credit
Agreements. If an Event of Default specified in Section 6.01(g) or 6.01(h)
occurs and is continuing, then the principal of, premium, if any, and accrued
and unpaid interest, if any, on all of the outstanding Securities shall ipso
facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder of Securities.
After a declaration of acceleration under this Indenture, but before a
judgment or decree for payment of the money due has been obtained by the
Trustee, the Holders of a majority in aggregate principal amount of the
outstanding Securities, by written notice to the Company and the Trustee, may
rescind such declaration if (a) the Company has paid or deposited with the
Trustee a sum sufficient to pay (i) all amounts due the Trustee under Section
7.08 and the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, (ii) all overdue interest on all
Securities, (iii) the principal of and premium, if any, on any Securities which
have become due otherwise than by such declaration of acceleration and interest
thereon at the rate borne by the Securities, and (iv) to the extent that
payment of such interest is lawful, interest upon overdue interest and overdue
principal which has become due otherwise than by such declaration of
acceleration at the rate borne by the Securities; (b) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction; and
(c) all Events of Default, other than the non-payment of principal of, premium,
if any, and interest on the Securities that has become due solely by such
declaration of acceleration, have been cured or waived as provided in Section
6.04.
No such rescission shall affect any subsequent Default or Event of Default
or impair any right subsequent therein.
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SECTION 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of, premium, if any, or interest
on the Securities or to enforce the performance of any provision of the
Securities or this Indenture.
All rights of action and claims under this Indenture or the Securities may
be enforced by the Trustee 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 accruing upon an Event
of Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults. Subject to the provisions of
Section 6.07 and 9.02, the Holders of not less than a majority in aggregate
principal amount of the outstanding Securities by notice to the Trustee may, on
behalf of the Holders of all the Securities, waive any past Default or Event of
Default and its consequences, except a Default or Event of Default specified in
Section 6.01(a) or (b) or in respect of any covenant or provision hereof which
cannot be modified or amended without the consent of the Holder so affected
pursuant to Section 9.02. When a Default or Event of Default is so waived, it
shall be deemed cured and shall cease to exist.
SECTION 6.05. Control by Majority. The Holders of not less than a
majority in aggregate principal amount of the outstanding Securities shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee, provided, however, that the Trustee may refuse to follow any
direction (a) that conflicts with any rule of law or this Indenture, (b) that
the Trustee determines may be unduly prejudicial to the rights of another
Securityholder, or (c) that may expose the Trustee to personal liability unless
the Trustee has been provided reasonable indemnity against any loss or expense
caused by its following such direction; and provided further that the Trustee
may take any other action deemed proper by the Trustee that is not inconsistent
with such direction.
SECTION 6.06. Limitation on Suits. No Holder of any Securities shall
have any right to institute any proceeding or pursue any remedy with respect to
this Indenture or the Securities unless:
(a) the Holder gives written notice to the Trustee of a continuing
Event of Default;
(b) the Holders of at least 25% in aggregate principal amount of the
outstanding Securities make a written request to the Trustee to pursue the
remedy;
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(c) such Holder or Holders offer and, if requested, provide to the
Trustee reasonable indemnity against any loss, liability or expense;
(d) the Trustee does not comply with the request within 30 days after
receipt of the request and the offer and, if requested, provision of
indemnity; and
(e) during such 30-day period the Holders of a majority in aggregate
principal amount of the outstanding Securities do not give the Trustee a
direction which is inconsistent with the request.
The foregoing limitations shall not apply to a suit instituted by a Holder
for the enforcement of the payment of principal of, premium, if any, or accrued
interest on, such Security on or after the respective due dates set forth in
such Security.
A Holder may not use this Indenture to prejudice the rights of any other
Holders or to obtain priority or preference over such other Holders.
SECTION 6.07. Right of Holders to Receive Payment. Notwithstanding any
other provision in this Indenture, other than the subordination provisions of
Article Ten and Sections 12.04 to 12.06, the right of any Holder of a Security
to receive payment of the principal of, premium, if any, and interest on such
Security, on or after the respective Stated Maturities expressed in such
Security, or to bring suit for the enforcement of any such payment on or after
the respective Stated Maturities, is absolute and unconditional and shall not be
impaired or affected without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default
specified in clause (a) or (b) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company, any Guarantor or any other obligor on the Securities for
the whole amount of principal of, premium, if any, and accrued interest
remaining unpaid, together with interest on overdue 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 Claims. 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 the Subsidiaries of the Company (or any
other obligor upon the Securities), their creditors or their property and shall
be entitled and empowered to collect and receive any monies or other property
payable
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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 7.08. 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 pursuant to
this Article Six, it shall pay out such money in the following order:
First: to the Trustee for amounts due under Section 7.08;
Second: subject to Article Ten, to Holders for interest accrued on
the Securities, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for interest;
Third: subject to Article Ten, to Holders for principal amounts
(including any premium) owing under the Securities, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Securities for principal (including any premium); and
Fourth: the balance, if any, to the Company or to the extent the
Trustee collects any amount from any Guarantor, to such Guarantor.
The Trustee, upon prior written notice to the Company, may fix a record
date and payment date for any payment to Securityholders 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 may in its discretion
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, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 does not apply to any suit by
the Trustee, any suit by a Holder pursuant to Section 6.07, or a suit by
Holders of more than 10% in aggregate principal amount of the outstanding
Securities.
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SECTION 6.12. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture, any Security or any Guarantee and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, each
Guarantor, if any, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties. (a) In case an Event of Default has occurred and
is continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
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,
(i) the Trustee need perform only such duties as are specifically set
forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) 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 same to determine whether or not they
conform to the requirements of this Indenture.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that
(i) this paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
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(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) 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) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.01.
SECTION 7.02. Rights of Trustee. Subject to Section 7.01 hereof and the
provisions of TIA Section 315:
(a) The Trustee may rely on any document reasonably believed by it to
be genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel and may require an Officers' Certificate or an Opinion of
Counsel, which shall conform to Sections 11.04 and 11.05. The Trustee
shall not be liable for any action it takes or omits to take in good faith
in reliance on such certificate or opinion.
(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 taken or omitted by
it in good faith and reasonably believed by it to be authorized or within
the discretion, rights or powers conferred upon it by this Indenture other
than any liabilities arising out of its own negligence.
(e) The Trustee may consult with counsel of its own choosing and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection in respect of any action taken,
omitted or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel.
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(f) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, 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.
(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, order or
direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may
be incurred therein or thereby.
Subject to the above provisions, the holders of not less than a majority
in aggregate principal amount of the outstanding Securities have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee under this Indenture.
SECTION 7.03. Individual Rights of Trustee. The Trustee, any Paying
Agent, Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 7.11 and 7.12 and TIA Section Section 310 and 311, may otherwise deal
with the Company and its Subsidiaries with the same rights it would have if it
were not the Trustee, Paying Agent, Registrar or such other agent.
SECTION 7.04. Trustee's Disclaimer. The Trustee makes no representations
as to the validity or sufficiency of this Indenture, the Securities or any
Guarantee, it shall not be accountable for the Company's use or application of
the proceeds from the Securities, 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 in the Securities other than
the Trustee's certificate of authentication.
SECTION 7.05. Notice of Default. If a Default or an Event of Default
occurs and is continuing and if it is known to the Trustee, the Trustee shall
mail to each Holder notice of the Default or Event of Default within 30 days
after obtaining knowledge thereof; provided, however, that, except in the case
of a Default or an Event of Default in the payment of the principal of,
premium, if any, or interest on any Security, the Trustee shall be protected in
withholding such notice if and so long as a committee of its Trust Officers in
good faith determines that the withholding of such notice is in the interest of
the Holders.
SECTION 7.06. Money Held in Trust. All moneys received by the Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required
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herein or by law. The Trustee shall not be under any liability for interest on
any moneys received by it hereunder, except as the Trustee may agree with the
Company.
SECTION 7.07. Reports by Trustee to Holders. Within 60 days after each
May 15 beginning with the May 15 following the date of this Indenture, the
Trustee shall, to the extent that any of the events described in TIA Section
313(a) shall have occurred within the previous twelve months, but not
otherwise, mail to each Holder a brief report dated as of such May 15 that
complies with TIA Section 313(a). The Trustee also shall comply with TIA
Section Section 313(b) and 313(c).
A copy of each report at the time of its mailing to Holders shall be
mailed to the Company and filed with the SEC and each securities exchange, if
any, on which the Securities are listed.
The Company shall notify the Trustee in writing if the Securities become
listed on any securities exchange.
SECTION 7.08. Compensation and Indemnity. The Company covenants and
agrees to pay the Trustee from time to time reasonable compensation for its
services. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable disbursements, expenses and advances
incurred or made by it. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless against,
any loss or liability incurred by it arising out of or in connection with the
administration of this trust and its rights or duties hereunder, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity. The Company shall be
entitled to assume the defense of the claim, with counsel reasonably
satisfactory to the Trustee; provided, however, that if such claim is made
against both the Company and the Trustee and the Trustee shall have reasonably
concluded that there may be one or more legal defenses available to it which
are different from or additional to those available to the Company, the
Trustee shall have the right to select separate counsel to defend such claim on
behalf of the Trustee. In the event that the Company assumes the defense of
the claim, the Company shall have no obligation to pay the fees and expenses of
separate counsel for the Trustee (except where the Trustee is entitled to
select separate counsel for the reason provided in the preceding sentence) and
the Trustee shall cooperate in the defense of such claim. The Company need not
pay for any settlement made without its prior written consent. The
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Company need not reimburse any expense or indemnify against any loss or
liability to the extent incurred by the Trustee through its gross negligence,
bad faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.08, the
Trustee shall have a Lien prior to the Securities on all assets held or
collected by the Trustee, in its capacity as Trustee, except assets held in
trust to pay principal of, premium, if any, or interest on particular
Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 6.01(g) or (h), the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Company's obligations under this Section 7.08 and any Lien arising
hereunder shall survive the resignation or removal of any trustee, the
discharge of the Company's obligations pursuant to Article Eight and/or the
termination of this Indenture.
SECTION 7.09. Replacement of Trustee. The Trustee may resign by so
notifying the Company. The Holders of a majority in principal amount of the
outstanding Securities may remove the Trustee by so notifying the Company and
the Trustee and may appoint a successor trustee with the Company's prior written
consent. The Company may remove the Trustee if:
1. the Trustee fails to comply with Section 7.11;
2. 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;
3. a receiver or other public officer takes charge of the Trustee or
its property; or
4. 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 Company shall notify each Holder of such event
and shall promptly appoint a successor Trustee. The Trustee shall be entitled
to payment of its fees and reimbursement of its expenses while acting as
Trustee, and to the extent such amounts remain unpaid, the Trustee that has
resigned or has been removed shall retain the Lien afforded by Section 7.08.
Within one year after the successor Trustee takes office, the Holders of a
majority in principal amount of the outstanding Securities may, with the
Company's prior written consent, appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
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A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately after that, the
retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the Lien provided in Section 7.08, 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. A successor Trustee shall mail notice of its succession
to each Securityholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the outstanding Securities
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.11, any Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section 7.09,
the Company's obligations under Section 7.08 shall continue for the benefit of
the retiring Trustee.
SECTION 7.10. 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 to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall, if such resulting, surviving
or transferee corporation or national banking association is otherwise eligible
hereunder, be the successor Trustee.
SECTION 7.11. Eligibility; Disqualification. There shall at all times be
a Trustee hereunder which shall be eligible to act as Trustee under TIA Section
Section 310(a)(1) and 310(a)(5) and which shall have a combined capital and
surplus of at least $50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of federal,
state, territorial or District of Columbia 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. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 7.12. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA
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Section 311(b). If the present or any future Trustee shall resign or be
removed, it shall be subject to TIA Section 311(a) to the extent provided
therein.
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Termination of the Company's Obligations. The Company and
each Guarantor may terminate its obligations under the Securities and this
Indenture, except those obligations referred to in the penultimate paragraph of
this Section 8.01, if
(a) either (i) all Securities previously authenticated and delivered
(other than destroyed, lost or stolen Securities which have been replaced
or paid or Securities for whose payment money 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 or
discharged from such trust, as provided in Section 8.04) have been
delivered to the Trustee for cancellation and the Company has paid all sums
payable by it hereunder, or (ii) either (A) 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
(B) all Securities have otherwise become due and payable hereunder and the
Company shall have irrevocably deposited or caused to be deposited with the
Trustee or a trustee reasonably 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, money in such amount as is sufficient without consideration of
reinvestment of such interest, to pay principal of, premium, if any, and
interest on the outstanding Securities to maturity or redemption, as
certified in a certificate of a nationally recognized firm of independent
public accountants; provided that the Trustee shall have been irrevocably
instructed to apply such money to the payment of said principal, premium, if
any, and interest with respect to the Securities and, provided further that
from and after the time of deposit, the money deposited shall not be subject
to the rights of holders of Senior Indebtedness pursuant to the provisions
of Article Ten;
(b) 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, any
other instrument to which the Company is a party or by which it is bound;
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(c) the Company shall have paid all other sums payable by it
hereunder; and
(d) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that (x) all conditions
precedent providing for the termination of the Company's and any
Guarantor's obligation under the Securities, this Indenture and any
Guarantee have been complied with and (y) such satisfaction and discharge
will not result in a breach or violation of, or constitute a default under,
this Indenture or any material agreement or instrument to which the Company
or a Guarantor is a party or by which the Company or a Guarantor is bound.
Notwithstanding the foregoing paragraph, the Company's obligations in
Sections 2.06, 2.07, 2.08, 2.12, 4.01, 4.02 and 7.08 and any Guarantor's
obligations in respect thereof shall survive until the Securities are no longer
outstanding pursuant to the last paragraph of Section 2.12. After the
Securities are no longer outstanding, the Company's obligations in Sections
7.08, 8.04 and 8.05 and any Guarantor's obligations in respect thereof shall
survive.
After such delivery or irrevocable deposit the Trustee upon request shall
acknowledge in writing the discharge of the Company's and any Guarantor's
obligations under the Securities and this Indenture except for those surviving
obligations specified above.
SECTION 8.02. Legal Defeasance and Covenant Defeasance. (a) The Company
may, at its option by Board Resolution of the Board of Directors of the
Company, at any time, with respect to the Securities, elect to have either
paragraph (b) or paragraph (c) below be applied to the outstanding Securities
upon compliance with the conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company and any Guarantor shall be deemed
to have been released and discharged from its obligations with respect to the
outstanding Securities on the date the conditions set forth below are satisfied
(hereinafter, "legal defeasance"). For this purpose, such 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 paragraph (e) below and
the other Sections of and matters under this Indenture referred to in (i) and
(ii) below, and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), and Holders of the Securities and any amounts
deposited under paragraph (d) below shall cease to be subject to any
obligations to, or the rights of, any holder of Senior Indebtedness or
Guarantor Senior Indebtedness under Article Ten or Article Twelve or otherwise,
except for the following which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of outstanding
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Securities to receive solely from the trust fund described in paragraph (d)
below and as more fully set forth in such paragraph, payments in respect of the
principal of, premium, if any, and interest on such Securities when such
payments are due, (ii) the Company's obligations with respect to such Securities
under Sections 2.07, 2.08 and 4.02, and, with respect to the Trustee, under
Section 7.08 and any Guarantor's obligations in respect thereof, (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv)
this Article Eight. Subject to compliance with this Section 8.02, the Company
may exercise its option under this paragraph (b) notwithstanding the prior
exercise of its option under paragraph (c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company shall be released and discharged
from its obligations under any covenant contained in Articles Five and Ten and
in Sections 4.07 through 4.16 and Section 4.19 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 to be not "outstanding" for the purpose 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 and Holders of the Securities
and any amounts deposited under paragraph (d) below shall cease to be subject
to any obligations to, or the rights of, any holder of Senior Indebtedness or
Guarantor Senior Indebtedness under Article Ten, Article Twelve or
otherwise. For this purpose, such covenant defeasance means that, with respect
to the outstanding Securities, the Company and any Guarantor may omit to comply
with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a Default or an
Event of Default under Section 6.01(c), but, except as specified above, the
remainder of this Indenture and such Securities shall be unaffected thereby.
(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Securities:
(i) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 7.11 who shall agree to comply with the provisions of this
Section 8.02 applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (x)
cash, in United States dollars, in an amount or (y) direct non-callable
obligations of, or non-callable obligations guaranteed by, the United
States of America for the payment of which guarantee or obligation the full
faith and credit of the United States is pledged ("U.S. Government
Obligations") maturing as to principal, premium, if any, and interest in
such amounts of cash, in United States dollars, and at such times as are
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sufficient without consideration of any reinvestment of such interest, to
pay principal of, premium, if any, and interest on the outstanding
Securities not later than one day before the due date of any payment, or
(z) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge and
which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge principal of, premium, if any, and interest on the
outstanding Securities (except lost, stolen or destroyed Securities which
have been replaced or repaid) on the Final Maturity Date or otherwise in
accordance with the terms of this Indenture and of such Securities;
provided, however, that the Trustee (or other qualifying trustee) shall
have received an irrevocable written order from the Company instructing the
Trustee (or other qualifying trustee) to apply such money or the proceeds
of such U.S. Government Obligations to said payments with respect to the
Securities;
(ii) no Default or Event of Default or event which with notice or
lapse of time or both would become a Default or an Event of Default with
respect to the Securities shall have occurred and be continuing on the date
of such deposit or, insofar as Section 6.01(a) is concerned, at any time
during the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until
the expiration of such period);
(iii) such legal defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest with respect to any securities of
the Company or any Guarantor;
(iv) such legal defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a Default or Event of Default
under, this Indenture or any other material agreement or instrument to
which the Company or any Guarantor is a party or by which it is bound;
(v) in the case of an election under paragraph (b) above, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (x)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (y) since the date of this Indenture, there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion 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;
(vi) in the case of an election under paragraph (c) above, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of
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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;
(vii) in the case of an election under either paragraph (b) or (c)
above, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that, (x) the trust funds will not be subject to any
rights of holders of Senior Indebtedness of the Company, including, without
limitation, the rights arising under this Indenture, and (y) 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; provided, however, that if a court were
to rule under any such law in any case or proceeding that the trust funds
remained property of the Company, no opinion needs to be given as to the
effect of such laws on the trust funds except the following: (A) assuming
such trust funds remained in the Trustee's possession prior to such court
ruling to the extent not paid to Holders of Securities, the Trustee will
hold, for the benefit of the Holders of Securities, a valid and enforceable
security interest in such trust funds that is not avoidable in bankruptcy
or otherwise, subject only to principles of equitable subordination, (B)
the Holders of Securities will be entitled to receive adequate protection
of their interests in such trust funds if such trust funds are used, and
(C) no property, rights in property or other interests granted to the
Trustee or the Holders of Securities in exchange for or with respect to any
of such funds will be subject to any prior rights of any other person,
subject only to prior Liens granted under Section 364 of Title 11 of the
U.S. Bankruptcy Code (or any section of any other Bankruptcy Law having the
same effect), but still subject to the foregoing clause (B); and
(viii) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that (x) all conditions
precedent provided for relating to either the legal defeasance under
paragraph (b) above or the covenant defeasance under paragraph (c) above,
as the case may be, have been complied with and (y) if any other
Indebtedness of the Company shall then be outstanding or committed, such
legal defeasance or covenant defeasance will not violate the provisions of
the agreements or instruments evidencing such Indebtedness.
(e) All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this paragraph (e), the "Trustee") pursuant to paragraph (d)
above in respect of the outstanding Securities shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(other than the Company or any Affiliate of the Company) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become due
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thereon in respect of principal, premium and interest, but such money need not
be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to paragraph (d) above or the principal, premium, if any,
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding
Securities.
Anything in this Section 8.02 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the request, in
writing, by the Company any money or U.S. Government Obligations held by it as
provided in paragraph (d) above 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 which would then be required to be deposited to effect an equivalent
legal defeasance or covenant defeasance.
SECTION 8.03. Application of Trust Money. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to
Sections 8.01 and 8.02, and shall apply the deposited money and the money from
U.S. Government Obligations in accordance with this Indenture to the payment of
principal of, premium, if any, and interest on the Securities.
SECTION 8.04. Repayment to Company or Guarantors. Subject to Sections
7.08, 8.01 and 8.02, the Trustee shall promptly pay to the Company or if
deposited with the Trustee by any Guarantor, to such Guarantor, upon receipt by
the Trustee of an Officers' Certificate, any excess money, determined in
accordance with Section 8.02, held by it at any time. The Trustee and the
Paying Agent shall pay to the Company or any Guarantor, upon receipt by the
Trustee or the Paying Agent, as the case may be, of an Officers' Certificate,
any money held by it for the payment of principal, premium, if any, or interest
that remains unclaimed for two years after payment to the Holders is required;
provided, however, that the Trustee and the Paying Agent before being required
to make any payment may, but need not, 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 or any Guarantor, Holders entitled to money must look solely to the
Company for payment as general creditors unless an applicable abandoned
property law designates another person, and all liability of the Trustee or
Paying Agent with respect to such money shall thereupon cease.
SECTION 8.05. Reinstatement. If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in accordance with this
Indenture by
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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, then and only then the Company's and each Guarantor's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had been made pursuant to this Indenture until
such time as the Trustee is permitted to apply all such money or U.S. Government
Obligations in accordance with this Indenture; provided, however, that if the
Company or a Guarantor has made any payment of principal of, premium, if any, or
interest on any Securities because of the reinstatement of its obligations, the
Company or such Guarantor, as the case may be, shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. The Company, when authorized
by a Board Resolution of its Board of Directors, and the Trustee may amend,
waive or supplement this Indenture or the Securities without notice to or
consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article Five or Section 12.01;
(c) to provide for uncertificated Securities in addition to
certificated Securities;
(d) to comply with any requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA; and
(e) to make any change that would provide any additional benefit or
rights to the Holders or that does not adversely affect the rights of any
Holder.
Notwithstanding the above, the Trustee and the Company may not make any
change that adversely affects the rights of any Holders hereunder. The Company
shall be required to deliver to the Trustee an Opinion of Counsel stating that
any such change made pursuant to this Section 9.01 does not adversely affect
the rights of any Holder.
SECTION 9.02. With Consent of Holders. Subject to Section 6.04, the
Company, when authorized by a Board Resolution of its Board of Directors, and
the Trustee may amend this Indenture or the Securities with the written consent
of the
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Holders of not less than a majority in aggregate principal amount of the
Securities then outstanding, and the Holders of not less than a majority in
aggregate principal amount of the Securities then outstanding by written notice
to the Trustee may waive future compliance by the Company or any Guarantor with
any provision of this Indenture, the Guarantees or the Securities.
Notwithstanding the provisions of this Section 9.02, without the consent
of each Holder affected, an amendment or waiver, including a waiver pursuant to
Section 6.04, may not:
(a) reduce the percentage in outstanding aggregate principal amount of
Securities the Holders of which must consent to an amendment, supplement or
waiver, or consent to take any action under this Indenture, any Guarantee
or the Securities;
(b) reduce or change the rate or time for payment of interest on any
Security;
(c) change the currency in which any Security, or any premium or
interest thereon, is payable;
(d) reduce the principal amount outstanding of or extend the fixed
maturity of any Security or alter the redemption provisions with respect
thereto;
(e) waive a default in the payment of the principal of, premium, if
any, or interest on, or redemption or an offer to purchase required
hereunder with respect to, any Security;
(f) make the principal of, premium, if any, or interest on any
Security payable in money other than that stated in the Security;
(g) modify this Section 9.02 or Section 6.04 or Section 6.07;
(h) amend, change or modify the obligations of the Company to make and
consummate the offer with respect to any Asset Sale or modify any of the
provisions or definitions with respect thereto;
(i) modify or change any provision of this Indenture affecting the
subordination or ranking of the Securities or any Guarantee in a manner
adverse to the Holders; or
(j) impair the right to institute suit for the enforcement of any
payment on or with respect to the Securities; or
(k) release any Guarantor from any of its obligations under its
Guarantee or this Indenture other than in compliance with Section 12.07.
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It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holder of each Security affected
thereby, with a copy to the Trustee, 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 amendment, supplement or waiver.
SECTION 9.03. Compliance with Trust Indenture Act. Every amendment of or
supplement to this Indenture, any Guarantee or the Securities shall comply with
the TIA as then in effect.
SECTION 9.04. 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 such 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.
However, any such Holder or subsequent Holder may revoke the consent as to his
Security or portion of a Security prior to such amendment, supplement or waiver
becoming effective. Such revocation shall be effective only if the Trustee
receives the notice of revocation before the date the amendment, supplement or
waiver becomes effective. Notwithstanding the above, nothing in this paragraph
shall impair the right of any Holder under Section 316(b) of the TIA.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then notwithstanding the
second and third sentences of the immediately preceding paragraph, those
persons who were Holders at such record date (or their duly designated
proxies), and only those persons, shall be entitled to consent to such
amendment, supplement or waiver or to revoke any consent previously given,
whether or not such persons continue to be Holders after such record date.
Such consent shall be effective only for actions taken within 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
(k) of Section 9.02; if it makes such a change, the amendment, supplement or
waiver shall bind every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security.
SECTION 9.05. Notation on or Exchange of Securities. If an amendment,
supplement or waiver changes the terms of a Security, the Trustee shall (in
accordance with the specific direction of the Company) request the Holder of
the Security to deliver it to the
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Trustee. The Trustee shall (in accordance with the specific direction of the
Company) 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
determines, 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 9.06. Trustee May Sign Amendments, etc. The Trustee shall sign
any amendment, supplement or waiver authorized pursuant to this Article Nine if
the amendment, supplement or waiver does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. If it does, the Trustee may,
but need not, sign it. In signing or refusing to sign such amendment,
supplement or waiver, the Trustee shall be entitled to receive, and shall be
fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that the execution of any amendment, supplement or waiver is
authorized or permitted by this Indenture, that it is not inconsistent herewith
and that it will be valid and binding upon the Company in accordance with its
terms.
ARTICLE TEN
SUBORDINATION OF SECURITIES
SECTION 10.01. Securities Subordinate to Senior Indebtedness. The
Company covenants and agrees, and each Holder of a Security, by his acceptance
thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article Ten, the Indebtedness represented by the
Securities is hereby expressly made subordinate and subject in right of payment
as provided in this Article to the prior payment in full in cash or Cash
Equivalents of all amounts payable under all existing and future Senior
Indebtedness of the Company.
This Article Ten shall constitute a continuing offer to all persons who,
in reliance upon such provisions, become holders of, or continue to hold Senior
Indebtedness; and such provisions are made for the benefit of the holders of
Senior Indebtedness; and such holders are made obligees hereunder and they or
each of them may enforce such provisions.
SECTION 10.02. Payment Over of Proceeds upon Dissolution, etc. In the
event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding
in connection therewith, relating to the Company or to its assets, or (b) any
liquidation, dissolution or other winding-up of the Company, whether voluntary
or involuntary and whether or not involving insolvency or bankruptcy, or (c)
any assignment for the benefit of creditors or any marshalling of assets or
liabilities of the Company, then and in any such event:
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(1) all Senior Indebtedness must be paid in full in cash or Cash
Equivalents before any direct or indirect payment or distribution
(excluding securities of the Company or any other person that are equity
securities or are subordinated in right of payment to all Senior
Indebtedness that may at the time be outstanding, to substantially the same
extent as, or to a greater extent than, the Securities as provided in this
Article; such securities are hereinafter collectively referred to as
"Permitted Junior Securities") is made on account of principal of, premium,
if any, or interest on the Securities or on account of the purchase,
redemption, defeasance or other acquisition of, or in respect of, the
Securities (other than payments previously made pursuant to Section 8.02);
and
(2) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities (excluding Permitted
Junior Securities), by set-off or otherwise, to which the Holders or the
Trustee would be entitled but for the provisions of this Article shall be
paid by the liquidating trustee or agent or other person making such
payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the trustee
or trustees under any indenture under which any instruments evidencing any
of such Senior Indebtedness may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the Senior Indebtedness
held or represented by each, to the extent necessary to make payment in
full in cash or Cash Equivalents of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution to
the holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of
this Section 10.02, the Trustee or the Holder of any Security shall have
received any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, in respect of
principal of, premium, if any, or interest on the Securities before all
Senior Indebtedness is paid in full in cash or Cash Equivalents then and in
such event such payment or distribution (excluding Permitted Junior
Securities) shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or
other person making payment or distribution of assets of the Company for
application to the payment of all Senior Indebtedness remaining unpaid, to
the extent necessary to pay all Senior Indebtedness in full in cash or Cash
Equivalents after giving effect to any concurrent payment or distribution
to or for the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company with
or into, another person or the liquidation or dissolution of the Company
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another person upon the terms and conditions
set forth in Article Five hereof shall not be deemed a dissolution, winding-up,
liquidation, reorganization, assignment for the benefit of
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creditors or marshalling of assets and liabilities of the Company for the
purposes of this Article if the person formed by such consolidation or the
surviving entity of such merger or the person which acquires by conveyance,
transfer or lease such properties and assets substantially as an entirety, as
the case may be, shall, as a part of such consolidation, merger, conveyance,
transfer or lease, comply with the conditions set forth in such Article Five.
SECTION 10.03. Suspension of Payment When Senior Indebtedness in Default.
(a) Unless Section 10.02 shall be applicable, upon the occurrence and during
the continuance of any default in the payment of principal, premium, if any, or
interest on any Senior Indebtedness, when the same becomes due (whether due to
lapse of time or at maturity, whether by acceleration or otherwise) (a "Payment
Default"), and after receipt by the Trustee and the Company from
representatives of holders of such Senior Indebtedness of written notice of
such default, no direct or indirect payment (other than payments previously
made pursuant to Article Eight) by or on behalf of the Company of any kind or
character (excluding Permitted Junior Securities) may be made on account of the
principal of, premium, if any, or interest on, or the purchase, redemption,
defeasance or other acquisition of, the Securities unless and until such Payment
Default has been cured or waived or has ceased to exist or such Senior
Indebtedness shall have been discharged or paid in full in cash or Cash
Equivalents.
(b) Unless Section 10.02 shall be applicable, upon the occurrence and
during the continuance of any default (other than a Payment Default) in respect
of any Designated Senior Indebtedness the terms of which provide that the
maturity thereof may be accelerated (a "Non-payment Default") and upon the
earlier to occur of (1) the receipt by the Trustee from the representatives of
holders of such Designated Senior Indebtedness of a written notice of such
Non-payment Default or (2) if such Non-payment Default results from the
acceleration of the Securities, the date of such acceleration, no payment
(other than payments previously made pursuant to Article Eight) or distribution
of any assets of the Company of any kind or character (excluding Permitted
Junior Securities) may be made by the Company on account of the principal of,
premium, if any, or interest on, or the purchase, redemption, defeasance or
other acquisition of, the Securities for the period specified below (the
"Payment Blockage Period").
(c) The Payment Blockage Period shall commence upon the receipt of notice
of a Non-payment Default by the Trustee from the representatives of holders of
Designated Senior Indebtedness or the date of the acceleration referred to in
clause (2) of the preceding paragraph, as the case may be, and shall end on the
earliest to occur of the following events: (1) 179 days have elapsed since the
receipt of such notice or the date of such acceleration (provided such
Designated Senior Indebtedness shall not theretofore have been accelerated),
(ii) such default is cured or waived or ceases to exist or such Designated
Senior Indebtedness is discharged or paid in full in cash or Cash Equivalents
(provided that no other Non-payment Default has occurred and is then continuing
after giving effect to such
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cure or waiver), or (iii) such Payment Blockage Period shall have been
terminated by written notice to the Company or the Trustee from the
representatives of holders of Designated Senior Indebtedness initiating such
Payment Blockage Period, after which the Company shall promptly resume making
any and all required payments in respect of the Securities, including any missed
payments (except where the provisions of Section 10.03(a) are then applicable in
respect of any Senior Indebtedness or where payment is otherwise not permitted
under the terms of this Indenture). No Non-payment Default with respect to
Designated Senior Indebtedness that existed or was continuing on the date of the
commencement of any Payment Blockage Period with respect to the Designated
Senior Indebtedness initiating such Payment Blockage Period will be, or can be,
made the basis for the commencement of a second Payment Blockage Period, whether
or not within a period of 365 consecutive days, unless such default has been
cured or waived for a period of not less than 90 consecutive days. In no event
will a Payment Blockage Period extend beyond 179 days from the receipt by the
Trustee of the notice or the date of the acceleration initiating such Payment
Blockage Period and there must be a 186 consecutive day period in any 365 day
period during which no Payment Blockage Period is in effect.
(d) In the event of the acceleration of the maturity of any of the
Securities, the holders of all Senior Indebtedness will first be entitled to
receive payment in full of all amounts due thereon before the Holders of the
Securities will be entitled to receive any payment on the principal of,
premium, if any, or interest on, the Securities (other than payments previously
made pursuant to Article Eight).
(e) In the event that, notwithstanding the foregoing, the Trustee or the
Holder of any Security shall have received any payment prohibited by the
foregoing provisions of this Section 10.03, then and in such event such payment
shall be paid over and delivered forthwith to the holders of Senior
Indebtedness or their representatives or as a court of competent jurisdiction
shall direct for application to the payment of any due and unpaid Senior
Indebtedness, to the extent necessary to pay all such due and unpaid Senior
Indebtedness in cash or Cash Equivalents, after giving effect to any concurrent
payment to or for the holders of Senior Indebtedness.
SECTION 10.04. Trustee's Relation to Senior Indebtedness. With respect
to the holders of Senior Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are specifically set
forth in this Article Ten (and in Article Twelve with respect to any Guarantor
Senior Indebtedness), and no implied covenants or obligations with respect to
the holders of Senior Indebtedness 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 Indebtedness.
SECTION 10.05. Subrogation to Rights of Holders of Senior Indebtedness.
Upon the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated to the rights of the holders of such Senior
Indebtedness, to the extent payments or
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distributions otherwise payable to the Holders have been applied to the payment
of Senior Indebtedness, to receive payments and distributions of cash, property
and securities applicable to the Senior Indebtedness until the principal of,
premium, if any, and interest on the Securities shall be paid in full in cash or
Cash Equivalents. For purposes of such subrogation, no payments or
distributions to the holders of Senior Indebtedness of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article Ten to the holders of Senior
Indebtedness by Holders of the Securities or the Trustee shall, as among the
Company, its creditors other than holders of Senior Indebtedness, and the
Holders of the Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Indebtedness.
If any payment or distribution to which the Holders would otherwise have
been entitled but for the provisions of this Article Ten shall have been
applied, pursuant to the provisions of this Article Ten, to the payment of all
amounts payable under the Senior Indebtedness of the Company, then and in such
case the Holders shall be entitled to receive from the holders of such Senior
Indebtedness at the time outstanding any payments or distributions received by
such holders of such Senior Indebtedness in excess of the amount sufficient to
pay all amounts payable under or in respect of such Senior Indebtedness in
full.
SECTION 10.06. Provisions Solely to Define Relative Rights. The
provisions of this Article Ten 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 Indebtedness on the other hand. Nothing contained in
this Article Ten or elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, as among the Company, its creditors other than
holders of Senior Indebtedness 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, premium, if any, and interest on
the Securities as and when the same shall become due and payable in accordance
with their terms; or (b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other than the holders
of Senior Indebtedness; or (c) prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law
upon a Default or an Event of Default under this Indenture, subject to the
rights, if any, under this Article Ten of the holders of Senior Indebtedness.
The failure to make a payment on account of principal of, premium, if any,
or interest on the Securities by reason of any provision of this Article Ten
shall not be construed as preventing the occurrence of a Default or an Event of
Default hereunder.
SECTION 10.07. Trustee to Effectuate Subordination. Each Holder of a
Security by such Holder's acceptance thereof authorizes and directs the Trustee
on such Holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article Ten and appoints the
Trustee his attorney-in-fact for
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any and all such purposes, including, in the event of any dissolution,
winding-up, liquidation or reorganization of the Company whether in bankruptcy,
insolvency, receivership proceedings, or otherwise, the timely filing of a claim
for the unpaid balance of the Indebtedness of the Company owing to such Holder
in the form required in such proceedings and the causing of such claim to be
approved. If the Trustee does not file such a claim prior to 30 days before the
expiration of the time to file such a claim, the holders of Senior Indebtedness,
or any Senior Representative, may file such a claim on behalf of Holders of the
Securities.
SECTION 10.08. No Waiver of Subordination Provisions. (a) No right of
any present or future holder of any Senior Indebtedness to enforce
subordination as herein provided 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 non-compliance
by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
(b) Without limiting the generality of Section 10.08(a), the holders of
Senior Indebtedness 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 Ten or the obligations
hereunder of the Holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (1) change the manner,
place or terms of payment or the amount of interest, fees or other amounts
payable, in respect of Senior Indebtedness; (2) extend the time of payment of,
or renew, increase or otherwise alter, Senior Indebtedness, or amend, waive, or
otherwise modify any terms of any instrument or agreement of any kind
evidencing, guaranteeing, securing or otherwise affecting or relating to Senior
Indebtedness; (3) exchange, release, sell, fail to perfect any security
interest or other Lien on or otherwise deal with, any property pledged,
mortgaged or otherwise subject to a security interest or other Lien securing
Senior Indebtedness; (4) release any guarantor or any other person liable in
any manner for the payment or collection of Senior Indebtedness; (5) exercise
or fail to exercise any right, power, privilege, or remedy in respect of Senior
Indebtedness or under any instrument or agreement evidencing, guaranteeing,
securing or otherwise affecting or relating to Senior Indebtedness; (6) give or
fail to give any notice, or take or fail to take any other action, required by
law, by agreement or otherwise to preserve the rights of any holder of Senior
Indebtedness against the Company or any guarantor or other person liable in
respect of Senior Indebtedness or with respect to any property pledged,
mortgaged or otherwise subject to a security interest or Lien securing Senior
Indebtedness; (7) perform or fail to perform any obligation of the holder of
Senior Indebtedness under any instrument or agreement evidencing, guaranteeing,
securing or otherwise affecting or relating to Senior Indebtedness;or (8) take
or fail to take any action that might otherwise constitute a defense available
to, or a discharge of, the Company or any guarantor or other person liable in
respect of Senior Indebtedness or the Trustee in respect of this Indenture;
provided,
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however, that in no event shall any such actions limit the right of the Holders
of the Securities to take any action to accelerate the maturity of the
Securities pursuant to Article Six hereof or to pursue any rights or remedies
hereunder or under applicable laws if the taking of such action does not
otherwise violate the terms of this Indenture.
SECTION 10.09. Notice to Trustee. (a) 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. Notwithstanding the provisions of this Article Ten or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Securities, unless and until the Trustee shall
have received written notice thereof from the Company or a holder of Senior
Indebtedness or from any trustee, fiduciary or agent therefor; and, prior to
the receipt of any such written notice, the Trustee, subject to the provisions
of this Section 10.09, shall be entitled in all respects to assume that no such
facts exist; provided, however, that if the Trustee shall not have received the
notice provided for in this Section 10.09 prior to the time at which by the
terms hereof any money may become payable for any purpose under this Indenture
(including, without limitation, the payment of the principal of, premium, if
any, or interest on any Security), then, anything herein contained to the
contrary notwithstanding but without limiting the rights and remedies of the
holders of Senior Indebtedness or any trustee, fiduciary or agent thereof, the
Trustee shall have full power and authority to receive such money and to apply
the same to the purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it prior to
such time; nor shall the Trustee be charged with knowledge of the curing of any
such default or the elimination of the act or condition preventing any such
payment unless and until the Trustee shall have received an Officers'
Certificate to such effect.
(b) Subject to the provisions of Section 7.01, the Trustee shall be
entitled to rely on the delivery to it of a written notice to the Trustee and
the Company by a person representing himself to be a holder of Senior
Indebtedness (or a trustee, fiduciary or agent therefor) to establish that such
notice has been given by a holder of Senior Indebtedness (or a trustee,
fiduciary or agent therefor). In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any person
as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article Ten, the Trustee may request such person
to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness 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 Ten, 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 10.10. Reliance on Judicial Order or Certificate of Liquidating
Agent. Upon any payment or distribution of assets of the Company referred to
in this
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Article Ten, the Trustee, subject to the provisions of Section 7.01, and the
Holders, shall be entitled to rely upon any order or decree entered by any court
of competent jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation, reorganization, dissolution, winding-up or similar case or
proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other person making such payment or distribution, delivered to the Trustee or to
the Holders, for the purpose of ascertaining the persons entitled to participate
in such payment or distribution, the holders of Senior Indebtedness 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.
SECTION 10.11. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article Ten with respect to any
Senior Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder. Nothing in this
Article Ten shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.08.
SECTION 10.12. Article Applicable to Paying Agents. In case at any time
any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term "Trustee" as used in this
Article shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this Article Ten
in addition to or in place of the Trustee; provided, however, that Section
10.11 shall not apply to the Company or any Affiliate of the Company if it or
such Affiliate acts as Paying Agent.
SECTION 10.13. No Suspension of Remedies. Nothing contained in this
Article Ten shall limit the right of the Trustee or the Holders of Securities
to take any action to accelerate the maturity of the Securities pursuant to
Article Six or to pursue any rights or remedies hereunder or under applicable
law, subject to the rights, if any, under this Article Ten of the holders, from
time to time, of Senior Indebtedness.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act of 1939. This Indenture is subject to
the provisions of the TIA that are required to be a part of this Indenture, and
shall, to the extent applicable, be governed by such provisions.
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If any provision of this Indenture modifies or excludes any provision of
the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or
excluded, as the case may be.
SECTION 11.02. Notices. Any notice or communication shall be
sufficiently given if in writing and delivered in person or mailed by first
class mail, postage prepaid, addressed as follows:
If to the Company or any Guarantor to:
Interface, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: General Counsel
With a copy to:
Xxxxxxxxxx & Xxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: X. Xxxxxxxxx Xxxxxx
If to the Trustee to:
First Union National Bank of Georgia
Suite 1100, First Union Plaza
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Corporate Trust Department
The parties hereto by notice to the other parties may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication mailed, postage prepaid, to a Holder,
including any notice delivered in connection with TIA Section 310(b), TIA
Section 313(c), TIA Section 314(a) and TIA Section 315(b), shall be mailed
by first class mail to such Holder at the address of such Holder as it appears
on the Securities register maintained by the Registrar and shall be
sufficiently given to such Holder if so mailed within the time prescribed.
Copies of any such communication or notice to a Holder shall also be mailed to
the Trustee.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other Holders.
Except for a notice to the
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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 11.03. Communication by Holders with Other Holders. Holders may
communicate pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Indenture or the Securities. The obligors, the
Trustee, the Registrar and any other person shall have the protection of TIA
Section 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company or any Guarantor to the Trustee to
take any action under this Indenture, such obligor shall furnish to the
Trustee:
(a) an Officers' Certificate 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
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05. 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:
(a) a statement that the person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statement or opinions contained in such
certificate or opinion are based;
(c) 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
opinion as to whether or not such covenant or condition has been complied
with; and
(d) 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 11.06. Rules by Trustee, Paying Agent, Registrar. The Trustee
may make reasonable rules for action by or at a meeting of Securityholders.
The Paying Agent or Registrar may make reasonable rules for its functions.
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SECTION 11.07. Governing Law. The laws of the State of New York shall
govern this Indenture, the Guarantees and the Securities. The Trustee, the
Company, each Guarantor and the Holders agree to submit to the jurisdiction of
the courts of the State of New York in any action or proceeding arising out of
or relating to this Indenture, the Guarantees or the Securities.
SECTION 11.08. No Interpretation of Other Agreements. This Indenture may
not be used to interpret another indenture, loan or debt agreement of the
Company, any Guarantor or any of its Subsidiaries. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 11.09. No Recourse Against Others. A director, officer,
employee, stockholder or Affiliate, as such, of the Company or any Guarantor
shall not have any liability for any obligations of the Company under the
Securities or this Indenture, or for any obligations of a Guarantor under any
Guarantee, 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.
SECTION 11.10. Successors. All agreements of the Company and any
Guarantor in this Indenture and the Securities and the Guarantees shall bind
its successors except as otherwise provided herein. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 11.11. Duplicate Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all such
executed copies together represent the same agreement.
SECTION 11.12. Separability. In case any provision in this Indenture,
any Guarantee or 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 11.13. Table of Contents, Headings, etc. The Table of Contents,
the Reconciliation and tie and the headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 11.14. Benefits of Indenture. Except as provided in Article Ten,
nothing in this Indenture or in the Securities, express or implied, shall give
to any person, other than the parties hereto and their successors hereunder,
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
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ARTICLE TWELVE
GUARANTEE OF SECURITIES
SECTION 12.01. Guarantee. Subject to the provisions of this Article
Twelve, each Guarantor hereby jointly and severally unconditionally guarantees
to each Holder of a Security authenticated and delivered by the Trustee and to
the Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Securities or the obligations of the
Company or any other Guarantors to the Holders or the Trustee hereunder or
thereunder, that: (a) the principal of, premium, if any, and interest on the
Securities will be duly and punctually paid in full when due, whether at
maturity, by acceleration or otherwise, and interest on the overdue principal
and (to the extent permitted by law) interest, if any, on the Securities and
all other obligations of the Company or the Guarantors to the Holders or the
Trustee hereunder or thereunder (including fees, expenses or other) and all
other Senior Subordinated Note Obligations will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (b) in case
of any extension of time of payment or renewal of any Securities or any of such
other Senior Subordinated Note Obligations, the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at Stated Maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed, or failing performance of any
other obligation of the Company to the Holders, for whatever reason, each
Guarantor will be obligated to pay, or to perform or cause the performance of,
the same immediately. An Event of Default under this Indenture or the
Securities shall constitute an event of default under this Guarantee, and shall
entitle the Holders of Securities to accelerate the obligations of the
Guarantors hereunder in the same manner and to the same extent as the
obligations of the Company.
Each of the Guarantors 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, any release of any other Guarantor, the recovery
of any judgment against the Company, any action to enforce the same, whether or
not a Guarantee is affixed to any particular Security, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. Each of the Guarantors hereby waives the benefit of
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 its Guarantee will not be discharged except by
complete performance of the obligations contained in the Securities, this
Indenture and this Guarantee. If any Holder or the Trustee is required by any
court or otherwise to return to the Company or to any Guarantor, or any
custodian, trustee, liquidator or other similar official acting in relation to
the Company or such Guarantor, any amount paid by the Company or such Guarantor
to the Trustee or such Holder, this Guarantee, to the extent
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theretofore discharged, shall be reinstated in full force and effect. Each
Guarantor further agrees that, as between it, on the one hand, and the Holders
of Securities and the Trustee, on the other hand subject to this Article Twelve,
(a) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article Six hereof for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (b) in the
event of any acceleration of such obligations as provided in Article Six hereof,
such obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantors for the purpose of this Guarantee.
This Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Company for
liquidation or reorganization, should the Company become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Company's assets, and shall,
to the fullest extent permitted by law, continue to be effective or be
reinstated, as the case may be, if at any time payment and performance of the
Securities are, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by any obligee on the Securities,
whether as a "voidable preference," "fraudulent transfer" or otherwise, all as
though such payment or performance had not been made. In the event that any
payment, or any part thereof, is rescinded, reduced, restored or returned, the
Securities shall, to the fullest extent permitted by law, be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored
or returned.
No stockholder, officer, director, employer or incorporator, past, present
or future, or any Guarantor, as such, shall have any personal liability under
this Guarantee by reason of his, her or its status as such stockholder,
officer, director, employer or incorporator.
The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under this Guarantee.
The Guarantee of each Guarantor is limited to an amount that would not
render such Guarantor insolvent. The Guarantee of any Guarantor, and this
Section 12.01 as applicable to any Guarantor, may be modified, without the
consent of the Holders, to reflect such further fraudulent conveyance savings
provisions, net worth or maximum amount limitations as to recourse or similar
provisions as are set forth in, and after giving effect to, any guarantee of
such Guarantor issued under the Credit Agreements and shall be required to be
modified in the same manner as such guarantee under the Credit Agreements are
amended or modified; provided that no such amendment or modification to
thereafter conform to the Credit Agreements shall be in a manner which is
adverse to the Holders in any respect. No modification or amendment referred
to in the preceding sentence shall be permitted if it would disadvantage the
Holders relative to the holders of the obligations of such Guarantor
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under the Credit Agreements other than by operation of the subordination
provisions of this Article Twelve and any Permitted Liens. Any amendment or
modification pursuant to this paragraph shall comply with the provisions of
Article Nine.
SECTION 12.02. Execution and Delivery of Guarantee. To further evidence
the Guarantee set forth in Section 12.01, each Guarantor hereby agrees that a
notation of such Guarantee, substantially in the form included in Exhibit B
hereto, shall be endorsed on each Security authenticated and delivered by the
Trustee after such Guarantee is executed and executed by either manual or
facsimile signature of an Officer of each Guarantor. The validity and
enforceability of any Guarantee shall not be affected by the fact that it is
not affixed to any particular Security.
Each of the Guarantors hereby agrees that its Guarantee set forth in
Section 12.01 shall remain in full force and effect notwithstanding any failure
to endorse on each Security a notation of such Guarantee.
If an Officer of a Guarantor whose signature is on this Indenture or a
Security no longer holds that office at the time the Trustee authenticates such
Security or at any time thereafter, such Guarantor's Guarantee of such Security
shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee set forth in
this Indenture on behalf of the Guarantor.
SECTION 12.03. Additional Guarantors. (a) Any person may become a
Guarantor by executing and delivering to the Trustee (i) a supplemental
indenture in form and substance satisfactory to the Trustee, which subjects
such person to the provisions of this Indenture as a Guarantor, and (ii) an
Opinion of Counsel to the effect that such supplemental indenture has been duly
authorized and executed by such person and constitutes the legal, valid,
binding and enforceable obligation of such person (subject to such customary
exceptions concerning fraudulent conveyance laws, creditors' rights and
equitable principles as may be acceptable to the Trustee in its discretion).
(b) If the Company or any of its Subsidiaries acquires or forms a Material
U.S. Subsidiary or if any Subsidiary of the Company shall become a Material
U.S. Subsidiary, the Company will cause any such Subsidiary to (i) execute and
deliver to the Trustee a supplemental indenture in form and substance
reasonably satisfactory to the Trustee pursuant to which such Subsidiary shall
guarantee all of the obligations of the Company with respect to the Securities
issued under this Indenture on a senior subordinated basis in substantially the
same manner and to the same extent set forth in this Article Twelve and (ii)
deliver to such Trustee an Opinion of Counsel reasonably satisfactory to such
Trustee to the effect that a supplemental indenture has been duly executed and
delivered by such Subsidiary and such Subsidiary is in compliance with the
terms of the Indenture.
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SECTION 12.04. Guarantee Obligations Subordinated to Guarantor Senior
Indebtedness. Each Guarantor covenants and agrees, and each Holder of a
Security, by its acceptance thereof, likewise covenants and agrees, that, to
the extent and in the manner hereinafter set forth in this Article Twelve, the
Indebtedness represented by the Guarantee made by or on behalf of such
Guarantor is hereby expressly made subordinate and subject in right of payment
as provided in this Article Twelve to the prior payment in full in cash or Cash
Equivalents or, as acceptable to the holders of Guarantor Senior Indebtedness
in any other manner, of all amounts payable under all existing and future
Guarantor Senior Indebtedness of such Guarantor.
This Section 12.04 and the following Sections 12.05 through 12.17 of this
Article Twelve shall constitute a continuing offer to all persons who, in
reliance upon such provisions, become holders of, or continue to hold Guarantor
Senior Indebtedness of any Guarantor and, to the extent set forth in Section
12.06(b), holders of Designated Senior Indebtedness; and such provisions are
made for the benefit of the holders of Guarantor Senior Indebtedness of each
Guarantor and, to the extent set forth in Section 12.06(b), holders of
Designated Senior Indebtedness; and such holders (to such extent) are made
obligees hereunder and they or each of them may enforce such provisions.
SECTION 12.05. Payment Over of Proceeds upon Dissolution, etc., of a
Guarantor. In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relating to any Guarantor or to its
assets, or (b) any liquidation, dissolution or other winding-up of any
Guarantor, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any marshalling of assets or liabilities of any Guarantor, then and in any
such event:
(1) all Guarantor Senior Indebtedness of such Guarantor must be paid
in full in cash or Cash Equivalents before the Holders of the Securities
are entitled to receive, pursuant to this Guarantee, any direct or indirect
payment or distribution by or on behalf of such Guarantor (excluding
Permitted Junior Securities of such Guarantor) on account of its Guarantee;
and
(2) any payment or distribution of assets of such Guarantor of any
kind or character, whether in cash, property or securities (excluding
Permitted Junior Securities of such Guarantor), by set-off or otherwise, to
which the Holders or the Trustee would be entitled but for the
subordination provisions of this Article Twelve shall be paid by the
liquidating trustee or agent or other person making such payment or
distribution whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the holders of Guarantor Senior
Indebtedness of such Guarantor or their representative or representatives
or to the trustee or trustees under any indenture under which any
instruments evidencing any of such Guarantor Senior Indebtedness may have
been issued, ratably according to the aggregate amounts remaining unpaid on
account
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of such Guarantor Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full in cash or Cash Equivalents of all
such Guarantor Senior Indebtedness remaining unpaid, after giving effect to
any concurrent payment or distribution to the holders of such Guarantor
Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of
this Section 12.05, the Trustee or the Holder of any Security shall have
received any payment or distribution of assets of such Guarantor of any
kind or character, whether in cash, property or securities, in respect of
the Guarantee of such Guarantor before all Guarantor Senior Indebtedness of
such Guarantor is paid in full in cash or Cash Equivalents, then and in
such event such payment or distribution (excluding Permitted Junior
Securities of such Guarantor) shall be paid over or delivered forthwith to
the trustee in bankruptcy, receiver, liquidating trustee, custodian,
assignee, agent or other person making payment or distribution of assets of
such Guarantor for application to the payment of all such Guarantor Senior
Indebtedness remaining unpaid, to the extent necessary to pay all of such
Guarantor Senior Indebtedness in full in cash or Cash Equivalents after
giving effect to any concurrent payment or distribution to or for the
holders of such Guarantor Senior Indebtedness.
The consolidation of a Guarantor with, or the merger of a Guarantor with
or into, another person or the liquidation or dissolution of a Guarantor
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another person upon the terms and conditions
set forth in Article Five hereof shall not be deemed a dissolution, winding-up,
liquidation, reorganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of a Guarantor for the purposes of this
Article if the person formed by such consolidation or the surviving entity of
such merger or the person which acquires by conveyance, transfer or lease such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance, transfer or lease, comply
with the conditions set forth in such Article Five.
SECTION 12.06. Suspension of Payment When Guarantor Senior Indebtedness
in Default. (a) Unless Section 12.05 shall be applicable, after the
occurrence of a Payment Default no payment or distribution of any assets of
such Guarantor of any kind or character (other than Permitted Junior Securities
of such Guarantor) shall be made by or on behalf of such Guarantor on account
of the payment of principal of, premium, if any, or interest on any Securities
or on account of the purchase, redemption, defeasance or other acquisition of
the Securities or any of the obligations of such Guarantor under this Guarantee
(other than payments previously made pursuant to Article Eight) unless and
until such Payment Default shall have been cured or waived or shall have ceased
to exist or the Senior Indebtedness as to which such Payment Default relates
shall have been discharged or paid in full in cash or Cash Equivalents, after
which, subject to Section 12.05 (if applicable), such Guarantor shall
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resume making any and all required payments in respect of its obligations under
this Guarantee, including any missed payments.
(b) Unless Section 12.05 shall be applicable, during any Payment Blockage
Period in respect of the Securities, no payment or distribution of any assets
of a Guarantor of any kind or character shall be made by or on behalf of a
Guarantor on account of the payment of principal of, premium, if any, or
interest on any Securities or on account of the purchase, redemption,
defeasance or other acquisition of any Securities or this Guarantee or on
account of any of the other obligations of such Guarantor under this Guarantee;
provided, however, that the foregoing prohibition shall not apply unless such
Payment Blockage Period has been instituted under Section 10.03(b) by a Senior
Representative acting for holders of Designated Senior Indebtedness who also
hold Guarantor Senior Indebtedness in respect of such Designated Senior
Indebtedness. Upon the termination of any Payment Blockage Period, subject to
Section 12.05 (if applicable), such Guarantor shall resume making any and all
required payments in respect of its obligations under this Guarantee, including
any missed payments (except where the provisions of Section 12.06(a) are then
applicable in respect of any Guarantor Senior Indebtedness or where payment is
otherwise not permitted under the terms of this Indenture).
(c) In the event of the acceleration of the maturity of the Securities,
the holders of all Guarantor Senior Indebtedness of such Guarantor will first
be entitled to receive payment in full of all amounts due thereon before the
holders of the Securities will be entitled to receive any payment by or on
behalf of such Guarantor (excluding Permitted Junior Securities of such
Guarantor) on account of its Guarantee.
(d) In the event that, notwithstanding the foregoing, the Trustee or the
Holder of any Security shall have received any payment from a Guarantor
prohibited by the foregoing provisions of this Section 12.06, then and in such
event such payment shall be paid over and delivered forthwith to the holders of
Guarantor Senior Indebtedness or their representatives, or as a court of
competent jurisdiction shall direct for application to the payment of any due
and unpaid Guarantor Senior Indebtedness, to the extent necessary to pay all
such due and unpaid Guarantor Senior Indebtedness in cash or Cash Equivalents,
after giving effect to any concurrent payment to or for the holders of
Guarantor Senior Indebtedness.
SECTION 12.07. Release of a Guarantor. (a) Upon the sale or disposition
of all of the Capital Stock of a Guarantor by the Company or a Subsidiary of
the Company, or upon the consolidation or merger of a Guarantor with or into
any person (in each case, other than to the Company or an Affiliate of the
Company), such Guarantor shall be deemed automatically and unconditionally
released and discharged from all obligations under this Article Twelve without
any further action required on the part of the Trustee or any Holder;
provided, however, that each such Guarantor which is a Significant Subsidiary
of the Company is sold or disposed of in accordance with Section 4.12 hereof;
provided further that the foregoing proviso shall not apply to the sale or
disposition of a Guarantor pursuant to, or
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in lieu of, the exercise by one or more holders of Senior Indebtedness of rights
and remedies in respect of the capital stock of such Guarantor previously
pledged or assigned to such holder or holders to secure such Indebtedness or
other sale or disposition the proceeds of which are used to repay Senior
Indebtedness secured by such capital stock.
(b) The Trustee shall deliver an appropriate instrument evidencing the
release of a Guarantor upon receipt of a request of the Company accompanied by
an Officers' Certificate certifying as to the compliance with this Section
12.07. Any Guarantor not so released or the entity surviving such Guarantor,
as applicable, will remain or be liable under its Guarantee as provided in this
Article Twelve.
The Trustee shall execute any documents reasonably requested by the
Company or a Guarantor in order to evidence the release of such Guarantor from
its obligations under its Guarantee endorsed on the Securities and under this
Article Twelve.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of a Guarantor with or into the Company or
another Guarantor or shall prevent any sale or conveyance of the property of a
Guarantor as an entirety or substantially as an entirety to the Company or
another Guarantor.
SECTION 12.08. Waiver of Subrogation. Each Guarantor hereby irrevocably
waives any claim or other rights which it may now or hereafter acquire against
the Company that arise from the existence, payment, performance or enforcement
of such Guarantor's obligations under this Guarantee and this Indenture,
including, without limitation, any right of subrogation, reimbursement,
exoneration, indemnification, and any right to participate in any claim or
remedy of any Holder of Securities against the Company, whether or not such
claim, remedy or right arises in equity, or under contract, statute or common
law, including, without limitation, the right to take or receive from the
Company, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim or other rights.
If any amount shall be paid to any Guarantor in violation of the preceding
sentence and the Securities shall not have been paid in full, such amount shall
have been deemed to have been paid to such Guarantor for the benefit of, and
held in trust for the benefit of, the Holders of the Securities, and shall,
subject to the subordination provisions of this Article and to Article Ten,
forthwith be paid to the Trustee for the benefit of such Holders to be credited
and applied upon the Securities, whether matured or unmatured, in accordance
with the terms of this Indenture. Each Guarantor acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the waiver set forth in this Section
12.08 is knowingly made in contemplation of such benefits.
This Section 12.08 as applicable to any particular Guarantor may be
amended or modified, without the consent of the Holders, in a manner to be
consistent with the terms of any waiver of subrogation language set forth in any
guarantee of such Guarantor issued under
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the Credit Agreements and shall be required to be modified in the same manner as
such guarantee under the Credit Agreements is amended or modified; provided that
no such amendment or modification to thereafter conform to the Credit Agreements
shall be in a manner which is adverse to the Holders in any respect. No
modification or amendment referred to in the preceding sentence shall be
permitted if it would disadvantage the Holders relative to the lenders under the
Credit Agreements other than by operation of the subordination provisions of
this Article Twelve and any Permitted Liens.
SECTION 12.09. Guarantee Provisions Solely to Define Relative Rights.
The subordination provisions of this Article 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 Guarantor Senior Indebtedness of each Guarantor
and, to the extent set forth in Section 12.06, holders of Designated Senior
Indebtedness on the other hand. Nothing contained in this Article Twelve
(other than a release pursuant to Section 12.07) or elsewhere in this Indenture
or in the Securities is intended to or shall (a) impair, as among each
Guarantor, its creditors other than holders of its Guarantor Senior
Indebtedness and the Holders of the Securities, the obligation of such
Guarantor, which is absolute and unconditional, to make payments to the Holders
in respect of its obligations under this Guarantee as and when the same shall
become due and payable in accordance with their terms; or (b) affect the
relative rights against such Guarantor of the Holders of the Securities and
creditors of such Guarantor other than the holders of the Guarantor Senior
Indebtedness of such Guarantor; or (c) prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law
upon Default or an Event of Default under this Indenture, subject to the
rights, if any, under the subordination provisions of this Article Twelve of
the holders of Guarantor Senior Indebtedness of the Guarantors hereunder and,
to the extent set forth in Section 12.06, holders of Designated Senior
Indebtedness.
The failure by any Guarantor to make a payment in respect of its
obligations under this Guarantee by reason of any provision of this Article
Twelve shall not be construed as preventing the occurrence of a Default or an
Event of Default hereunder.
SECTION 12.10. Trustee To Effectuate Subordination of Guarantee
Obligations. Each Holder of a Security by his acceptance thereof authorizes
and directs the Trustee on such Holder's 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 any and all
such purposes, including, in the event of any dissolution, winding-up,
liquidation or reorganization of any Guarantor whether in bankruptcy,
insolvency, receivership proceedings, or otherwise, the timely filing of a
claim for the unpaid balance of the Indebtedness of such Guarantor owing to
such Holder in the form required in such proceedings and the causing of such
claim to be approved. If the Trustee does not file such a claim prior to 30
days before the expiration of the time to file such a claim, the holders of
Guarantor Senior Indebtedness, or any Senior Representative, may file such a
claim on behalf of Holders of the Securities.
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SECTION 12.11. No Waiver of Guarantee Subordination Provisions. (a) No
right of any present or future holder of any Guarantor Senior Indebtedness of
any Guarantor or any Designated Senior Indebtedness to enforce subordination as
herein provided 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 any Guarantor or by any act
or failure to act, in good faith, by any such holder, or by any non-compliance
by the Company or any Guarantor with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof any such holder may have or
be otherwise charged with.
(b) Without limiting the generality of Section 12.11(a), the holders of
Guarantor Senior Indebtedness of any Guarantor 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
Twelve or the obligations hereunder of the Holders of the Securities to the
holders of such Guarantor Senior Indebtedness, do any one or more of the
following: (1) change the manner, place or terms of payment or the amount of
interest, fees or other amounts payable, in respect of Guarantor Senior
Indebtedness or Senior Indebtedness; (2) extend the time of payment of, or
renew, increase or otherwise alter, Guarantor Senior Indebtedness or Senior
Indebtedness, or amend, waive, or otherwise modify any terms of any instrument
or agreement of any kind evidencing, guaranteeing, securing or otherwise
affecting or relating to Guarantor Senior Indebtedness or Senior Indebtedness;
(3) exchange, release, sell, fail to perfect any security interest or other
Lien on or otherwise deal with, any property pledged, mortgaged or otherwise
subject to a security interest or other Lien securing Guarantor Senior
Indebtedness or Senior Indebtedness; (4) release any guarantor or any other
person liable in any manner for the payment or collection of Guarantor Senior
Indebtedness or Senior Indebtedness; (5) exercise or fail to exercise any
right, power, privilege, or remedy in respect of Guarantor Senior Indebtedness
or Senior Indebtedness or under any instrument or agreement evidencing,
guaranteeing, securing or otherwise affecting or relating to Guarantor Senior
Indebtedness or Senior Indebtedness; (6) give or fail to give any notice, or
take or fail to take any other action, required by law, by agreement or
otherwise to preserve the rights of any holder of Guarantor Senior Indebtedness
against the Company or any guarantor or other person liable in respect of
Guarantor Senior Indebtedness or Senior Indebtedness or with respect to any
property pledged, mortgaged or otherwise subject to a security interest or Lien
securing Guarantor Senior Indebtedness or Senior Indebtedness; (7) perform or
fail to perform any obligation of the holder of Guarantor Senior Indebtedness
under any instrument or agreement evidencing, guaranteeing, securing or
otherwise affecting or relating to Guarantor Senior Indebtedness or Senior
Indebtedness; or (8) take or fail to take any action that might otherwise
constitute a defense available to, or a discharge of, the Company or any
guarantor or other person liable in respect of Guarantor Senior Indebtedness or
Senior Indebtedness or the Trustee in respect of this Indenture; exercise or
refrain from exercising any rights against such Guarantor and any other person;
provided, however, that in no event shall any such actions limit the right of
the Holders of the Securities to take any action to accelerate the maturity of
the Securities pursuant to
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Article Six hereof or to pursue any rights or remedies hereunder or under
applicable laws if the taking of such action does not otherwise violate the
terms of this Indenture.
SECTION 12.12. Guarantors to Give Notice to Trustee. (a) Each Guarantor
shall give prompt written notice to the Trustee of any fact known to such
Guarantor which would prohibit the making of any payment by such Guarantor to
or by the Trustee in respect of the Securities. Notwithstanding the
subordination provisions of this Article or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee
in respect of the Securities, unless and until the Trustee shall have received
written notice thereof from the Company, such Guarantor or a holder of its
Guarantor Senior Indebtedness or from any trustee, fiduciary or agent therefor;
and, prior to the receipt of any such written notice, the Trustee, subject to
the provisions of this Section 12.12, shall be entitled in all respects to
assume that no such facts exist; provided, however, that if the Trustee shall
not have received the notice provided for in this Section 12.12 prior to the
time at which by the terms hereof any money may become payable for any purpose
under this Indenture (including, without limitation, the payment of the
principal of, premium, if any, or interest on any Security), then, anything
herein contained to the contrary notwithstanding but without limiting the
rights and remedies of the holders of such Guarantor Senior Indebtedness or any
trustee, fiduciary or agent thereof, the Trustee shall have full power and
authority to receive such money and to apply the same to the purpose for which
such money was received and shall not be affected by any notice to the contrary
which may be received by it prior to such time; nor shall the Trustee be
charged with knowledge of the curing of any such default or the elimination of
the act or condition preventing any such payment unless and until the Trustee
shall have received an Officers' Certificate from such Guarantor to such
effect.
(b) Subject to the provisions of Section 7.01, the Trustee shall be
entitled to rely on the delivery to it of a written notice to the Trustee and
the Company by a person representing himself to be a holder of Guarantor Senior
Indebtedness of any Guarantor (or a trustee, fiduciary or agent therefor) to
establish that such notice has been given by a holder of Guarantor Senior
Indebtedness of a Guarantor (or a trustee, fiduciary or agent therefor). In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any person as a holder of Guarantor
Senior Indebtedness of any 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 Guarantor Senior Indebtedness of each Guarantor 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 12.13. Reliance on Judicial Order or Certificate of Liquidating
Agent Regarding Dissolution, etc., of Guarantors. Upon any payment or
distribution of
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assets of any Guarantor referred to in this Article Twelve, the Trustee subject
to the provisions of Section 7.01, and the Holders shall be entitled to rely
upon any order or decree entered by any court of competent jurisdiction in
which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding-up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other person making
such payment or distribution, delivered to the Trustee or to the Holders, for
the purpose of ascertaining the persons entitled to participate in such payment
or distribution, the holders of Guarantor Senior Indebtedness 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 12.14. Rights of Trustee as a Holder of Guarantor Senior
Indebtedness; Preservation of Trustee's Rights. The Trustee in its individual
capacity shall be entitled to all the rights set forth in this Article Twelve
with respect to any Guarantor Senior Indebtedness of any Guarantor which may at
any time be held by the Trustee, to the same extent as any other holder of such
Guarantor Senior Indebtedness, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article Twelve
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 7.08.
SECTION 12.15. Article Twelve Applicable to Paying Agents. In case at
any time any Paying Agent other than the Trustee shall have been appointed by
the Company and be then acting hereunder, the term "Trustee" as used in this
Article Twelve shall in such case (unless the context otherwise requires) be
construed as extending to and including such Paying Agent within its meaning as
fully for all intents and purposes as if such Paying Agent were named in this
Article Twelve in addition to or in place of the Trustee; provided, however,
that Section 12.14 shall not apply to the Company or any Affiliate of the
Company if it or such Affiliate acts as Paying Agent.
SECTION 12.16. No Suspension of Remedies. Nothing contained in this
Article Twelve shall limit the right of the Trustee or the Holders of
Securities to take any action to accelerate the maturity of the Securities
pursuant to Article Six or to pursue any rights or remedies hereunder or under
applicable law, subject to the rights, if any, under this Article Twelve of the
holders, from time to time, of Guarantor Senior Indebtedness of the Guarantors.
SECTION 12.17. Trustee's Relation to Guarantor Senior Indebtedness. With
respect to the holders of Guarantor Senior Indebtedness 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 in
Article Ten with respect to Senior Indebtedness), and no implied covenants or
obligations with respect to the holders of Guarantor Senior Indebtedness of any
Guarantor shall be read into this Indenture against the
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Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Guarantor Senior Indebtedness of any Guarantor.
SECTION 12.18. Subrogation. Upon the payment in full of all Guarantor
Senior Indebtedness of the Guarantors and of all Senior Indebtedness of the
Company, the Holders shall be subrogated to the rights of the holders of such
Guarantor Senior Indebtedness of the Guarantors, to the extent payments or
distributions otherwise payable to the Holders have been applied to the payment
of Guarantor Senior Indebtedness, to receive payments and distributions of
cash, property and securities applicable to such Guarantor Senior Indebtedness
until all amounts due under the Guarantee shall be paid in full in cash or Cash
Equivalents. For purposes of such subrogation, no payments or distributions to
the holders of Guarantor Senior Indebtedness of any cash, property or
securities to which Holders of the Securities or the Trustee would be entitled
except for the provisions of this Article Twelve, and no payment pursuant to
the provisions of this Article Twelve to holders of such Guarantor Senior
Indebtedness of the Guarantors by the Holders or the Trustee, shall, as between
each Guarantor, its creditors other than holders of such Guarantor Senior
Indebtedness of the Guarantors and the Holders, be deemed to be a payment by
such Guarantor to or on account of such Guarantor Senior Indebtedness of the
Guarantors.
If any payment or distribution to which the Holders 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 Guarantor Senior Indebtedness of the Guarantors,
then and in such case, the Holders shall be entitled to receive from the
holders of such Guarantor Senior Indebtedness of the Guarantors at the time
outstanding any payments or distributions received by such holders of Guarantor
Senior Indebtedness of the Guarantors in excess of the amount sufficient to pay
all amounts payable under or in respect of such Guarantor Senior Indebtedness
of the Guarantors in full.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
INTERFACE, INC.
By /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
BENTLEY XXXXX, INC.
GUILFORD (DELAWARE), INC.
GUILFORD OF MAINE, INC.
INTERFACE ASIA-PACIFIC, INC.
INTERFACE EUROPE, INC.
INTERFACE FLOORING SYSTEMS, INC.
INTERFACE RESEARCH CORPORATION
PANDEL, INC.
PRINCE STREET TECHNOLOGIES, LTD.
ROCKLAND REACT-RITE, INC.
By /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
FIRST UNION NATIONAL BANK OF GEORGIA, as Trustee
By /s/ Xxxxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxxxx X. Xxxxxx
115
EXHIBIT A
INTERFACE, INC.
% [SERIES B]** SENIOR SUBORDINATED NOTE DUE NOVEMBER 15, 2005
No. ______ $__________
Interface, Inc., a corporation incorporated under the laws of the State of
Georgia (herein called the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to _______________ or registered assigns, the principal
sum of _______________ Dollars on November 15, 2005, at the office or agency of
the Company referred to below, and to pay interest semiannually thereon on May
15 and November 15, in each year, commencing on May 15, 1996, accruing from the
most recent Interest Payment Date to which interest has been paid or duly
provided for or, if no interest has been paid, from the original date of
issuance, at the rate of 9 1/2% per annum, until the principal hereof is paid
or duly provided for. Interest will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the original date
of issuance (the"Issue Date"). Interest shall be computed on the basis of a
360-day year of twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture referred to on the
reverse hereof, be paid to the person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be May 1 or November 1
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date (each a "Regular Record Date"). Any such interest not so
punctually paid, or duly provided for, and interest on such defaulted interest
at the rate borne by the Securities, to the extent lawful, shall forthwith
cease to be payable to the Holder on such Regular Record Date, and may be paid
to the person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a special record date for
the payment of such defaulted interest to be fixed by the Trustee, notice of
which shall be given to Holders of Securities not less than 10 days prior to
such special record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in such Indenture.
_______________
**Include only for Exchange Notes.
116
2
[The Holder of this Security is entitled to the benefits of the
Registration Rights Agreement, dated as of November 21, 1995, among the
Company, the Guarantors and the Purchasers named therein (the "Registration
Rights Agreement"). In the event that either (a) the Exchange Offer
Registration Statement (as such term is defined in the Registration Rights
Agreement) is not filed with the Securities and Exchange Commission on or prior
to the 30th day following the date of original issue of the Securities, (b) the
Exchange Offer Registration Statement has not been declared effective on or
prior to the 75th day following the date of original issue of the Securities or
(c) the Exchange Offer (as such term is defined in the Registration Rights
Agreement) is not consummated or a Shelf Registration Statement (as such term
is defined in the Registration Rights Agreement) is not declared effective on
or prior to the 105th day following the date of original issue of the
Securities, the interest rate borne by this Security shall be increased by
0.50% per annum, which rate will be increased by an additional one-quarter of
one percent per annum for each 90-day period that any such additional interest
continues to accrue; provided that the aggregate increase in such interest rate
may in no event exceed 1.50% per annum. Upon (x) the filing of the Exchange
Offer Registration Statement in the case of clause (a) above, (y) the
effectiveness of the Exchange Offer Registration Statement in the case of
clause (b) above or (z) the day before the date of the consummation of the
Exchange Offer or the effectiveness of a Shelf Registration Statement, as the
case may be, in the case of clause (c) above, the interest rate borne by the
Security from the date of such filing, effectiveness or consummation, as the
case may be, will be reduced to the original interest rate set forth above;
provided, however, that, if after such reduction in interest rate, a different
event specified in clauses (a), (b) or (c) above occurs, the interest rate may
again be increased pursuant to the foregoing provisions.]*
Payment of the principal of, premium, if any, and interest on this
Security will be made at the office or agency of the Company maintained for
that purpose in Atlanta, Georgia, or at such other office or agency of the
Company as may be maintained for such purpose, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that payment of interest may be
made at the option of the Company by check mailed to the address of the person
entitled thereto as such address shall appear on the security register
maintained by the Registrar.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof.
Unless the certificate of authentication hereon has been duly executed by
the Trustee referred to on the reverse hereof by manual signature, and a seal
has been affixed hereon, this Security shall not be entitled to any benefit
under the Indenture, or be valid or obligatory for any purpose.
_______________
*Include only for Initial Notes.
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3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: , INTERFACE, INC.
By:
________________________________
Name:
Title:
[SEAL]
Attest:
---------------------------
Authorized Signature
118
4
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within-mentioned
Indenture.
FIRST UNION NATIONAL BANK
OF GEORGIA, as Trustee
By
---------------------------
Authorized Officer
119
5
(Reverse of Security)
1. Indenture. This Security is one of a duly authorized issue of
Securities of the Company designated as its 9 1/2% [Series B]* Senior
Subordinated Securities due 2005, limited (except as otherwise provided in the
Indenture referred to below) in aggregate principal amount to $125,000,000,
which may be issued under an indenture (herein called the "Indenture") dated as
of November 15, 1995, among Interface, Inc., a Georgia corporation, as issuer
(the "Company") Bentley Xxxxx, Inc., Guilford (Delaware), Inc., Guilford of
Maine, Inc., Interface Asia-Pacific, Inc., Interface Europe, Inc., Interface
Flooring Systems, Inc., Interface Research Corporation, Pandel, Inc., Prince
Street Technologies, Ltd., and Rockland React-Rite, Inc., (collectively, the
"Guarantors"), and First Union National Bank of Georgia, a national banking
association, as trustee (herein called the "Trustee," which term includes any
successor Trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder of
the Company, the Trustee, the Guarantors and the Holders of the Securities, and
of the terms upon which the Securities are, and are to be, authenticated and
delivered.
All capitalized terms used in this Security which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
No reference herein to the Indenture and no provisions of this Security
shall alter or impair the obligation of the Company or any Guarantor to pay the
principal of, premium, if any, and interest on this Security at the times,
place and rate, and in the coin or currency, herein prescribed.
2. Subordination. The Indebtedness evidenced by the Securities is, to the
extent and in the manner provided in the Indenture, subordinate and subject in
right of payment to the prior payment in full in cash or Cash Equivalents of
all Senior Indebtedness (including interest accruing after the filing of a
petition initiating any proceeding under any state, federal or foreign
bankruptcy or insolvency laws, whether or not allowable as a claim in such
proceeding) as defined in the Indenture, and this Security is issued subject to
such provisions. Each Holder of this Security, by accepting the same, (a)
agrees to and shall be bound by such provisions, (b) authorizes and directs
the Trustee, on behalf of such Holder, to take such action as may be necessary
or appropriate to effectuate the subordination as provided in the Indenture and
(c) appoints the Trustee attorney-in-fact of such Holder for such purpose;
provided, however, that the Indebtedness evidenced by this Security shall cease
to be so subordinate and subject in right of payment upon any defeasance of
this Security referred to in Paragraph 6 below.
_______________
*Include only for Exchange Notes.
120
6
3. Redemption. (a) Optional Redemption. The Securities are subject to
redemption, at the option of the Company, as a whole or in part, in principal
amounts of $1,000 or any integral multiple of $1,000, at any time on or after
November 15, 2000 upon not less than 30 nor more than 60 days' prior notice at
the following Redemption Prices (expressed as percentages of the principal
amount), if redeemed during the 12-month period beginning November 15 of the
years indicated below:
Redemption
Year Price
---- ----------
2000 104.750%
2001 103.167%
2002 101.583%
2003 and thereafter 100.000%
plus accrued and unpaid interest, if any, to the Redemption Date, all as
provided in the Indenture.
(b) Offer to Purchase upon a Change of Control and Certain Asset Sales.
The Company (a) is obligated, upon the occurrence of a Change of Control, to
make an offer to purchase all outstanding Securities at a purchase price of
101% of the principal amount thereof, plus accrued and unpaid interest, if any,
to the date of purchase, and (b) may be obligated to make an offer to purchase
Securities with a portion of the net cash proceeds of certain sales or other
dispositions of assets at a purchase price of 100% of the principal amount
thereof, plus accrued and unpaid interest, if any, to the date of purchase.
(c) Interest Payments. In the case of any redemption of Securities,
interest installments whose Stated Maturity is on or prior to the Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Date referred to on the face hereof. Securities (or portions thereof)
for whose redemption and payment provision is made in accordance with the
Indenture shall cease to bear interest from and after the Redemption Date.
(d) Partial Redemption. In the event of redemption of this Security in
part only, a new Security or Securities for the unredeemed portion hereof shall
be issued in the name of the Holder hereof upon the cancellation hereof.
4. Guarantees. This Security is entitled to certain senior subordinated
Guarantees made for the benefit of the Holders. Reference is hereby made to
the Guarantee attached hereto and to Section 4.16 of the Indenture and to
Article Twelve of the Indenture for the terms of the Guarantees.
5. Defaults and Remedies. If an Event of Default shall occur and be
continuing, the principal of all of the outstanding Securities, plus all
accrued and unpaid interest, if any, to and including the date the Securities
are paid, may be declared due and payable in the manner and with the effect
provided in the Indenture.
121
7
6. Defeasance. The Indenture contains provisions (which provisions apply
to this Security) for defeasance at any time of (a) the entire indebtedness of
the Company and any Guarantor under this Security and (b) certain restrictive
covenants and related Defaults and Events of Default, in each case upon
compliance by the Company with certain conditions set forth therein.
7. Amendments and Waivers. The Indenture permits, with certain exceptions
as therein provided, the amendment thereof and the modification of the rights
and obligations of the Company and the rights of the Holders under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority in aggregate principal amount of the
Securities at the time outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount
of the Securities at the time outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past Defaults under the Indenture and this Security and
their consequences. Any such consent or waiver by or on behalf of the Holder
of this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Security.
8. Denominations, Transfer and Exchange. The Securities are issuable only
in registered form without coupons in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Securities are exchangeable for a like
aggregate principal amount of Securities of a different authorized
denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable on the security
register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained for such purpose in
Atlanta, Georgia or at such other office or agency of the Company as may be
maintained for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Registrar
duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated
transferee or transferees.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
9. Persons Deemed Owners. Prior to and at the time of due presentment of
this Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the person in whose name this
Security is registered as the owner hereof for all purposes, whether or not
this Security shall be overdue, and neither the Company, the Trustee nor any
agent shall be affected by notice to the contrary.
122
8
10. Governing Law. This Security and the Guarantees shall be governed by
and construed in accordance with the laws of the State of New York.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL INITIAL SECURITIES]
In connection with any transfer of this Security occurring prior to the
date that is the earlier of (i) the date of an effective Registration Statement
containing a prospectus covering the resale of this Security by the Holder
hereof or (ii) November 21, 1998, the undersigned confirms that without
utilizing any general solicitation or general advertising that:
[Check One]
[ ] (a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended, provided
by Rule 144A thereunder.
or
[ ] (b) this Security is being transferred other than in accordance with (a)
above and documents are being furnished that comply with the conditions
of transfer set forth in this Security and the Indenture.
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9
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Security in the name of any Person other than
the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in the Indenture shall have been satisfied.
Date: _____________________ _________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of the within-mentioned instrument in every
particular, without alteration or any change
whatsoever.
Signature Guarantee:_______________________________
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933, as amended, and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information regarding
the Company as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated: ____________________ _________________________________
NOTICE: To be executed by an executive
Officer.
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10
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security and the Guarantees purchased by the
Company pursuant to Section 4.11 or 4.12 of the Indenture, check the
appropriate box:
Section 4.11 [ ]
Section 4.12 [ ]
If you wish to have a portion of this Security purchased by the Company
pursuant to Section 4.11 or 4.12 of the Indenture, state the amount:
$____________
Date:___________________ Your Signature: ___________________________
(Sign exactly as your
name appears on the
other side of this
Security)
Signature Guarantee:_________________________
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EXHIBIT B
SENIOR SUBORDINATED GUARANTEE
For value received, the undersigned hereby unconditionally guarantees to
the Holder of this Security the payments of principal of, premium, if any, and
interest on this Security in the amounts and at the time when due and interest
on the overdue principal, premium, if any, and interest, if any, of this
Security, if lawful, and the payment or performance of all other obligations of
the Company under the Indenture or the Securities, to the Holder of this
Security and the Trustee, all in accordance with and subject to the terms and
limitations of this Security, Article Twelve of the Indenture and this
Guarantee. The validity and enforceability of any Guarantee shall not be
affected by the fact that it is not affixed to any particular Security.
The obligations of the undersigned to the Holders of Securities and to the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth in
Article Twelve of the Indenture and reference is hereby made to the Indenture
for the precise terms of the Guarantee and all of the other provisions of the
Indenture to which this Guarantee relates. The Indebtedness evidenced by this
Guarantee is, to the extent and in the manner provided in the Indenture,
subordinate and subject in right of payment to the prior payment in full in
cash or Cash Equivalents of all Guarantor Senior Indebtedness as defined in the
Indenture, and this Guarantee is issued subject to such provisions. Each
Holder of a Security, by accepting the same, (a) agrees to and shall be bound
by such provisions, (b) authorizes and directs the Trustee, on behalf of such
Holder, to take such action as may be necessary and appropriate to effectuate
the subordination as provided in the Indenture and (c) appoints the Trustee
attorney-in-fact of such Holder for such purpose; provided, however, that such
subordination provisions shall cease to affect amounts deposited in accordance
with the defeasance provisions of the Indenture upon the terms and conditions
set forth therein.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
[NAME OF GUARANTOR]
By:
Name:
Title:
126
2
ASSIGNMENT FORM
If you the holder want to assign this Security, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Security to
(Insert assignee's social security or tax ID number)
(Print or type assignee's name, address and zip code) and irrevocably appoint
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Date: _____________ Your signature: __________________________
(Sign exactly as your name
appears on the other side of
this Security)
Signature Guarantee:
