9/27/90
XX
XXXXXX, INC.,
as Issuer
THE GUARANTORS NAMED HEREIN,
as Guarantors
FIRSTAR BANK, N.A.
as Trustee
11% SENIOR NOTES DUE 2009
---------------------------
INDENTURE
---------------------------
Dated as of September 28, 1999
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE............... 1
SECTION 1.01 Definitions.............................................. 1
SECTION 1.02 Other Definitions........................................ 22
SECTION 1.03 Incorporation by Reference of Trust Indenture Act........ 22
SECTION 1.04 Rules of Construction.................................... 23
SECTION 1.05 Compliance Certificates and Opinions..................... 23
SECTION 1.06 Form of Documents Delivered to Trustee................... 24
SECTION 1.07 Acts of Holders.......................................... 25
ARTICLE 2. THE NOTES ............................................... 26
SECTION 2.01. Form and Dating.......................................... 26
SECTION 2.02. Execution and Authentication............................. 26
SECTION 2.03. Registrar and Paying Agent............................... 27
SECTION 2.04. Paying Agent to Hold Assets in Trust..................... 28
SECTION 2.05. Holder Lists............................................. 28
SECTION 2.06. Transfer and Exchange.................................... 28
SECTION 2.07. Replacement Notes........................................ 41
SECTION 2.08. Outstanding Notes........................................ 42
SECTION 2.09. Treasury Notes........................................... 42
SECTION 2.10. Temporary Notes.......................................... 43
SECTION 2.11. Cancellation............................................. 43
SECTION 2.12. Defaulted Interest....................................... 43
SECTION 2.13 CUSIP Number............................................. 44
SECTION 2.14. Deposit of Moneys........................................ 44
SECTION 2.15. Issuance of Additional Notes............................. 45
ARTICLE 3. REDEMPTION AND OFFERS TO PURCHASE........................ 45
SECTION 3.01 Applicability of Article................................. 45
SECTION 3.02 Election to Redeem; Notice to Trustee.................... 45
SECTION 3.03 Selection of Notes to Be Redeemed........................ 46
SECTION 3.04 Notice of Redemption..................................... 46
SECTION 3.05 Deposit of Redemption Price.............................. 47
SECTION 3.06 Notes Payable on Redemption Date......................... 47
SECTION 3.07 Notes Redeemed in Part................................... 48
SECTION 3.08 Optional Redemption...................................... 48
SECTION 3.09 Mandatory Redemption..................................... 49
SECTION 3.10 Offer to Purchase by Application of Excess Proceeds...... 49
ARTICLE 4. COVENANTS................................................ 51
SECTION 4.01 Payment of Notes......................................... 51
SECTION 4.02 Maintenance of Office or Agency.......................... 51
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SECTION 4.03 Money for Security Payments to be Held in Trust.......... 52
SECTION 4.04 Reports.................................................. 53
SECTION 4.05 Compliance Certificate................................... 54
SECTION 4.06 Taxes.................................................... 55
SECTION 4.07 Stay, Extension and Usury Laws........................... 55
SECTION 4.08 Corporate Existence; Maintenance of Properties and
Insurance.............................................. 55
SECTION 4.09 Limitation on the Incurrence of Indebtedness and
Issuance of Preferred Stock.............................. 56
SECTION 4.10 Limitation on Restricted Payments........................ 58
SECTION 4.11 Limitation on Liens...................................... 62
SECTION 4.12 Limitation on Transactions with Affiliates............... 62
SECTION 4.13 Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries................................... 63
SECTION 4.14 Covenants Relating to Tax Payment Agreement.............. 64
SECTION 4.15 Payments for Consent..................................... 65
SECTION 4.16 Asset Sales.............................................. 65
SECTION 4.17 Offer to Repurchase Upon Change of Control............... 66
SECTION 4.18 Additional Subsidiary Guarantees......................... 68
SECTION 4.19 Limitation on Issuances and Sales of Capital
Stock of Wholly-Owned Restricted Subsidiaries............ 68
ARTICLE 5. SUCCESSORS............................................... 69
SECTION 5.01 Limitation on Merger, Consolidation or Sale of Assets.... 69
SECTION 5.02 Successor Person Substituted............................. 70
ARTICLE 6. DEFAULTS AND REMEDIES.................................... 70
SECTION 6.01 Events of Default........................................ 70
SECTION 6.02 Acceleration of Maturity................................. 72
SECTION 6.03 Other Remedies........................................... 72
SECTION 6.04 Waiver of Past Defaults.................................. 73
SECTION 6.05 Control by Majority...................................... 73
SECTION 6.06 Limitation on Suits...................................... 73
SECTION 6.07 Rights of Holders to Receive Payment..................... 74
SECTION 6.08 Collection Suit by Trustee............................... 74
SECTION 6.09 Trustee May File Proofs of Claim......................... 74
SECTION 6.10 Priorities............................................... 75
SECTION 6.11 Undertaking for Costs.................................... 75
ARTICLE 7. TRUSTEE.................................................. 76
SECTION 7.01 Duties of Trustee........................................ 76
SECTION 7.02 Rights of Trustee........................................ 77
SECTION 7.03 Individual Rights of Trustee............................. 78
SECTION 7.04 Trustee's Disclaimer..................................... 78
SECTION 7.05 Notice of Defaults....................................... 79
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SECTION 7.06 Reports by Trustee to Holders of Notes................... 79
SECTION 7.07 Compensation and Indemnity............................... 79
SECTION 7.08 Replacement of Trustee................................... 81
SECTION 7.09 Successor Trustee by Merger, etc......................... 82
SECTION 7.10 Eligibility; Disqualification............................ 82
SECTION 7.11 Preferential Collection of Claims Against Company........ 82
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE................. 83
SECTION 8.01 Option to Effect Legal Defeasance or Covenant Defeasance. 83
SECTION 8.02 Legal Defeasance and Discharge........................... 83
SECTION 8.03 Covenant Defeasance...................................... 83
SECTION 8.04 Conditions to Legal Defeasance or Covenant Defeasance.... 84
SECTION 8.05 Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions.................... 85
SECTION 8.06 Repayment to Company..................................... 86
SECTION 8.07 Reinstatement............................................ 86
ARTICLE 9. AMENDMENTS............................................... 87
SECTION 9.01 Without Consent of Holders............................... 87
SECTION 9.02 With Consent of Holders.................................. 87
SECTION 9.03 Compliance with Trust Indenture Act...................... 89
SECTION 9.04 Revocation and Effect of Consents........................ 89
SECTION 9.05 Notation on or Exchange of Notes......................... 89
SECTION 9.06 Trustee to Sign Amendments, etc.......................... 89
ARTICLE 10. SATISFACTION AND DISCHARGE............................... 90
Section 10.01 Satisfaction and Discharge of Indenture.................. 90
SECTION 10.02 Application of Trust Money............................... 91
ARTICLE 11. SUBSIDIARY GUARANTEES..................................... 92
SECTION 11.01 Subsidiary Guarantee...................................... 92
SECTION 11.02 Obligation of the Guarantors Unconditional................ 92
SECTION 11.03 Waiver Relating to Subsidiary Guarantees.................. 93
SECTION 11.04 Guarantors May Consolidate, etc., on Certain Terms........ 93
SECTION 11.05 Release of Subsidiary Guarantee........................... 94
SECTION 11.06 Contribution of Guarantors................................ 94
SECTION 11.07. Reinstatement of Subsidiary Guarantees.................... 95
MISCELLANEOUS................................................................ 95
SECTION 12.01 Trust Indenture Act Controls.............................. 95
SECTION 12.02 Notices................................................... 95
SECTION 12.03 Communication by Holders with Other Holders............... 97
SECTION 12.04 Certificate and Opinion as to Conditions Precedent........ 97
SECTION 12.05 Rules by Trustee and Agents............................... 97
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SECTION 12.06 Legal Holidays............................................ 97
SECTION 12.07 No Personal Liability of Directors, Officers, Employees,
Incorporators and Stockholders............................ 98
SECTION 12.08 Governing Law; Submission to Jurisdiction................. 98
SECTION 12.09 No Adverse Interpretation of Other Agreements............. 98
SECTION 12.10 Successors and Assigns.................................... 98
SECTION 12.11 Severability...............................................98
SECTION 12.12 Counterpart Originals......................................99
SECTION 12.13 Table of Contents, Headings, etc...........................99
SCHEDULES
Schedule 1 Commited Restricted Investments
Schedule 2 Existing Indebtedness
Schedule 3 Unrestricted Subsidiaries
EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Certificate of Transfer
Exhibit C Form of Certificate of Exchange
Exhibit D Form of Certificate from Acquiring Institutional
Accredited Investor
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CROSS-REFERENCE TABLE*
TRUST INDENTURE ACT SECTION INDENTURE SECTION
310(a)(1)............................................................7.10
(a)(2)..........................................................7.10
(a)(3)...........................................................N.A.
(a)(4)...........................................................N.A.
(a)(5)...........................................................7.10
(b)............................................................ 7.08,7.10
(c)..............................................................N.A.
311(a)................................................................7.11
(b)..............................................................7.11
(c)..............................................................N.A.
312(a)................................................................2.05
(b)..............................................................12.03
(c)..............................................................12.03
313(a)................................................................7.06
(b)(1)...........................................................N.A.
(b)(2)......................................................... 7.06;7.07
(c)..............................................................7.06
(d)..............................................................7.06
314(a)................................................................4.04,4.05
(b)..............................................................N.A.
(c)(1)...........................................................12.04
(c)(2)...........................................................12.04
(c)(3)...........................................................N.A.
(d)..............................................................N.A.
(e)..............................................................1.05
(f)..............................................................N.A.
315(a)................................................................7.01
(b)..............................................................7.05;12.02
(c)..............................................................7.01
(d)..............................................................7.01
(e)..............................................................6.11
316(a)(last sentence).................................................2.09
(a)(1)(A)........................................................6.05
(a)(1)(B)........................................................6.04
(a)(2)...........................................................N.A.
(b)..............................................................6.07
(c)..............................................................1.07
317(a)(1).............................................................6.08
(a)(2)...........................................................6.09
(b)..............................................................2.04
318(a)................................................................12.01
(b)..............................................................N.A.
(c)..............................................................12.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
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INDENTURE, dated as of September 28, 1999, among SBARRO, INC., a New
York corporation (the "Company"), as Issuer, the Guarantors named on the
signature pages hereto, as Guarantors, and FIRSTAR BANK, N.A., a national
banking association, as trustee (the "Trustee").
The Company, the Guarantors and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of
the 11% Senior Notes due 2009 of the Company (the "Notes").
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions
"144A Global Note" means a global note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
initial outstanding principal amount of the Notes sold in reliance on Rule 144A.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness or Preferred Stock of any other Person existing at the time such
other Person is merged with or into or became a Subsidiary of such specified
Person, including, without limitation, Indebtedness or Preferred Stock incurred
by such other Person in connection with, or in contemplation of, such other
Person merging with or into or becoming a Subsidiary of such specified Person,
and (ii) Indebtedness secured by a Lien encumbering any asset acquired by such
specified Person.
"Additional Notes" means, subject to the Company's compliance with
Section 4.09 hereof, 11% Senior Notes due 2009 issued from time to time after
September 28, 1999 under the terms of this Indenture (other than those issued
pursuant to Sections 2.06, 2.07, 2.10, 3.07, 3.10, 4.17 or 9.05 of this
Indenture and other than Exchange Notes issued pursuant to an Exchange Offer for
other Notes outstanding under this Indenture).
"Adjusted Consolidated Net Income" means, with respect to any Person
for any period, the sum of (i) the Consolidated Net Income of such Person for
such period plus (ii) the aggregate amount of intangible amortization charges
resulting from the Merger to the extent that such intangible amortization
charges were deducted in computing such Consolidated Net Income.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect
to any Person, shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise;
provided that beneficial ownership of 10% or more of the voting securities of a
Person shall be deemed to be control.
"Agent" means any Registrar or Paying Agent.
"Agent Members" means members of, or participants in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or exchange
of or for beneficial interest in any Global Note, the rule and regulations and
procedures of the Depositary that apply to such transfer or exchange.
"Asset Sale" means (i) the sale, lease, conveyance or other disposition
(collectively, "dispositions") of any assets or rights (including, without
limitation, by way of a sale and leaseback), other than dispositions of
inventory in the ordinary course of business consistent with past practices
(provided that the disposition of all or substantially all of the assets of the
Company and its Restricted Subsidiaries taken as a whole will be governed by the
provisions of Section 4.17 hereof and/or the provisions of Section 5.01 hereof
and not by the provisions of Section 4.16 hereof), and (ii) the issuance of
Equity Interests by any Restricted Subsidiary or the disposition by the Company
or a Restricted Subsidiary of Equity Interests in any of the Company's
Restricted Subsidiaries (other than directors' qualifying shares or shares
required by applicable law to be held by a Person other than the Company or a
Restricted Subsidiary of the Company); provided, however, that the term Asset
Sale shall not include any disposition of any assets or rights or any issuance
or disposition of Equity Interests if such transaction would have been an Asset
Sale in the absence of this proviso to the extent that the gross proceeds
thereof do not exceed, in aggregate amount together with all other such
dispositions or issuances, $3.0 million in any fiscal year of the Company (such
proceeds, to the extent non-cash, to be determined in good faith by the Board of
Directors of the Company). Notwithstanding the foregoing, the following will be
deemed not to be Asset Sales: (i) a transfer of assets or rights or Equity
Interests by the Company to a Wholly Owned Restricted Subsidiary or by a Wholly
Owned Restricted Subsidiary to the Company or to another Wholly Owned Restricted
Subsidiary; (ii) an issuance of Equity Interests by a Wholly Owned Restricted
Subsidiary to the Company or to another Wholly Owned Restricted Subsidiary;
(iii) a Permitted Investment or Restricted Payment that is permitted by Section
4.10 hereof; (iv) a disposition of Cash Equivalents solely for cash or other
Cash Equivalents; and (v) a disposition of assets in a single transaction or
group of related transactions, the gross proceeds of which do not exceed $10,000
(such proceeds, to the extent non-cash, to be determined in good faith by the
Board of Directors of the Company).
"Bankruptcy Law" means Title 11, U.S. Code or any similar foreign,
federal or state law for the relief of debtors, as amended.
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"Board of Directors" means, with respect to any Person, the board of
directors of such Person, or any duly authorized committee of such board of
directors.
"Board Resolution" means a duly adopted resolution of the Board of
Directors of the Company in full force and effect at the time of determination
and certified as such by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee.
"Broker-Dealer" has the meaning set forth in the Registration Rights
Agreement.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New York
are authorized or obligated by law, regulation or executive order to close.
"Capital Lease Obligation" means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and (iv) any other interest or participation that confers on a Person
the right to receive a share of the profits (other than incentive compensation
arrangements based upon profits) and losses of, or distributions of assets of,
the issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having maturities of not
more than six months from the date of acquisition, (iii) certificates of deposit
and Eurodollar time deposits with maturities of six months or less from the date
of acquisition, bankers' acceptances with maturities not exceeding six months
and overnight bank deposits, in each case with any domestic commercial bank
having capital and surplus in excess of $500 million and a Xxxxx Bank Watch
Rating of AB or better, (iv) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clauses (ii) and
(iii) above entered into with any financial institution meeting the
qualifications specified in clause (iii) above, (v) commercial paper having the
highest rating obtainable from Xxxxx'x Investors Service, Inc. or Standard &
Poor's, a division of The McGraw Hill Companies, and in each case maturing
within six months after the date of acquisition and (vi) Investments in money
market funds substantially all the assets of which are comprised of securities
and other obligations of the types described in clauses (i) through (v) above.
"Cedel" means Cedel Bank, societe anonyme.
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"Change of Control" means the occurrence of any of the following: (i) the
sale, lease, transfer, conveyance or other disposition, in one or a series of
related transactions, directly or indirectly, of all or substantially all of the
assets of the Company and its Restricted Subsidiaries taken as a whole to any
Person or "group" (as such term is used in Section 13(d)(3) of the Exchange
Act), other than to one or more Permitted Holders, (ii) the adoption of a plan
relating to the liquidation or dissolution of the Company, (iii) the
consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any Person or group, other than one
or more Permitted Holders, becomes the "beneficial owner" (as such term is
defined in Rule 13d- 3 and Rule 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 currently
exercisable or is exercisable only upon the occurrence of a subsequent
condition), directly or indirectly, of more than 35% of the Voting Stock of the
Company (measured by voting power rather than number of shares) or (iv) the
first day on which a majority of the members of the Board of Directors of the
Company are not Continuing Directors.
"Closing Date" means September 28, 1999.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor thereto.
"Committed Restricted Investments" means up to $13.9 million of
Investments that were, as of August 30, 1999, committed to be made by the
Company and its Restricted Subsidiaries and are set forth in Schedule l to the
Indenture.
"Company" means Sbarro, Inc., a New York corporation, and any successor
thereto pursuant to Section 5.01 hereof.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company (i) by its Chairman, a Vice Chairman, its
President, Senior Vice President or a Vice President and (ii) by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary and delivered to
the Trustee; provided, however, that such written request or order may be signed
by any two of the officers or directors listed in clause (i) above in lieu of
being signed by one of such officers or directors listed in such clause (i) and
one of the officers listed in clause (ii) above.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period plus, to the
extent deducted in computing such Consolidated Net Income, (i) an amount equal
to any net loss realized in connection with an Asset Sale, (ii) provision for
taxes based on income or profits of such Person and its Restricted Subsidiaries
for such period and Tax Distributions, if any, (iii) Consolidated Interest
Expense, and (iv) depreciation and amortization (including amortization of
goodwill and other intangibles but excluding amortization of prepaid cash
expenses that were paid in a prior period) and other non-cash expenses
(excluding any such non-cash
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expense to the extent that it represents an accrual of or reserve for cash
expenses in any future period or amortization of a prepaid cash expense that was
paid in a prior period) of such Person and its Restricted Subsidiaries for such
period to the extent that such depreciation, amortization and other non-cash
expenses were deducted in computing such Consolidated Net Income, minus (v)
non-cash items increasing such Consolidated Net Income for such period, in each
case, for such period without duplication on a consolidated basis and determined
in accordance with GAAP. Notwithstanding the foregoing, (i) the provision for
taxes based on the income or profits of, and the depreciation and amortization
and other non-cash charges of, a Person shall be added to Consolidated Net
Income to compute Consolidated Cash Flow only to the extent (and in the same
proportion) that the Net Income of such Person was included in calculating
Consolidated Net Income and (ii) the Net Income of any Unrestricted Subsidiary
shall be excluded, whether or not such Unrestricted Subsidiary has paid any
dividends or distributions to the Company or any of its Restricted Subsidiaries.
"Consolidated Interest Coverage Ratio" means, with respect to any
Person for any period, the ratio of the Consolidated Cash Flow of such Person
for such period to the Consolidated Interest Expense of such Person for such
period. In the event that the Company or any of its Restricted Subsidiaries
incurs, assumes, Guarantees, redeems or repays any Indebtedness (other than
revolving credit borrowings) subsequent to the commencement of the period for
which the Consolidated Interest Coverage Ratio is being calculated but prior to
the date on which the event for which the calculation of the Consolidated
Interest Coverage Ratio is made (the "Calculation Date"), then the Consolidated
Interest Coverage Ratio shall be calculated giving pro forma effect to such
incurrence, assumption, Guarantee, redemption or repayment of Indebtedness as if
the same had occurred at the beginning of the applicable four-quarter reference
period. In addition, for purposes of making the computation referred to above,
(i) acquisitions that have been made by the Company or any of its Restricted
Subsidiaries, including through mergers or consolidations and including any
related financing transactions, and other transactions consummated by the
Company or any of its Restricted Subsidiaries with respect to which pro forma
effect may be given pursuant to Article 11 of Regulation S-X under the
Securities Act, in each case during the four-quarter reference period or
subsequent to such reference period and on or prior to the Calculation Date
shall be deemed to have occurred on the first day of the four-quarter reference
period and Consolidated Cash Flow for such reference period shall be calculated
without giving effect to clause (iii) of the proviso set forth in the definition
of Consolidated Net Income, (ii) the Consolidated Cash Flow attributable to
discontinued operations, as determined in accordance with GAAP, and operations
or businesses disposed of prior to the Calculation Date, shall be excluded and
(iii) the Consolidated Interest Expense attributable to discontinued operations,
as determined in accordance with GAAP, and operations or businesses disposed of
prior to the Calculation Date, shall be excluded, but only to the extent that
the obligations giving rise to such Consolidated Interest Expense will not be
obligations of the referent Person or any of its Restricted Subsidiaries
following the Calculation Date.
"Consolidated Interest Expense" means, with respect to any Person for
any period, the sum, without duplication, of (i) the consolidated interest
expense of such Person and its
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Restricted Subsidiaries for such period, whether paid or accrued (including,
without limitation, amortization of debt issuance costs and original issue
discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capital Lease Obligations, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers' acceptance financings, and
net payments (if any) pursuant to Hedging Obligations), (ii) the consolidated
interest expense of such Person and its Restricted Subsidiaries that was
capitalized during such period, (iii) any interest expense for such period on
Indebtedness of another Person that is Guaranteed by such Person or one of its
Restricted Subsidiaries or secured by a Lien on assets of such Person or one of
its Restricted Subsidiaries (whether or not such Guarantee or Lien is called
upon), in each case, on a consolidated basis and in accordance with GAAP, and
(iv) the product of (x) any Preferred Stock dividends declared or paid or
payable in cash, and (y) a fraction, the numerator of which is one and the
denominator of which is one minus the then current combined federal, state and
local statutory tax rate of such Person, expressed as a decimal, determined, in
each case, on a consolidated basis and in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP, less the amount of all Tax Distributions, if any, made by such Person
from the beginning of such period through the date that is 30 days after the end
of such period; provided that (i) the Net Income of any Person that is not a
Restricted Subsidiary of such Person or that is accounted for by the equity
method of accounting shall be excluded, except that the Net Income of such
Person shall be included to the extent of the amount of dividends or
distributions paid in cash by such Person during such period to the referent
Person or a Wholly Owned Restricted Subsidiary thereof (other than any such
dividends or distributions (x) which the Company elects not to include in the
computation of Consolidated Net Income at the time of the computation thereof or
(y) which consist of payments to the Company referred to in subclause (3) of
clause (c) of the first paragraph of Section 4.10 hereof), (ii) the net income
(but not loss) of any Restricted Subsidiary shall be excluded to the extent that
the declaration or payment of dividends or similar distributions by that
Restricted Subsidiary of that net income is not at the date of determination
permitted without any prior governmental approval (that has not been obtained)
or, directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholders, (iii)
the Net Income of any Person acquired in a pooling of interests transaction for
any period prior to the date of such acquisition shall be excluded, (iv) the
cumulative effect of a change in accounting principles shall be excluded and (v)
any non-cash write-off or charge (excluding any such non-cash write-off or
charge to the extent it represents an accrual of or reserve of cash expenses in
any future period) in respect of the disposition or write-down of fixed assets
other than in the ordinary course of business shall be excluded.
"Consolidated Net Worth" means, with respect to any Person as of any
date, the sum of (a) the consolidated equity of the common stockholders of such
Person and its consolidated Restricted Subsidiaries as of such date, plus (b)
the respective amounts reported on such
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Person's balance sheet as of such date with respect to any series of Preferred
Stock (other than Disqualified Stock) that by its terms is not entitled to the
payment of dividends unless such dividends may be declared and paid only out of
net earnings in respect of the year of such declaration and payment, but only to
the extent of any cash received by such Person upon issuance of such Preferred
Stock, less (i) all write-ups (other than write-ups resulting from foreign
currency translations and write-ups of tangible assets of a going concern
business made within 12 months after the acquisition of such business)
subsequent to the Closing Date in the book value of any asset owned by such
Person or a consolidated Restricted Subsidiary of such Person, (ii) all
investments as of such date in unconsolidated Subsidiaries and in Persons that
are not Restricted Subsidiaries and (iii) all unamortized debt discount and
expense and unamortized deferred charges as of such date, in each case
determined in accordance with GAAP.
"Continuing Director" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the Closing Date or ii) was nominated for election or
elected to the Board of Directors of the Company with the approval of a majority
of the Continuing Directors who were members of such Board at the time of such
nomination or election.
"Corporate Trust Office of the Trustee" means the principal corporate
trust office of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date of execution of this
Indenture is located at 000 Xxxx 0xx Xxxxxx, 00xx Xxxxx, Xx. Xxxx, Xxxxxxxxx,
00000.
"Credit Facility" means that certain Credit Agreement, dated as of
September 23, 1999, by and among the Company, certain lenders and other
financial institutions, and European American Bank, as administrative agent for
such lenders and other financial institutions, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, in each case as any of the same may be amended, extended,
refinanced, renewed, increased, restated, replaced or refunded from time to
time.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default
"Definitive Notes" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.06 hereof,
substantially in the form of Exhibit A hereto except that such Note shall not
bear the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
-7-
"Depositary" means, with respect to any Global Note, the Person
specified in Section 2.03 hereof as the Depositary with respect to such Note,
until a successor shall have been appointed and become such pursuant to the
applicable provision of this Indenture, and, thereafter, "Depositary" shall mean
or include such successor.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the date
that is 91 days after the date on which the Notes mature.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear system.
"Event of Default" has the meaning set forth in Section 6.01 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Exchange Notes" means the Notes issued in the Exchange Offer pursuant
to Section 2.06(f) hereof.
"Exchange Offer" means the offer that may be made by the Company
pursuant to any Registration Rights Agreement to exchange Notes for Exchange
Notes and any similar exchange of Additional Notes.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Existing Indebtedness" means up to $8.8 million in aggregate principal
amount of Indebtedness of the Company and its Restricted Subsidiaries (other
than Indebtedness under the Credit Facility) in existence on the Closing Date
and set forth in Schedule 2 to the Indenture, until such Indebtedness is repaid.
Existing Indebtedness includes (a) certain Guarantees of obligations for
borrowed money (the "Borrowed Money Obligations"), including the Company's
Guarantee of 40% of up to $11.0 million of Indebtedness from time to time
outstanding of Boulder Creek Holding LLC and Boulder Creek Venture LLC under
loan agreements with HSBC Bank U.S.A., as they may be amended and in effect from
time to time, (b) certain Guarantees of reimbursement obligations in respect of
letters of credit, (c) any Guarantee by the Company or any of its Restricted
Subsidiaries of Indebtedness issued in exchange for, or the net proceeds of
which are used to refund, refinance or replace,
-8-
Borrowed Money Obligations at the time guaranteed pursuant to a Guarantee
referred to in clause (a) above ("Guaranteed Refinancing Indebtedness"), to the
extent that (x) the principal amount of such Guaranteed Refinancing Indebtedness
does not exceed the principal amount of the guaranteed Borrowed Money
Obligations so refunded, refinanced or replaced and (y) the obligor(s) of such
Guaranteed Refinancing Indebtedness are the same as the obligors on the
guaranteed Borrowed Money Obligations being refunded, refinanced or replaced,
and (d) any Guarantee of reimbursement obligations in respect of a letter of
credit issued in replacement for a letter of credit in respect of which the
reimbursement obligations are guaranteed pursuant to a Guarantee referred to in
clause (b) above (a "Replacement Letter of Credit") to the extent that (x) the
amount of Indebtedness represented by the Guarantee of reimbursement obligations
in respect of the Replacement Letter of Credit does not exceed the amount of
Indebtedness represented by the Guarantee of reimbursement obligations in
respect of the letter of credit so replaced and (y) the obligor(s) of the
reimbursement obligations in respect of the Replacement Letter of Credit are the
same as the obligor(s) of the reimbursement obligations in respect of the letter
of credit so replaced. For purposes of the Indenture, (a) any Guarantee by the
Company or any of its Restricted Subsidiaries of Guaranteed Refinancing
Indebtedness shall not be deemed to be an additional Investment to the extent
that (x) the provisions of subclauses (x) and (y) of clause (c) of the preceding
sentence are satisfied in respect of such Guaranteed Refinancing Indebtedness
and (y) the Guarantee of the Borrowed Money Obligations refunded, refinanced or
replaced by such Guaranteed Refinancing Indebtedness was entered into prior to
August 30, 1999 or constitutes a Committed Restricted Investment and (b) any
Guarantee by the Company or any of its Restricted Subsidiaries of reimbursement
obligations in respect of a Replacement Letter of Credit shall not be deemed to
be an additional Investment to the extent that (x) the provisions of subclauses
(x) and (y) of clause (d) of the preceding sentence are satisfied in respect of
such Guarantee and such Replacement Letter of Credit and (y) the Guarantee of
the reimbursement obligations in respect of the letter of credit replaced by
such Replacement Letter of Credit was entered into prior to August 30, 1999 or
constitutes a Committed Restricted Investment.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect in the United States from time to time.
"Global Note" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, substantially in the
form of Exhibit A hereto that bears the Global Note Legend and that has the
"Schedule of Exchange of Interests in the Global Note" attached thereto.
"Global Note Legend" means the legend set forth in Section 2.06(g)(ii),
which is required to be placed on all Global Notes issued under this Indenture.
-9-
"Government Securities" means securities that are (a) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian with respect to any such Government
Securities or a specific payment of principal of or interest on any such
Government Securities held by such custodian for the account of the holder of
such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the Government Securities or the specific payment of principal of or
interest on the Government Securities evidenced by such depository receipt.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Guarantor" means (i) each of the Company's Restricted Subsidiaries
that is a party to this Indenture on the date of execution and delivery of this
Indenture and (ii) each other Person that becomes a guarantor of the obligations
of the Company under the Notes and this Indenture from time to time in
accordance with the provisions of Section 4.18 hereof, and their respective
successors and assigns; provided, however, that "Guarantor" shall not include
any Person that is released from its Guarantee of the obligations of the Company
under the Notes and this Indenture as provided in Article 11 hereof.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) currency exchange or interest rate swap,
cap or collar agreements and (ii) other agreements or arrangements designed to
protect such Person against fluctuations in currency exchange or interest rates.
"Holder" means a Person in whose name a Note is registered.
"IAI Global Note" means a global note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
(with such changes therein as may be necessary or appropriate to reflect the
interest of an Institutional Accredited Investor) and deposited with or on
behalf of, and registered in the name of, the Depositary or its nominee that
will be issued in a denomination equal to the outstanding principal amount of
the Notes sold or otherwise transferred to Institutional Accredited Investors.
"Indebtedness" means with respect to any Person, without duplication,
(i) any indebtedness of such Person, whether or not contingent, in respect of
borrowed money or
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evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or bankers acceptances
or representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or services or representing any Hedging
Obligations, except any such balance that constitutes an accrued expense or
trade payable, if and to the extent any of the foregoing indebtedness (other
than letters of credit or reimbursement agreements in respect thereof) and
Hedging Obligations) would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, (ii) all indebtedness of others secured
by a Lien on any asset of such Person (whether or not such indebtedness is
assumed by such Person) and (iii) to the extent not otherwise included, the
Guarantee by such Person of any Indebtedness of any other Person.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Initial Purchaser" means Bear, Xxxxxxx & Co. Inc.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Interest Payment Date" means each March 15 and September 15.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of (a) direct
or indirect loans (including guarantees of (or the furnishing of letters of
credit as security for) Indebtedness or other obligations but excluding Remote
Guarantees), (b) advances or capital contributions (excluding (i) salary and
bonus advances, and commission, travel and similar advances, to officers and
employees made in the ordinary course of business consistent with past practice
and (ii) amounts payable by shareholders of the Company pursuant to the
provisions of the Tax Payment Agreement), (c) purchases or other acquisitions
for consideration of Indebtedness, Equity Interests or other securities, and (d)
payments pursuant to guarantees of Indebtedness or other obligations (including
payments pursuant to Remote Guarantees), together with all items that are or
would be classified as investments on a balance sheet prepared in accordance
with GAAP, excluding, however, trade accounts receivable and bank deposits made
in the ordinary course of business consistent with past practice. The amount of
any Investment by any Person that constitutes a guarantee of (or the furnishing
of a letter of credit as security for) Indebtedness or other obligations shall
be deemed to be (a) if such Investment is a guarantee of Indebtedness, the
maximum principal amount of Indebtedness that may be guaranteed under such
guarantee, (b) if such Investment is the furnishing of a letter of credit, the
maximum reimbursement obligation in respect of such letter of credit, (c) if
such Investment is a guarantee of a lease, the lesser of (A) the sum of (i) the
total amount of fixed rent (excluding escalations resulting from a rise in the
consumer price index or similar index and excluding amounts required to be paid
for insurance, taxes, gas, electricity, common area charges and other similar
charges) provided for in such lease during the term thereof, and (ii) the
product of (x) the Company's estimate (as determined in good faith by the Board
of Directors whose resolution with respect thereto shall be delivered to the
Trustee) of the amounts (exclusive of
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fixed rent) that will be payable under such lease in respect of the first year
of the term thereof and (y) the number of years of the term of such lease and
(B) the maximum liability of such Person under such guarantee (as determined in
good faith by the Board of Directors of the Company whose resolution with
respect thereto shall be delivered to the Trustee) and (d) if such Investment is
a guarantee of obligations other than Indebtedness or a lease, the maximum
liability of such Person under such guarantee. If an Investment by a Person
consists of the guarantee of a lease and the amount of such Investment is
determined under subclause (A) of clause (c) of the preceding sentence, such
Investment shall be deemed to be amortized on a straight line basis over the
term of the lease (or the remaining term of the lease if the Investment is made
or deemed to have been made after the commencement of the term of the lease). If
an Investment by a Person consists of the guarantee of a lease and the amount of
such Investment is determined under subclause (B) of clause (c) of the second
preceding sentence, such Investment shall be deemed to be amortized as and to
the extent that the maximum liability of such Person under such guarantee (as
determined in good faith by the Board of Directors of the Company, whose
resolution with respect thereto shall be delivered to the Trustee) is reduced.
Any unamortized portion of an Investment by a Person that consists of a
guarantee of a lease shall be deemed to be amortized on such date, if any, as
such Person has no further liability under such guarantee. If an Investment by a
Person consists of the guarantee of a lease and the fixed rent under such lease
is increased or the term of such lease is extended, (a) such Person shall be
deemed to have made a new Investment on the date (and computed as if the term of
the lease commenced as of the date) on which the action which increased the
fixed rent or extended the term occurred and (b) the unamortized portion
immediately prior to such date of such Person's original Investment by reason of
such guarantee shall be deemed to be amortized on such date. If the Company or
any Restricted Subsidiary of the Company sells or otherwise disposes of any
Equity Interests of any direct or indirect Wholly Owned Restricted Subsidiary of
the Company such that, after giving effect to any such sale or disposition, such
Person is no longer a Wholly Owned Restricted Subsidiary of the Company, the
Company shall be deemed to have made an Investment on the date of any such sale
or disposition equal to sum of (a) the fair market value of the Equity Interests
of such Restricted Subsidiary not sold or disposed of in an amount determined as
provided in the penultimate paragraph of Section 4.10 hereof and (b) the amount
of the Investments by the Company and its Restricted Subsidiaries constituting a
guarantee of (or the furnishing of a letter of credit as security for)
Indebtedness or other obligations of such Restricted Subsidiary.
"Letter of Transmittal" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional, sale or other title retention agreement, any lease
in the nature thereof, and any option or other agreement to sell or give a
Lien).
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"Liquidated Damages" has the meaning set forth in the Registration
Rights Agreement.
"Make-Whole Amount" means, with respect to any Note, an amount equal to
the excess, if any, of (a) the present value of the remaining principal, premium
and interest payments that would be payable with respect to such Note if such
Note were redeemed on September 15, 2004, computed using a discount rate equal
to the Treasury Rate plus 50 basis points, over (b) the outstanding principal
amount of such Note.
"Make-Whole Average Life" means, with respect to any date of redemption
of Notes, the number of years (calculated to the nearest one-twelfth) from such
redemption date to September 15, 2004.
"Make-Whole Price" means, with respect to any Note, the greater of (a)
the sum of the principal amount of and Make-Whole Amount with respect to such
Note, and (b) the redemption price of such Note on September 15, 2004.
"Maturity" when used in respect to any Note means the date on which the
principal of (and premium, if any) and interest and Liquidated Damages, if any,
on such Note becomes due and payable as therein or herein provided, whether at
Stated Maturity or the applicable Redemption Date and whether by declaration of
acceleration, call for redemption or otherwise.
"Merger" means the merger of Sbarro Merger LLC with and into the
Company pursuant to that certain Amended and Restated Agreement and Plan of
Merger, dated as of January 19, 1999, among the Company, Sbarro Merger LLC and
Xxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxx Xxxxxx (1994) Family Limited Partnership,
Xxxxxxx Xxxxxx, and Xxxxx Xxxxxx and Xxxxxxxx Xxxxxxxxxx, not individually but
as trustees under that certain Trust Agreement dated April 28, 1984 for the
benefit of Xxxxxxx Xxxxxx and her descendants.
"Net Income" means, with respect to any Person, the net income (loss)
of such Person, determined in accordance with GAAP and before any reduction in
respect of Preferred Stock dividends, excluding, however, (i) any gain (but not
loss), together with any related provision for taxes on such gain (but not
loss), realized in connection with (a) any Asset Sale (including, without
limitation, dispositions pursuant to sale and leaseback transactions) or (b) the
disposition of any securities by such Person or any of its Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its Subsidiaries,
(ii) any extraordinary gain or loss and any nonrecurring gain (but not loss),
together with any related provision for taxes on such extraordinary gain or loss
or nonrecurring gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale, but only
as and when received), net of (i) the direct costs relating to such Asset Sale
(including, without limitation, legal, accounting and investment banking fees,
and sales commissions) and any relocation expenses incurred as a result thereof,
(ii) taxes paid or
-13-
payable as a result thereof (after taking into account any available tax credits
or deductions and any tax sharing arrangements), (iii) amounts required to be
applied to the repayment of Indebtedness secured by a Lien on the asset or
assets that were the subject of such Asset Sale and (iv) any reserve for
adjustment in respect of the sale price of such asset or assets established in
accordance with GAAP.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Custodian" means the custodian for the Depositary of the Global
Note or any successor entity thereto.
"Notes" means $255,000,000 aggregate principal amount of the Company's
11% Senior Notes due 2009 issued pursuant to this Indenture on the Closing Date
and any other 11% Senior Notes due 2009 hereafter issued in compliance with the
provisions of this Indenture.
"Obligations" means any principal, interest (including post-petition
interest), penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, any Senior Vice President, any Vice
President, the Chief Financial Officer, the Secretary or any Assistant Secretary
of such Person.
"Officers' Certificate" means, with respect to any Person, a
certificate signed on behalf of such Person by the Chief Executive Officer or
President and by the Chief Financial Officer or chief accounting officer of such
Person.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee, that meets the requirements of Section 1.05 hereof
and, to the extent required by the TIA, complies with TIA ss. 314.
"Participant" means, with respect to DTC, Euroclear or Cedel, a Person
who has an account with DTC, Euroclear or Cedel, respectively (and, with respect
to DTC, shall include Euroclear and Cedel).
"Permitted Holder" means Xxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxxxx Xxxxxx,
their respective spouses and lineal descendants, any spouse of any such lineal
descendant who is a full time employee of the Company or any of its
Subsidiaries, any trust for the benefit of one or more of the foregoing, any
Person in which one or more of the foregoing holds 80% or more of the Voting
Stock (measured by voting power rather than number of shares) and the trust
created under that certain Trust Agreement dated April 28, 1984 for the benefit
of Xxxxxxx Xxxxxx and her descendants.
-14-
"Permitted Investments" means (i) any Investment in the Company or in a
Wholly Owned Restricted Subsidiary of the Company; (ii) any Investment in Cash
Equivalents; (iii) any Investment by the Company or any Restricted Subsidiary of
the Company in a Person, if as a result of such Investment (a) such Person
becomes a Wholly Owned Restricted Subsidiary of the Company and a Guarantor or
(b) such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is liquidated into,
the Company or a Wholly Owned Restricted Subsidiary of the Company; (iv) any
Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 4.16 hereof;
(v) any acquisition of assets received solely in exchange for the issuance of
Equity Interests (other than Disqualified Stock) of the Company; (vi)
Investments received in connection with the settlement of any ordinary course
obligations owed to the Company or any of its Restricted Subsidiaries; and (vii)
other Investments (including Investments in the form of guarantees of (or
providing letters of credit as security for) Indebtedness or other obligations
but excluding Committed Restricted Investments) in businesses reasonably similar
to the business engaged in by the Company and its Restricted Subsidiaries on the
date of this Indenture or in businesses reasonably complemen tary, related or
incidental thereto (as determined in good faith by the Board of Directors of the
Company) if, after giving effect to such Investment, the aggregate amount of
Unrestricted Investments Outstanding does not exceed $20.0 million.
"Permitted Liens" means (i) Liens in favor of the Company or any of its
Restricted Subsidiaries; (ii) Liens securing Obligations incurred pursuant to
clause (i) of the second paragraph of Section 4.09 hereof; provided, that the
outstanding principal amount of Indebtedness secured by Liens (other than Liens
on the real property and related personal property owned by the Company and/or
its Restricted Subsidiaries located at 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx)
permitted by this clause (ii) shall not at any time exceed $50.0 million; (iii)
Liens on property or Equity Interests of a Person existing at the time such
Person is merged into or consolidated with the Company or any Restricted
Subsidiary of the Company; provided that such Liens were in existence prior to
the contemplation of such merger or consolidation and do not extend to any
assets or Equity Interests other than those of the Person merged into or
consolidated with the Company; (iv) Liens on property existing at the time of
acquisition thereof by the Company or any Restricted Subsidiary of the Company;
provided that such Liens were in existence prior to the contemplation of such
acquisition; (v) Liens to secure the performance of statutory obligations,
surety or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business; (vi) Liens existing on the Closing
Date; (vii) Liens for taxes, assessments or governmental charges or claims that
are not yet delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently concluded; provided that any
reserve or other appropriate provision as shall be required in conformity with
GAAP shall have been made therefore; (viii) Liens securing the Notes or any
Guarantee thereof; (ix) Liens securing Permitted Refinancing Indebtedness to the
extent that the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded was permitted to be secured by a Lien provided that such
Liens do not extend to any assets other than those that secured the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded; (x) Liens
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securing Indebtedness (including Capital Lease Obligations) incurred pursuant to
clause (iv) of the second paragraph of Section 4.09 hereof; provided that such
Liens cover only assets acquired with the proceeds of such Indebtedness; and
(xi) Liens incurred in the ordinary course of business of the Company or any
Restricted Subsidiary of the Company with respect to obligations that do not
exceed $2.0 million at any one time outstanding and that (a) are not incurred in
connection with the borrowing of money or the obtaining of advances or credit
(other than trade credit in the ordinary course of business) and (b) do not in
the aggregate materially detract from the value of the property or materially
impair the use thereof in the operation of business by the Company or such
Restricted Subsidiary.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness (other than Hedging Obligations and other than
Indebtedness permitted to be incurred pursuant to clause (iv), clause (vii) or
clause (ix) of the second paragraph of Section 4.09 hereof) of the Company or
any of its Restricted Subsidiaries; provided that: (i) the principal amount (or
accreted value, if applicable) of such Permitted Refinancing Indebtedness does
not exceed the principal amount of (or accreted value, if applicable), plus
premium and accrued interest on, the Indebtedness so extended, refinanced,
renewed, replaced, defeased or refunded (plus the amount of reasonable expenses
incurred in connection therewith); (ii) such Permitted Refinancing Indebtedness
has a final maturity date later than the final maturity date of, and has a
Weighted Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; (iii) if the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded is subordinated in right of
payment to the Notes or any Guarantee thereof, such Permitted Refinancing
Indebtedness is subordinated in right of payment to the Notes or such Guarantee
on terms at least as favorable to the Holders of Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and (iv) such Indebtedness is incurred either by
the Company or by the Restricted Subsidiary that is an obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
"Person" means an individual, limited or general partnership,
corporation, limited liability company, association, unincorporated
organization, trust, joint stock company, joint venture or other entity, or a
government or any agency or political subdivision thereof.
"Preferred Stock" of any Person means Capital Stock of such Person of
any class or classes (however designated) that ranks prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person, to shares of Capital
Stock of any other class of such Person.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(i)(A) to be placed on all Notes issued under this Indenture except as
permitted pursuant to Section 2.06(g)(i)(B).
-16-
"Public Equity Offering" means a bona fide underwritten sale to the
public of common stock of the Company pursuant to a registration statement
(other than on Form S-8 or any other form relating to securities issuable under
any benefit plan of the Company) that is declared effective by the SEC.
"Redemption Date," when used with respect to any Note to be redeemed,
means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price," when used with respect to any Note to be redeemed,
means the price (exclusive of any accrued and unpaid interest or Liquidated
Damages thereon) at which it is to be redeemed pursuant to this Indenture.
"Registration Rights Agreement" means that certain Registration Rights
Agreement, dated as of the date of this Indenture, among the Company, the
Guarantors and the Initial Purchaser, as amended or supplemented from time to
time, or similar agreement relating to Additional Notes.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the March 1 or September 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means a global note substantially in the
form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of, and registered in the name
of, the Depositary or its nominee that will be issued in a denomination equal to
the outstanding principal amount of the Notes resold in reliance on Rule 904 of
Regulation S.
"Remote Guarantee" means a guarantee of a tenant's obligations under a
lease of real property which does not apply to obligations accruing in respect
of periods subsequent to the date on which the tenant surrenders possession of
the leased premises to the landlord (whether or not such surrender is authorized
by the terms of the lease), does not apply to any breach arising from any such
surrender and does not apply to any obligations that may have been accelerated
under the provisions of the lease.
"Responsible Officer" when used with respect to the Trustee, shall mean
any officer assigned to the Corporate Trust Office, including any managing
director, vice president, assistant vice president, assistant treasurer,
assistant secretary or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
having direct responsibility for the administration of this Indenture, and also,
with respect to a particular matter, any other officer, to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
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"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Period" means the 40 day distribution compliance period as
defined in Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"S Corporation" means a corporation that is treated as an "S
corporation" for federal income tax purposes.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Senior Debt" means Indebtedness of the Company or any of its
Restricted Subsidiaries that is not subordinated in right of payment to any
other Indebtedness of the Company or such Restricted Subsidiary.
"Shelf Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary that would be
a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date hereof.
"Special Record Date" means a date fixed by the Trustee for the payment
of any Defaulted Interest pursuant to Section 2.12 thereof.
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"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of at least a majority of the
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other Subsidiaries
of that Person (or a combination thereof) and (ii) any partnership (a) the sole
general partner or the managing general partner of which is such Person or a
Subsidiary of such Person or (b) the only general partners of which are such
Person or one or more Subsidiaries of such Person (or any combination thereof).
"Subsidiary Guarantee" means any guarantee of the obligations of the
Company pursuant to this Indenture and the Notes by any Person in accordance
with the provisions of this Indenture.
"Tax Distributions" means amounts paid or distributed to or for the
benefit of shareholders of the Company (net of amounts repaid by such
shareholders) pursuant to and in accordance with the Tax Payment Agreement as in
effect on the Closing Date.
"Tax Payment Agreement" means the Tax Payment Agreement, dated as of
the Closing Date, among the Company, Xxxxx Xxxxxx, Xxxxxx Xxxxxx,Xxxxxx Xxxxxx
(1994) Family Limited Partnership, Xxxxxxx Xxxxxx, and Xxxxx Xxxxxx and Xxxxxxxx
Xxxxxxxxxx, not individually but as trustees under that certain Trust Agreement
dated April 28, 1984 for the benefit of Xxxxxxx Xxxxxx and her descendants, and
any future shareholders of the Company that may become parties thereto.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77a-77bbbb) as in effect on the date on which this Indenture is qualified under
the TIA; provided, however, that in the event the Trust Indenture Act of 1939 is
amended after such date, then "TIA" means, to the extent required by such
amendment, the Trust Indenture Act of 1939 as so amended.
"Treasury Rate" means, at any time of computation, the yield to
maturity at such time (as compiled by and published in the most recent Federal
Reserve Statistical Release H.15(519), which has become publicly available at
least two business days prior to the date of the redemption notice or, if such
Statistical Release is no longer published, any publicly available source of
similar market data) of United States Treasury securities with a constant
maturity most nearly equal to the Make-Whole Average Life; provided, however,
that if the Make-Whole Average Life is not equal to the constant maturity of the
United States Treasury security for which a weekly average yield is given, the
Treasury Rate shall be obtained by
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linear interpolation (calculated to the nearest one-twelfth of a year) from the
weekly average yields of United States Treasury securities for which such yields
are given, except that if the Make-Whole Average Life is less than one year, the
weekly average yield on actually traded United States Treasury securities
adjusted to a constant maturity of one year shall be used.
"Trustee" means the party named as such above until a successor
replaces it in accordance with applicable provisions of this Indenture and
thereafter means such successor.
"Unrestricted Definitive Note" means one or more Definitive Notes that
do not bear and are not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a permanent global Note substantially
in the form of Exhibit A attached hereto that bears the Global Note Legend and
that has the "Schedule of Exchanges of Interests in the Global Note" attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary, representing Notes that do not bear the Private Placement
Legend.
"Unrestricted Investments Outstanding" means, at any time of
determination, in respect of any Permitted Investments made in any Person
pursuant to clause (vii) of the definition of the term Permitted Investments
(and any Investments (other than Committed Restricted Investments) made in such
Person by the Company or any of its Restricted Subsidiaries during the period
from August 30, 1999 to the Closing Date), the difference between (i) the sum of
all Permitted Investments theretofore made by the Company or any Restricted
Subsidiary in such Person on or after the date of the Indenture pursuant to
clause (vii) of the definition of Permitted Investments plus the sum of all
Investments (other than Committed Restricted Investments) made by the Company or
any Restricted Subsidiary in such Person during the period from August 30, 1999
to the Closing Date minus (ii) the sum of, without duplication, (a) the amount
of all dividends and distributions paid in cash by such Person after August 30,
1999 to the Company or a Restricted Subsidiary of the Company (to the extent
that the Company does not elect to include the amount of such dividends and
distributions in the computation of Consolidated Net Income pursuant to the
parenthetical of clause (i) of the definition thereof at the time of
determination), (b) all repayments after August 30, 1999 by such Person of the
principal amount of loans or advances that constitute Permitted Investments
theretofore made by the Company or any of its Restricted Subsidiaries in such
Person pursuant to clause (vii) of the definition of Permitted Investments or
that constitute loans or advances (other than Committed Restricted Investments)
made by the Company or any of its Restricted Subsidiaries in such Person during
the period from August 30, 1999 to the Closing Date, (c) any other reduction
made in cash of such Investments by the Company or any of its Restricted
Subsidiaries in such Person, (d) if any Permitted Investment made in such Person
by the Company or any of its Restricted Subsidiaries pursuant to clause (vii) of
the definition of the term Permitted Investments (or if any Investment (other
than Committed Restricted Investments) made in such Person by the Company or any
of its Restricted Subsidiaries during the period from August 30, 1999 to the
Closing Date) was in the form of a guarantee of Indebtedness, the amount of any
reduction in the maximum principal amount of Indebtedness
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that may be guaranteed under such guarantee, (e) if any Permitted Investment
made in such Person by the Company or any of its Restricted Subsidiaries
pursuant to clause (vii) of the definition of the term Permitted Investments (or
if any Investment (other than Committed Restricted Investments) made in such
Person by the Company or any of its Restricted Subsidiaries during the period
from August 30, 1999 to the Closing Date) was in the form of the furnishing of a
letter of credit as security for Indebtedness or other obligations, the amount
of any reduction in the maximum reimbursement obligations in respect of such
letter or credit, (f) if any Permitted Investment made in such Person by the
Company or any of its Restricted Subsidiaries pursuant to clause (vii) of the
definition of the term Permitted Investments (or if any Investment (other than
Committed Restricted Investments) made in such Person by the Company or any of
its Restricted Subsidiaries during the period from August 30, 1999 to the
Closing Date) was in the form of the guarantee of a lease, the amount of
amortization (as provided in the definition of "Investments") of such Investment
and (g) if any Permitted Investment made in such Person by the Company or any of
its Restricted Subsidiaries pursuant to clause (vii) of the definition of the
term Permitted Investments (or if any Investment (other than Committed
Restricted Investments) made in such Person by the Company or any of its
Restricted Subsidiaries during the period from August 30, 1999 to the Closing
Date) was in the form of a guarantee of obligations other than Indebtedness or a
lease, the amount of any reduction in the maximum liability under such
guarantee; provided that (x) the amount of Unrestricted Investments Outstanding
in respect of any Person in respect of such Investments shall at no time be a
negative amount and (y) the amount of Unrestricted Investments Outstanding in
respect of any Permitted Investments theretofore made in any Person pursuant to
clause (vii) of the definition of the term Permitted Investments (and any
Investments (other than Committed Restricted Investments) made in such Person by
the Company or any of its Restricted Subsidiaries during the period from August
30, 1999 to the Closing Date) shall be zero if, at the time of determination,
such Person is a Wholly-Owned Restricted Subsidiary of the Company.
"Unrestricted Subsidiary" means each of the Subsidiaries of the Company
listed on Schedule 3 to the Indenture and any other Subsidiary that, subject to
the provisions described in the penultimate paragraph of Section 4.10 hereof, is
designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a
Board Resolution, but only to the extent that such Subsidiary (a) is not party
to any agreement, contract, arrangement or understanding with the Company or any
Restricted Subsidiary of the Company unless the terms of any such agreement,
contract, arrangement or understanding comply with Section 4.12 hereof, (b) is a
Person with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (i) to subscribe for
additional Equity Interests or (ii) to maintain or preserve such Person's
financial condition or to cause such Person to achieve any specified levels of
operating results and (c) is not a guarantor of, and is not otherwise directly
or indirectly providing credit support for, any Indebtedness of the Company or
any of its Restricted Subsidiaries. Any such designation by the Board of
Directors shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing conditions and was permitted by Section 4.10 hereof. If, at any
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time, any Unrestricted Subsidiary would fail to meet the foregoing requirements
as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date (and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09 hereof, the Company shall be in
default of such Section). The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that such designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall only be permitted if (i) such
Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma
basis as if such designation had occurred at the beginning of the four-quarter
reference period, and (ii) no Default or Event of Default would be in existence
following such designation.
"U.S. Person" means a U.S. person as defined in Rule 902(k) under the
Securities Act.
"Voting Stock" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of at least a
majority of the directors, managers, trustees or other governing body of such
Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock and other Equity
Interests or other ownership interests (including convertible debt securities)
of which (other than directors' qualifying shares) shall at the time be owned by
such Person and/or by one or more Wholly Owned Restricted Subsidiaries of such
Person.
SECTION 1.02 Other Definitions
Defined
Term in Section
---- ----------
"Act" 1.07
"Affiliate Transaction" 4.12
"Asset Sale Offer" 3.10
"Change of Control Offer" 4.17
"Change of Control Payment" 4.17
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"Change of Control Payment Date" 4.17
"Contributor" 11.06
"Covenant Defeasance" 8.03
"DTC" 2.03
"Defaulted Interest" 2.12
"Excess Proceeds" 4.16
"Expiration Date" 4.17
"Funding Party" 11.06
"Guaranteed Obligations" 11.01
"incur" 4.09
"Legal Defeasance" 8.02
"Offer Amount" 3.10
"Offer Period" 3.10
"Paying Agent" 2.03
"Payment Default" 6.01
"Permitted Debt" 4.09
"Purchase Date" 3.10
"Registrar" 2.03
"Restricted Payments" 4.10
SECTION 1.03 Incorporation by Reference of Trust Indenture Act
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes and the Subsidiary Guarantees;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Notes means the Company, each Guarantor and any
successor obligors upon the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
SECTION 1.04 Rules of Construction
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Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act
or the Exchange Act shall be deemed to include substitute, replacement
or successor sections or rules adopted by the SEC from time to time.
SECTION 1.05 Compliance Certificates and Opinions
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant compliance with
which constitutes a condition precedent) relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that, in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion (other than the certificates required by
Section 4.05(a) hereof) with respect to compliance with a condition or covenant
provided for in this Indenture shall comply with the provisions of TIA ss.
314(e) and shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he
or she has made such examination or investigation as is necessary to
enable him or her to express
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an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.06 Form of Documents Delivered to Trustee
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representation
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel, may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.07 Acts of Holders
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to TIA ss. 315) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section 1.07.
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(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner that the Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by a register kept by the
Registrar.
(d) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to Board Resolution, fix in advance a record date
for the determination of such Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act or to revoke any
consent previously given, but the Company shall have no obligation to do so.
Notwithstanding TIA ss. 316(c), any such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
more than 30 days prior to the first solicitation of Holders generally in
connection therewith and no later than the date such solicitation is completed.
If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act or revocation of any consent
previously given may be given before or after such record date, but only the
Holders of record at the close of business on such record date shall be deemed
to be Holders for the purposes of determining whether Holders of the requisite
proportion of Notes then outstanding have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for this purpose the Notes then outstanding shall be computed as of
such record date; provided that no such request, demand, authorization,
direction, notice, consent, waiver or other Act by the Holders on such record
date shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than nine months after the record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Note shall bind every future Holder of
the same Note or the Holder of every Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, suffered or omitted to be done by the Trustee, any Paying Agent
or the Company in reliance thereon, whether or not notation of such action is
made upon such Note.
(f) All Notes issued pursuant to this Indenture shall vote as one class
on all matters.
ARTICLE 2.
THE NOTES
SECTION 2.01. Form and Dating.
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(a) General. The Notes and the Trustee's certificate of authentication
relating thereto shall be substantially in the form of Exhibit A attached hereto
with such appropriate insertions, substitutions and other variations as are
required or permitted by this Indenture. The Notes may have notations, legends
or endorsements required by law, stock exchange rule or usage, as designated by
the Company or its counsel. Each Note shall be dated the date of its
authentication. The Notes shall be in denominations of $1,000 and integral
multiples thereof.
(b) Global Notes. Notes issued in global form shall be substantially in
the form of Exhibit A attached hereto (including the Global Note Legend and the
"Schedule of Exchanges in the Global Note" attached thereto). Notes issued in
definitive form shall be substantially in the form of Exhibit A attached hereto
(but without the Global Note Legend and without the "Schedule of Exchanges of
Interests in the Global Note" attached thereto). Each Global Note shall
represent such of the outstanding Notes as shall be specified therein and the
aggregate principal amount of outstanding Notes represented thereby from time to
time shall be reflected on the records maintained by the Trustee. The aggregate
principal amount of outstanding Notes represented by a Global Note may from time
to time be reduced or increased, as appropriate, to reflect transfers,
exchanges, repurchases and redemptions. Any increase or decrease in the
aggregate principal amount outstanding of a Global Note shall be reflected on
the records maintained by the Trustee or the Note Custodian, at the direction of
the Trustee, in accordance with instructions given by the Holder thereof as
required by Section 2.06 hereof.
The provisions of the "Operating Procedures of Euroclear System" and
"Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Cedel Bank" and "Customer Handbook" of Cedel Bank shall be
applicable to transfers of beneficial interests in the Regulation S Global Note
that is held by the Agent Members through Euroclear and Cedel.
SECTION 2.02. Execution and Authentication.
Two Officers of the Company shall sign the Notes for the Company by
manual or facsimile signature.
If an Officer of the Company whose signature is on a Note no longer
holds that office at the time the Note is authenticated, the Note shall
nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature
of the Trustee. The signature of the Trustee shall be conclusive evidence that
the Note so authenticated has been duly authenticated and delivered hereunder.
The Trustee shall, upon a written order of the Company signed by two
Officers (an "Authentication Order"), authenticate Notes for original issue in
such principal amounts as may be specified in such Authentication Order(s),
provided that the issuance of Additional Notes shall be subject to satisfaction
of the conditions set forth in Section 2.15 hereof.
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The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. Unless limited by the terms of such appointment,
an authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with any Holder, the Company or an Affiliate of the Company. The
Trustee shall not be liable for any act or failure to act of the authenticating
agent to perform any duty either required herein or authorized herein to be
performed by such person in accordance with this Indenture. Each authenticating
agent shall be acceptable to the Company and otherwise comply in all respects
with the eligibility requirements of the Trustee contained in this Indenture.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented or surrendered for payment
("Paying Agent"). The Registrar shall keep a register of the Notes and of their
transfer and exchange. The Company may appoint one or more co-registrars and one
or more additional paying agents. The term "Paying Agent" includes any
additional paying agents. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company shall notify the Trustee in writing of
the name and address of any Agent not a party to this Indenture. If the Company
fails to appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such and shall be entitled to appropriate compensation in
accordance with Section 7.07 hereof. The Company or any of its Subsidiaries may
not act as Paying Agent or Registrar.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which shall incorporate the provisions of
the TIA. The agreement shall implement the provisions of this Indenture that
relate to such Agent. The Company initially appoints The Depository Trust
Company ("DTC") to act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Note Custodian with respect to the Global Notes.
SECTION 2.04. Paying Agent to Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all assets held by the Paying Agent for the payment of
principal of, premium or Liquidated Damages, if any, or interest on the Notes
(whether such assets have been distributed to it by the Company or any other
obligor on the Notes), and will notify the Trustee of any default by the Company
or any Guarantor in making any such payment. While any such default continues,
the Trustee may require a Paying Agent to pay all money held by it to the
Trustee. The Company at any time may require a Paying Agent to distribute all
assets held by it to the
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Trustee and account for any assets disbursed. Upon payment over and accounting
to the Trustee, the Paying Agent shall have no further liability for the assets.
Upon any bankruptcy or reorganization proceedings relating to the Company or any
Guarantor, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss.312(a). If the Trustee is not
the Registrar, the Company and/or the Guarantors shall furnish to the Trustee at
least seven Business Days before each Interest Payment Date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of the
Holders of Notes, including the aggregate principal amount of Notes held by each
Holder, and the Company and/or the Guarantors shall otherwise comply with TIA
ss.312(a).
SECTION 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Company for Definitive Notes if, and only if, either (i) the Company
delivers to the Trustee notice from the Depositary that it is unwilling or
unable to continue as depositary and a successor depositary is not appointed by
the Company within 90 days after the date of such notice from the Depositary,
(ii) the Company in its sole discretion determines that the Global Notes (in
whole but not in part) should be exchanged for Definitive Notes and delivers a
written notice to such effect to the Trustee or (iii) there shall have occurred
a Default or an Event of Default and any owner of a beneficial interest in a
Global Note so requests, then, upon surrender by the Global Note Holder of a
Global Note, Notes in the form of Definitive Notes will be issued to each person
that the Global Note Holder and the Depositary identify as being the beneficial
owner of the related Notes. Upon the occurrence of any of the preceding events
in (i), (ii) or (iii) above, Definitive Notes shall be issued in such names as
the Depositary shall instruct the Trustee. Global Notes also may be exchanged or
replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof.
Every Note authenticated and delivered in exchange for, or in lieu of, a Global
Note or any portion thereof, pursuant to Section 2.07 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Note. A
Global Note may not be exchanged for another Note other than as provided in this
Section 2.06(a), however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes.
The transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures.
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Beneficial interests in the Restricted Global Notes shall be subject to
restrictions on transfer comparable to those set forth herein to the extent
required by the Securities Act. Transfers of beneficial interests in the Global
Notes also shall require compliance with either subparagraph (i) or (ii) below,
as applicable, as well as one or more of the other following subparagraphs as
applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend.
Beneficial interests in any Unrestricted Global Note may be
transferred only to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders
or instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of
beneficial interests (other than a transfer of a beneficial interest
in a Global Note to a Person who takes delivery thereof in the form of
a beneficial interest in the same Global Note), the transferor of such
beneficial interest must deliver to the Registrar either (A) (1) a
written order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Procedures directing
the Depositary to credit or cause to be credited a beneficial interest
in another Global Note in an amount equal to the beneficial interest
to be transferred or exchanged and (2) instructions given in
accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or
(B) (1) a written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable Procedures
directing the Depositary to cause to be issued a Definitive Note in an
amount equal to the beneficial interest to be transferred or exchanged
and (2) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such
Definitive Note shall be registered to effect the transfer or exchange
referred to in (1) above. Upon consummation of an Exchange Offer by
the Company in accordance with Section 2.06(f) hereof, the
requirements of this Section 2.06(b)(ii) shall be deemed to have been
satisfied upon receipt by the Registrar of the instructions contained
in the Letter of Transmittal delivered by the Holder of such
beneficial interests in the Restricted Global Notes. Upon satisfaction
of all of the requirements for transfer or exchange of beneficial
interests in Global Notes contained in this Indenture and the Notes
and otherwise applicable under the Securities Act, the Trustee shall
adjust the principal amount of the relevant Global Note(s) pursuant to
Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note may
be transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global
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Note if the transfer complies with the requirements of clause (ii)
above and the Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor
must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Note, then the transferee
must deliver a certificate in the form of Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3)(d) thereof, if applicable.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may
be exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
clause (ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a Broker-Dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Note, a certificate from such
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holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form of Exhibit
B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are
no longer required in order to maintain compliance with the
Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or
(D) above at a time when an Unrestricted Global Note has not yet been
issued, the Company shall issue and, upon receipt of an authentication
order in accordance with Section 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of beneficial interests
transferred pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in
the form of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(i) Beneficial Interest in Restricted Global Notes to Restricted
Definitive Notes. If any holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifica tions in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
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(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with
Rule 903 or Rule 904 under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other
than those listed in subparagraphs (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in
item (3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
2.06(h) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions
a Definitive Note in the appropriate principal amount. Any Definitive
Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.06(c) shall be registered in
such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct
the Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Trustee shall deliver such
Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section
2.06(c)(i) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
(ii) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial
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interest for an Unrestricted Definitive Note or may transfer such
beneficial interest to a Person who takes delivery thereof in the form
of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the case
of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not
(1) a Bro ker-Dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Definitive Note that does not bear the
Private Placement Legend, a certificate from such holder in
the form of Exhibit C hereto, including the certifications
in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of a Definitive Note that does not bear the Private
Placement Legend, a certificate from such holder in the form
of Exhibit B hereto, including the certifications in item
(4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the
Company, to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are
no longer required in order to maintain compliance with the
Securities Act.
(iii) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section
2.06(b)(ii) hereof,
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the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
2.06(h) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions
a Definitive Note in the appropriate principal amount. Any Definitive
Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iii) shall be registered in such name or names and in
such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section
2.06(c)(iii) shall not bear the Private Placement Legend. A beneficial
interest in an Unrestricted Global Note cannot be exchanged for a
Definitive Note bearing the Private Placement Legend or transferred to
a Person who takes delivery thereof in the form of a Definitive Note
bearing the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(i) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred
to a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred
to a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904 under the Securities Act, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(a) thereof;
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(E) if such Restricted Definitive Note is being transferred
to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable;
(F) if such Restricted Definitive Note is being transferred
to the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or
cause to be increased the aggregate principal amount of, in the case
of clause (A) above, the appropriate Restricted Global Note, in the
case of clause (B) above, the 144A Global Note, in the case of clause
(C) above, the Regulation S Global Note, and in the case of clause (E)
above, the IAI Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Restricted Definitive Note to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
Broker-Dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
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(1) if the Holder of such Definitive Notes proposes to
exchange such Notes for a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications
in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery
thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit B hereto, including the certifications
in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the
Company to the effect that such exchange or transfer is in
compliance with the Securities Act, that the restrictions on
transfer contained herein and in the Private Placement Legend are
not required in order to maintain compliance with the Securities
Act, and such Definitive Notes are being exchanged or transferred
in compliance with any applicable blue sky securities laws of any
State of the United States.
Upon satisfaction of the conditions of any of the subparagraphs
in this Section 2.06(d)(ii), the Trustee shall cancel the Definitive
Notes and increase or cause to be increased the aggregate principal
amount of the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (ii)(B),
(ii)(D) or (iii) above at a time when an Unrestricted Global Note has
not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the
Trustee shall authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of Definitive
Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.06(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to
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the Registrar the Definitive Notes duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly executed by
such Holder or by his attorney, duly authorized in writing. In addition, the
requesting Holder shall provide any additional certifications, documents and
information, as applicable, pursuant to the provisions of this Section 2.06(e).
(i) Restricted Definitive Notes to Restricted Definitive Notes.
Any Restricted Definitive Note may be transferred to and registered in
the name of Persons who take delivery thereof in the form of a
Restricted Definitive Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under
the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or
Rule 904, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item
(2) thereof; and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities
Act, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3) thereof, if
applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive
Notes. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
Broker-Dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
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(1) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for an Unrestricted
Definitive Note, a certificate from such Holder in the form
of Exhibit C hereto, including the certifications in item
(1)(a) thereof; or
(2) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit
B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Company
to the effect that such exchange or transfer is in compliance
with the Securities Act, that the restrictions on transfer
contained herein and in the Private Placement Legend are not
required in order to maintain compliance with the Securities Act,
and such Restricted Definitive Note is being exchanged or
transferred in compliance with any applicable blue sky securities
laws of any State of the United States.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of a request for such a
transfer, the Registrar shall register the Unrestricted Definitive
Notes pursuant to the instructions from the Holder thereof.
Unrestricted Definitive Notes cannot be exchanged for or transferred
to Persons who take delivery thereof in the form of a Restricted
Definitive Note.
(f) Exchange Offer. Upon the consummation of an Exchange Offer, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.02, the Trustee shall authenticate (i) one or more Unrestricted
Global Notes in an aggregate principal amount equal to the principal amount of
the beneficial interests in the Restricted Global Notes tendered for acceptance
by Persons that certify in the applicable Letter of Transmittal that (x) they
are not Broker-Dealers, (y) they are not participating in the distribution of
the Exchange Notes and (z) they are not affiliates (as defined in Rule 144) of
the Company, and accepted for exchange in the Exchange Offer and (ii) Definitive
Notes in an aggregate principal amount equal to the principal amount of the
Restricted Definitive Notes accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Notes, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Company shall execute and the Trustee shall
authenticate and deliver to the Persons designated by the Holders of Definitive
Notes so accepted Definitive Notes in the appropriate principal amount.
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(g) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global
Note and each Definitive Note (and all Notes issued in exchange
therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURI TIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT
OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT), (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO THE COMPANY 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 (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR
HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (D)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH RULE 904 OF 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. IN CONNECTION WITH ANY
TRANSFER OF THIS SECURITY WITHIN ONE YEAR AFTER THE ORIGINAL ISSUANCE
OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY
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REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT."
(B) Notwithstanding the foregoing, any Global Note or Definitive
Note issued pursuant to subparagraphs (b)(iv), (c)(ii), (c)(iii),
(d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this Section 2.06 (and
all Notes issued in exchange therefor or substitution thereof) shall
not bear the Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE
TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE
MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF
THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY."
(h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Note shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who will take delivery thereof
in the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note, by the
Trustee or by the Depositary at the direction of the Trustee, to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note, by the Trustee or by the
Depositary at the direction of the Trustee, to reflect such increase.
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(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes
and Definitive Notes upon the Company's order or at the Registrar's
request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.07, 3.10, 4.16, 4.17
and 9.05 hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in
part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to register
the transfer of or to exchange Notes during a period beginning at the
opening of business 15 days before the day of any selection of Notes
for redemption under Section 3.02 hereof and ending at the close of
business on the day of selection, (B) to register the transfer of or
to exchange any Note so selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part or
(C) to register the transfer of or to exchange a Note between a record
date and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer
of any Note, the Trustee, any Agent and the Company may deem and treat
the Person in whose name any Note is registered as the absolute owner
of such Note for the purpose of receiving payment of principal of and
interest on such Notes and for all other purposes, and none of the
Trustee, any Agent or the Company shall be affected by notice to the
contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.02 hereof.
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(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section
2.06 to effect a transfer or exchange may be submitted by facsimile.
SECTION 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company or
the Trustee and the Company receive evidence to their satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee,
upon the written order of the Company signed by two Officers of the Company,
shall authenticate a replacement Note if the Trustee's and the Company's
requirements are met. If required by the Trustee or the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Company and the Trustee may charge for their expenses in replacing
a Note. If after the delivery of such new Note, a bona fide purchaser of the
original Note in lieu of which such new Note was issued presents for payment
such original Note, the Company and the Trustee shall be entitled to recover
such new Note from the person to whom it was delivered or any transferee
thereof, except a bona fide purchaser, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any loss, damage, cost
or expense incurred by the Company or the Trustee in connection therewith.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
SECTION 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee hereunder in accordance with the provisions hereof, and those described
in this Section 2.08 as not outstanding. Except as set forth in Section 2.09
hereof, a Note does not cease to be outstanding because either of the Company or
an Affiliate of the Company holds a Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on the Redemption Date or maturity date, money sufficient to pay
all principal, premium, if any,
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interest and Liquidated Damages, if any, payable on that date on the Notes (or
the portion thereof to be redeemed or maturing, as the case may be), then on and
after that date such Notes (or a portion thereof) shall be deemed to be no
longer outstanding and shall cease to accrue interest.
SECTION 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or any Affiliate of the Company, shall be considered as though not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes that a Responsible Officer of the Trustee actually knows are so owned
shall be so disregarded. The Company shall notify the Trustee, in writing, when
the Company or any of its Affiliates repurchases or otherwise acquires Notes and
the aggregate principal amount of such Notes so repurchased or otherwise
acquired.
SECTION 2.10. Temporary Notes.
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee upon receipt of an Authentication Order,
shall authenticate and deliver temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company and the Trustee consider appropriate for temporary Notes. Without
unreasonable delay, upon receipt of an Authentication Order, the Company shall
prepare and the Trustee shall authenticate and deliver definitive Notes in
exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the rights,
benefits and privileges of this Indenture.
SECTION 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation, except as expressly
permitted by this Indenture. The Company may not issue new Notes to replace
Notes that it has redeemed or paid or that have been delivered to the Trustee
for cancellation. All cancelled Notes held by the Trustee shall be destroyed
(subject to the record retention requirement of the Exchange Act). Certification
of the destruction of all cancelled Notes shall be delivered to the Company. The
Company may not issue new Notes to replace Notes that it has paid or that have
been delivered to the Trustee for cancellation.
SECTION 2.12. Defaulted Interest.
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Interest on any Note which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Note is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date and interest on such
defaulted interest at the applicable interest rate borne by the Notes, to the
extent lawful (such defaulted interest (and interest thereon) herein
collectively called "Defaulted Interest") shall forthwith cease to be payable to
the Holder on the relevant Regular Record Date by virtue of having been such
Holder; and such Defaulted Interest shall be paid by the Company to the Persons
in whose names the Notes are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall give the Trustee at least 15 days'
written notice (unless a shorter period is acceptable to the Trustee for its
convenience) of the amount of Defaulted Interest proposed to be paid on each
Note and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held by the Trustee in
trust for the benefit of the Persons entitled to such Defaulted Interest as is
provided in this Section 2.12. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall not be more than 15
days and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date. In the name and at the expense of the Company, the Trustee shall cause
notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each Holder at his
address as it appears in the Registrar, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Notes are registered at
the close of business on such Special Record Date.
Subject to the foregoing provisions of this Section 2.12, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
SECTION 2.13 CUSIP Number
The Company in issuing the Notes shall use a CUSIP number, and the
Trustee shall use the CUSIP number in notices of redemption or exchange as a
convenience to Holders of Notes; provided, however, that no representation is
hereby deemed to be made by the Trustee as to the correctness or accuracy of the
CUSIP number printed in the notice or on the certificates representing the
Notes, and that reliance may be placed only on the
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other identification numbers printed on the certificates representing the Notes.
The Company will promptly notify the Trustee of any change in a CUSIP number.
SECTION 2.14 Deposit of Moneys
On each Interest Payment Date and each date on which payments in
respect of the Notes are required to be made pursuant to the terms of this
Indenture, the Company shall, not later than 12:00 noon (New York City time),
deposit with the Paying Agent in immediately available funds money sufficient to
make any cash payments due on such date in a timely manner which permits the
Paying Agent to remit payment to the Holders on such date.
SECTION 2.15 Issuance of Additional Notes
The Company shall be entitled to issue Additional Notes under this
Indenture which shall have identical terms as the Notes issued on September 28,
1999, other than with respect to the date of issuance, issue price and amount of
interest payable on the first payment date applicable thereto (and, if such
Additional Notes shall be issued in the form of Exchange Notes, other than with
respect to transfer restrictions); provided, that such issuance is not
prohibited by Section 4.09 hereof.
With respect to any Additional Notes, the Company shall set forth in a
resolution of the Board of Directors and in an Officers' Certificate, a copy of
each which shall be delivered to the Trustee, the following information:
(A) the aggregate principal amount of such Additional Notes to be
authenticated and delivered pursuant to this Indenture;
(B) the issue price, the issue date and the CUSIP number of such
Additional Notes and the amount of interest payable on the first
payment date applicable thereto; provided, however, that no Additional
Notes may be issued at a price that would cause such Additional Notes
to have "original issue discount" within the meaning of Section 1273
of the Code;
(C) whether such Additional Notes shall be transfer restricted
securities and issued in the form of Notes or shall be registered
securities issued in the form of Exchange Notes as set forth in
Section 2.06 hereof; and
Any Additional Notes shall vote, together with any Notes previously
issued pursuant to this Indenture, as one class for all matters.
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ARTICLE 3.
REDEMPTION AND OFFERS TO PURCHASE
SECTION 3.01 Applicability of Article
Redemption of Notes at the election of the Company shall be made in
accordance with this Article 3.
SECTION 3.02 Election to Redeem; Notice to Trustee
The election of the Company to redeem any Notes pursuant to Section
3.08 hereof shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company, the Company shall, simultaneously with providing
the notice to Holders specified in Section 3.08 hereof, notify the Trustee of
the Redemption Date and of the principal amount of Notes intended to be
redeemed.
SECTION 3.03 Selection of Notes to Be Redeemed
If less than all of the Notes are to be redeemed at any time, selection
of Notes for redemption shall be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot
or by such method as the Trustee shall deem fair and appropriate; provided that
no Notes of $1,000 or less shall be redeemed in part.
The Trustee shall promptly notify the Company and the Registrar (if
other than the Trustee) in writing of the Notes selected for redemption and, in
the case of any Notes 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 Notes shall relate, in the
case of any Note redeemed or to be redeemed only in part, to the portion of the
principal amount of such Note which has been or is to be redeemed.
SECTION 3.04 Notice of Redemption
Notices of redemption shall be mailed by first class mail, postage
prepaid, at least 30 but not more than 60 days before the Redemption Date to
each Holder of Notes to be redeemed at such Holder's registered address. If any
Note is to be redeemed in part only, the notice of redemption that relates to
such Note shall state the portion of the principal amount thereof to be
redeemed.
All notices of redemption shall state:
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(1) the Redemption Date;
(2) the Redemption Price, separately stating the amount of any
accrued and unpaid interest and Liquidated Damages, if any, to be paid
in connection with the redemption;
(3) if less than all Notes then outstanding are to be redeemed,
the identification (and, in the case of a Note to be redeemed in part,
principal amount) of such Note to be redeemed;
(4) that on the Redemption Date the Redemption Price, plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to
the Redemption Date, will become due and payable upon each such Note
or portion thereof, and that (unless the Company shall default in
payment of the Redemption Price and accrued interest and Liquidated
Damages, if any, thereon) interest and Liquidated Damages, if any,
thereon shall cease to accrue on or after said date;
(5) the place or places where such Notes are to be surrendered
for payment of the Redemption Price and accrued interest and
Liquidated Damages, if any, thereon;
(6) that Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price, plus accrued and unpaid
interest and Liquidated Damages, if any, thereon to the Redemption
Date;
(7) the CUSIP number, if any, relating to such Notes; and
(8) in the case of a Note to be redeemed in part, the principal
amount of such Note to be redeemed and that after the Redemption Date
upon surrender of such Note, a new Note or Notes in the aggregate
principal amount equal to the unredeemed portion thereof will be
issued.
At the Company's request, the Trustee shall give the notice of
redemption in the name of the Company and at the Company's expense: provided,
however, that the Company shall deliver to the Trustee, at least 5 business days
prior to the date the Company is requesting notice be given to the Holders
(unless a shorter notice period shall be satisfactory to the Trustee for its
convenience), an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
SECTION 3.05 Deposit of Redemption Price
On or prior to any Redemption Date, the Company shall deposit with the
Trustee (to the extent not already held by the Trustee) or with the Paying Agent
an amount of money in same day funds (or New York Clearing House funds if such
deposit is made prior to the
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applicable Redemption Date) sufficient to pay the Redemption Price of, and
accrued and unpaid interest and Liquidated Damages, if any, to the Redemption
Date, on all Notes or portions thereof which are to be redeemed on that date.
SECTION 3.06 Notes Payable on Redemption Date
Notice of redemption having been given as aforesaid, the Notes so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the Redemption Date, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest and Liquidated Damages, if any, thereon) such Notes shall cease
to bear interest and Liquidated Damages, if any. Any such Note surrendered for
redemption in accordance with said notice shall be paid by the Company at the
Redemption Price, plus accrued and unpaid interest and Liquidated Damages, if
any, thereon to the Redemption Date; provided, however, that installments of
interest and Liquidated Damages, if any, whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Notes, registered as
such on the relevant Regular Record Dates according to the terms and provisions
of Section 2.12 hereof.
If any Note called for redemption shall not be so paid in accordance
with the terms hereof, the principal thereof (and premium, if any, thereon)
shall, until paid, bear interest and Liquidated Damages, if any, from the
Redemption Date at the rate borne by such Note.
SECTION 3.07 Notes Redeemed in Part
Any Note which is to be redeemed only in part shall be surrendered at
the office or agency of the Company maintained for such purpose pursuant to
Section 4.02 hereof (with, if the Company, the Registrar or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company, the Registrar or the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and a new Note in
principal amount equal to the unredeemed portion will be issued in the name of
the Holder thereof upon cancellation of the original Note. On and after the
Redemption Date, unless the Company defaults in payment of the Redemption Price
and accrued interest and Liquidated Damages, if any, thereon, interest and
Liquidated Damages, if any, shall cease to accrue on Notes or portions thereof
called for redemption.
SECTION 3.08 Optional Redemption
On or after September 15, 2004, the Notes will be subject to redemption
at any time at the option of the Company, in whole or in part, upon not less
than 30 nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below, plus accrued and unpaid
interest and Liquidated Damages, if any, thereon to the applicable Redemption
Date, if redeemed during the twelve-month period beginning on September 15 of
the years indicated below:
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Year Percentage
---- ----------
2004..................................... 105.500%
2005..................................... 103.667%
2006..................................... 101.833%
2007 and thereafter...................... 100.000%
On or prior to September 15, 2002, the Company may on any one or more
occasions redeem up to 35% of the aggregate principal amount of the Notes
originally issued under this Indenture, including any Additional Notes issued
under this Indenture, at a redemption price equal to 111.000% of the principal
amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any,
thereon, to the Redemption Date, with the net cash proceeds of one or more
Public Equity Offerings; provided that (i) at least 65% of the aggregate
principal amount of the Notes originally issued under this Indenture, including
any Additional Notes issued under this Indenture, remain outstanding immediately
following each such redemption and (ii) such redemption shall occur within 60
days of the closing of each such Public Equity Offering.
At any time prior to September 15, 2004, the Notes will be subject to
redemption at the option of the Company, in whole or in part, upon not less than
30 nor more than 60 days' notice, at the Make-Whole Price, plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the applicable
Redemption Date.
SECTION 3.09 Mandatory Redemption
Except as set forth under Sections 3.10, 4.16 and 4.17 hereof, the
Company shall not be required to make any mandatory redemption or sinking fund
payments with respect to the Notes.
SECTION 3.10 Offer to Purchase by Application of Excess Proceeds
In the event that, pursuant to Section 4.16 hereof, the Company shall
be required to make an offer to all Holders of Notes to purchase Notes (an
"Asset Sale Offer"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for at least 30 and not more
than 40 days, except to the extent that a longer period is required by
applicable law (the "Offer Period"). On a date within five Business Days after
the termination of the Offer Period (the "Purchase Date"), the Company shall
purchase the principal amount of Notes required to be purchased pursuant to
Section 4.16 hereof (the "Offer Amount") or, if less than the Offer Amount has
been tendered, all Notes tendered in response to the Asset Sale Offer.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and
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regulations thereunder to the extent such laws and regulations are applicable in
connection with the repurchase of Notes pursuant to an Asset Sale Offer.
If the Purchase Date is on or after a Regular Record Date and on or
before the related Interest Payment Date, any accrued and unpaid interest and
Liquidated Damages, if any, shall be paid to the Person in whose name a Note is
registered at the close of business on such Regular Record Date, and no
additional interest or Liquidated Damages, if any, shall be payable to Holders
who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall send,
by first class mail, a notice to each of the Holders, with a copy to the
Trustee. The notice shall contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset
Sale Offer shall be made to all Holders. The notice, which shall govern the
terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 3.10 and Section 4.16 hereof and the length of time the Asset
Sale Offer shall remain open;
(b) the Offer Amount, the purchase price, separately stating the
amount of any accrued and unpaid interest and Liquidated Damages, if
any, and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall
remain outstanding and continue to accrue interest and Liquidated
Damages, if any;
(d) that, unless the Company defaults in making such payment, any
Note accepted for payment pursuant to the Asset Sale Offer shall cease
to accrue interest and Liquidated Damages, if any, on the Purchase
Date;
(e) that Holders electing to have a Note purchased pursuant to
any Asset Sale Offer shall be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of
the Note completed, or transfer by book-entry transfer, to the
Company, a depositary, if appointed by the Company, or a Paying Agent
at the address specified in the notice not later than the last
Business Day of the Offer Period;
(f) that Holders shall be entitled to withdraw their tendered
Notes and their election to require the Company to purchase such
Notes, provided that the Company, the depositary or the Paying Agent,
as the case may be, receives, not later than the close of business on
the last Business Day of the Offer Period, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Notes the Holder tendered for purchase,
and a statement that such Holder is withdrawing his tendered Notes and
his election to have such Notes purchased;
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(g) that, if the aggregate principal amount of Notes properly
tendered by Holders exceeds the Offer Amount, the Trustee shall select
the Notes to be purchased on a pro rata basis (with such adjustments
as may be deemed appropriate by the Trustee so that only Notes in
denominations of $1,000, or integral multiples thereof, shall be
purchased); and
(h) that Holders whose Notes are being purchased only in part
shall be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry
transfer).
On or before noon (New York City time) on each Purchase Date, the
Company shall irrevocably deposit with the Trustee or Paying Agent in
immediately available funds the aggregate purchase price with respect to a
principal amount of Notes equal to the Offer Amount (of, if less than the Offer
Amount has been properly tendered, such lesser amount as shall equal the
principal amount of Notes properly tendered), together with accrued and unpaid
interest and Liquidated Damages, if any, thereon to the Purchase Date, to be
held for payment in accordance with the terms of this Section 3.10. On or before
the Purchase Date, the Company shall, to the extent lawful, (i) accept for
payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes
or portions thereof tendered pursuant to the Asset Sale Offer, or if less than
the Offer Amount has been tendered, all Notes tendered, (ii) deliver or cause
the Paying Agent or depositary, as the case may be, to deliver to the Trustee
Notes so accepted and (iii) deliver to the Trustee an Officers' Certificate
stating that such Notes or portions thereof were accepted for payment by the
Company in accordance with the terms of this Section 3.10. The Company, the
depositary or the Paying Agent, as the case may be, shall promptly (but in any
case not later than three Business Days after the Purchase Date) mail or deliver
to each tendering Holder whose Notes are to be purchased an amount equal to the
purchase price of the Notes tendered by such Holder and accepted by the Company
for purchase, plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the Purchase Date, and the Company shall promptly issue a new Note,
and the Trustee, upon written request from the Company, shall authenticate and
mail or deliver such new Note to such Holder, equal in principal amount to any
unpurchased portion of the Note surrendered. Any Note not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof.
ARTICLE 4.
COVENANTS
SECTION 4.01 Payment of Notes
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest on, the Notes on the dates and in the manner provided in the
Notes and in this Indenture. Principal, premium, if any, and interest shall be
considered paid on the date due
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if the Paying Agent, if other than the Company or any of its Subsidiaries or
Affiliates, holds as of 12:00 noon (New York City time) on the due date money
deposited by the Company in immediately available funds and designated for and
sufficient to pay all principal, premium and interest then due. The Company
shall pay all Liquidated Damages, if any, in the same manner on the dates and in
the amounts set forth in the Registration Rights Agreement. If any Liquidated
Damages become payable, the Company shall not later than three Business Days
prior to the date that any payment of Liquidated Damages is due (i) deliver an
Officers' Certificate to the Trustee setting forth the amount of Liquidated
Damages payable to Holders and (ii) instruct the Paying Agent to pay such amount
of Liquidated Damages to Holders entitled to receive such Liquidated Damages.
The Company shall pay interest (including post-petition interest under
any Bankruptcy Law) on overdue principal and premium, if any, from time to time
on demand at a rate equal to 1% per annum in excess of the then applicable
interest rate on the Notes to the extent lawful; the Company shall pay interest
(including post-petition interest under any Bankruptcy Law) on overdue
installments of interest and Liquidated Damages (without regard to any
applicable grace period) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
SECTION 4.02 Maintenance of Office or Agency
The Company will maintain, in The City of New York, an office or agency
(which may be an office of the Trustee or Registrar) where Notes may be
presented or surrendered for payment, where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Notes 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 Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may from time to time designate one or more other offices
or agencies (in or outside of The City of New York) where the Notes may be
presented or surrendered for any or all such purposes, and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in The City of New York for such purposes. 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.
SECTION 4.03 Money for Security Payments to be Held in Trust
Whenever the Company shall have one or more Paying Agents for the
Notes, it will, on or before each due date of the principal of, premium, if any,
or interest or Liquidated
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Damages, if any, on any Notes, deposit with a Paying Agent a sum in same day
funds (or New York Clearing House funds if such deposit is made prior to the
date on which such deposit is required to be made) sufficient to pay the
principal, premium, if any, and interest and Liquidated Damages, if any, so
becoming due (or at the option of the Company, payment of interest and
Liquidated Damages, if any, may be made by check mailed to the Holders of the
Notes at their respective addresses set forth in the register of Holders of
Notes; provided that all payments on the Global Notes and all payments of
principal, premium, interest and Liquidated Damages, if any, on the Definitive
Notes, the holders of which have given wire transfer instructions to the Company
or the Paying Agent at least five Business Days prior to the applicable payment
date, shall be made by wire transfer in same day funds), such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest or Liquidated Damages, if any, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of such action or any
failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section 4.03,
that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of,
premium, if any, and interest and Liquidated Damages, if any, on
Notes in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any
other obligor upon the Notes) in the making of any payment of
principal, premium, if any, or interest or Liquidated Damages, if
any;
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all respects with the
provisions of this Indenture relating to the duties, rights and
obligations of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
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Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest or Liquidated Damages, if any, on any Note and remaining unclaimed
for two years after such principal, premium, if any, or interest or Liquidated
Damages, if any, has become due and payable shall be paid to the Company on
Company Request or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, shall at the expense of the Company cause notice to be promptly sent
to each Holder that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 4.04 Reports
(a) Whether or not required by the rules and regulations of the SEC, so
long as any Notes are outstanding, the Company shall furnish to the Holders of
Notes (i) all quarterly and annual financial information that would be required
to
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be contained in a filing with the SEC on Forms 10-Q and 10-K if the Company were
required to file such forms, including a "Management's Discussion and Analysis
of Financial Condition and Results of Operations" that describes the financial
condition and results of operations of the Company and its consolidated
Subsidiaries (showing in reasonable detail, either on the face of the financial
statements or in the footnotes thereto, the financial condition and results of
operations of the Company and its Restricted Subsidiaries separate from the
financial information and results of operations of the Unrestricted Subsidiaries
of the Company) and, with respect to the annual information only, a report on
said financial statements (including the footnotes thereto) by the Company's
then certified independent accountants and (ii) all current reports that would
be required to be filed with the SEC on Form 8-K if the Company were required to
file such reports. In addition, whether or not required by the rules and
regulations of the SEC, the Company shall (without being required to register
the Notes under Section 12 of the Exchange Act) file a copy of all such
information and reports with the SEC for public availability (unless the SEC
will not accept such a filing) and make such information available to securities
analysts and prospective investors upon request. The Company and its Restricted
Subsidiaries shall, for so long as any Notes remain outstanding, furnish to the
Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act. The Company shall also comply with the provisions of
TIA ss.314(a).
(b) If the Company instructs the Trustee to distribute any of the
documents described in clause (a) above to the Holders of Notes, the Company
shall provide the Trustee with a sufficient number of copies of all documents
that the Company may be required to deliver to the Holders of Notes under this
Section 4.04. Any such distribution by the Trustee pursuant to this clause (b)
shall be at the expense of the Company.
SECTION 4.05 Compliance Certificate
(a) The Company and each Guarantor shall deliver to the Trustee, within
90 days after the end of each fiscal year ending after the date hereof, an
Officers' Certificate stating, as to each Officer signing such certificate, that
a review of the activities of the company and its subsidiaries during the
preceding fiscal year has been conducted under his or her supervision and that
to the best of his or her knowledge each entity is not in default in the
performance or observance of any terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default shall exist, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto). For
purposes of this Section 4.05, such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.04(a) above shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that, in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article Four or Article Five hereof or, if any such violation
has occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are outstanding,
upon becoming aware of any Default or Event of Default, deliver to the Trustee
an Officers' Certificate specifying such Default or Event of Default and what
action the Company is taking or proposes to take with respect thereto.
SECTION 4.06 Taxes
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all material taxes, assessments and
governmental charges levied or imposed upon it or any Subsidiary or upon the
income, profits or property of the Company or any of its Subsidiaries and (b)
all material lawful claims for labor, materials and supplies, which, if unpaid,
might by law become a Lien upon the property of the Company or any of its
Subsidiaries that could produce a material adverse effect on the consolidated
financial condition 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 whose amount, applicability or validity is
being contested in good faith by appropriate
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proceedings and in respect of which appropriate reserves (in the good faith
judgment of management of the Company) are being maintained in accordance with
GAAP.
SECTION 4.07 Stay, Extension and Usury Laws
The Company and each Guarantor covenants (to the extent that it may
lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company and
each Guarantor (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it shall
not, by resort to any such law, hinder, delay or impede the execution of any
power herein granted to the Trustee, but shall suffer and permit the execution
of every such power as though no such law has been enacted.
SECTION 4.08 Corporate Existence; Maintenance
of Properties and Insurance
Subject to Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Restricted Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or any
such Restricted Subsidiary and (ii) its (and its Restricted Subsidiaries')
rights (charter and statutory), licenses and franchises; provided, however, that
the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its
Restricted Subsidiaries, if the Board of Directors or management of the Company
shall determine in good faith that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders of Notes.
With such exceptions, if any, as are not material in the aggregate and
are not adverse in any material respect to the Holders of Notes, the Company
shall, and shall cause each of its Subsidiaries to, maintain its properties in
good working order and condition (subject to ordinary wear and tear) and make
all reasonably necessary repairs, renewals, replacements, additions and
improvements required for it to actively conduct and carry on its business.
The Company shall maintain insurance against loss or damage of the
kinds that, in the good faith judgment of the Company, are adequate and
appropriate for the conduct of the business of the Company and its Subsidiaries
in a prudent manner, with reputable insurers or with the government of the
United States of America or an agency or instrumentality thereof, in such
amounts, with such deductibles, and by such methods as shall be customary, in
the good faith judgment of the Company, for companies similarly situated in the
industry.
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SECTION 4.09 Limitation on the Incurrence of Indebtedness and
Issuance of Preferred Stock
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Debt) and the Company shall not permit any of its Restricted Subsidiaries to
issue any shares of Preferred Stock (other than to the Company or a Wholly Owned
Restricted Subsidiary of the Company); provided, however, that the Company and
the Guarantors may incur Indebtedness (including Acquired Debt) if the
Consolidated Interest Coverage Ratio of the Company for the Company's most
recently ended four full fiscal quarters for which internal financial statements
are available immediately preceding the date on which such additional
Indebtedness is incurred would have been at least 2.50 to 1, determined on a pro
forma basis, as if the additional Indebtedness had been incurred at the
beginning of such four-quarter period and no Default or Event of Default shall
have occurred and be continuing at the time of, or would occur after giving
effect on a pro forma basis to, such incurrence.
The provisions of the first paragraph of this Section 4.09 shall not
apply to the incurrence of any of the following items of Indebtedness
(collectively, "Permitted Debt"):
(i) the incurrence by the Company and the Guarantors of
Indebtedness under (A) the Credit Facility, (B) Capital Lease
Obligations or (C) purchase money or mortgage financings; provided
that the aggregate amount of all Indebtedness (with letters of credit
being deemed for all purposes of this Indenture to have a principal
amount equal to the maximum potential liability of the Company and its
Restricted Subsidiaries in respect thereof) outstanding under this
clause (i) after giving effect to such incurrence, including all
Permitted Refinancing Indebtedness incurred to refund, refinance or
replace any Indebtedness incurred pursuant to this clause (i), does
not exceed a principal amount equal to $75.0 million less the
aggregate principal amount of all Indebtedness permanently repaid with
the Net Proceeds of any Asset Sale;
(ii) the incurrence by the Company and the Guarantors of
Indebtedness represented by the Notes, the Guarantees thereof and this
Indenture in the principal amount of Notes originally issued on the
Closing Date;
(iii) the incurrence by the Company and its Restricted
Subsidiaries of the Existing Indebtedness;
(iv) the incurrence by the Company and the Guarantors of
additional Indebtedness (other than Hedging Obligations) in an
aggregate principal amount not to exceed $10.0 million at any time
outstanding;
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(v) the incurrence by the Company and the Guarantors of
Indebtedness in connection with the acquisition of assets or a new
Wholly-Owned Restricted Subsidiary; provided that such Indebtedness
was incurred by the prior owner of such assets or such Restricted
Subsidiary prior to such acquisition by the Company and the Guarantors
and was not incurred in connection with, or in contemplation of, such
acquisition by the Company and the Guarantors and provided further
that the aggregate principal amount of Indebtedness incurred pursuant
to this clause (v) does not exceed $5.0 million at any time
outstanding;
(vi) the incurrence by the Company and its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or
the net proceeds of which are used to refund, refinance or replace
Indebtedness (other than Hedging Obligations and other than
Indebtedness permitted to be incurred pursuant to clause (iv), clause
(vii) or clause (ix) of this paragraph) that was permitted by this
Indenture to be incurred;
(vii) the incurrence by the Company or any of its Wholly Owned
Restricted Subsidiaries of intercompany Indebtedness between or among
the Company and its Wholly Owned Restricted Subsidiaries; provided,
however, that any subsequent issuance or transfer of Equity Interests
that results in any such Indebtedness being held by a Person other
than the Company or a Wholly Owned Restricted Subsidiary of the
Company, and any sale or other transfer of any such Indebtedness to a
Person that is not either the Company or a Wholly Owned Restricted
Subsidiary of the Company, shall be deemed, in each case, to
constitute an incurrence of such Indebtedness by the Company or such
Restricted Subsidiary, as the case may be;
(viii) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred for the purpose
of hedging against fluctuations in currency values or for the purpose
of fixing or hedging interest rate risk with respect to any floating
rate Indebtedness of the Company or any of its Restricted Subsidiaries
that is permitted by the terms of this Indenture to be outstanding,
provided that the notional principal amount of any Hedging Obligations
does not exceed the principal amount of Indebtedness to which such
agreement relates; and
(ix) the Guarantee by the Company or any of its Restricted
Subsidiaries of Indebtedness of the Company or a Wholly Owned
Restricted Subsidiary of the Company that was permitted to be incurred
by another provision of this Section 4.09.
For purposes of determining the amount of any Indebtedness of any
Person under this Section 4.09, (a) the principal amount of any Indebtedness of
such Person arising by reason of such Person having granted or assumed a Lien on
its property to secure Indebtedness of another Person shall be the lower of the
fair market value of such property and the principal amount of such Indebtedness
outstanding (or committed to be advanced) at the time of determination; (b) the
amount of any Indebtedness of such Person arising by reason of such Person
having Guaranteed Indebtedness of another Person where the amount of such
Guarantee
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is limited to an amount less than the principal amount of the Indebtedness so
Guaranteed shall be such amount as so limited; and (c) Indebtedness shall not
include a non-recourse pledge by the Company or any of its Restricted
Subsidiaries of Investments in any Person that is not a Restricted Subsidiary of
the Company to secure the Indebtedness of such Person.
For purposes of determining compliance with this Section 4.09, in the
event that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (ix) above or is
entitled to be incurred pursuant to the first paragraph of this Section 4.09,
the Company shall, in its sole discretion, classify such item of Indebtedness in
any manner that complies with this Section 4.09 and such item of Indebtedness
will be treated as having been incurred pursuant to only one of such clauses or
pursuant to the first paragraph of this Section 4.09.
SECTION 4.10 Limitation on Restricted Payments
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, (i) declare or pay any dividend or make
any other payment or distribution on account of the Company's Equity Interests
(including, without limitation, any payment in connection with any merger (other
than the Merger) or consolidation involving the Company) or to any direct or
indirect holders of the Company's Equity Interests in their capacity as such
(other than dividends or distributions (a) payable in Equity Interests (other
than Disqualified Stock) of the Company or (b) payable to the Company or any
Guarantor that is a Wholly-Owned Restricted Subsidiary of the Company); (ii)
except for Permitted Investments in Persons that are, or after giving effect to
such Investments become, Subsidiaries of the Company, purchase, redeem or
otherwise acquire or retire for value (including without limitation, in
connection with any merger (other than the Merger) or consolidation involving
the Company) any Equity Interests of the Company or any Affiliate of the Company
(other than any such Equity Interests owned by the Company or any Wholly Owned
Restricted Subsidiary of the Company, any Equity Interests then being issued by
the Company or a Wholly Owned Restricted Subsidiary of the Company or any
Investment in a Person that, after giving effect to such Investment, is a Wholly
Owned Restricted Subsidiary of the Company); (iii) make any payment on or with
respect to, or purchase, redeem, repay, defease or otherwise acquire or retire
for value, any Indebtedness of the Company or any Guarantor that is subordinated
in right of payment to the Notes or any Guarantee thereof, except a regularly
scheduled payment of interest or principal; or (iv) make any Restricted
Investment (all such payments and other actions set forth in clauses (i) through
(iv) above being collectively referred to as "Restricted Payments"), unless, at
the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment
had been made at the
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beginning of the applicable four-quarter period, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to the
Consolidated Interest Coverage Ratio test set forth in the first
paragraph of Section 4.09 hereof if the number 2.50 in such paragraph
were 2.0; and
(c) such Restricted Payment, together with the aggregate amount
of all other Restricted Payments declared or made by the Company and
its Restricted Subsidiaries after the Closing Date (excluding
Restricted Payments permitted by clauses (ii), (iii), (v) and (vi) and
clause (viii) (if and to the extent that the reimbursement obligations
paid pursuant to clause (viii) are direct obligations of the Company
or any of its Restricted Subsidiaries and are in respect of letters of
credit issued prior to the Closing Date) of the next succeeding
paragraph), is less than the sum, without duplication, of (1) 50% of
the Adjusted Consolidated Net Income of the Company for the period
(taken as one accounting period) from the Closing Date to the end of
the Company's most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted
Payment (or, if such Adjusted Consolidated Net Income for such period
is a deficit, less 100% of such deficit), plus (2) 100% of the
aggregate net cash proceeds received by the Company from the issue or
sale since the Closing Date of Equity Interests of the Company (other
than Disqualified Stock), or of Disqualified Stock or debt securities
of the Company that have been converted into such Equity Interests
(other than Equity Interests (or Disqualified Stock or convertible
debt securities) sold to a Subsidiary of the Company and other than
Disqualified Stock or convertible debt securities that have been
converted into Disqualified Stock), plus (3) to the extent that any
Restricted Investment (other than any Committed Restricted Investment)
that was made after the Closing Date is sold for cash or otherwise
liquidated or repaid for cash, the lesser of (A) the cash return of
capital with respect to such Restricted Investment (less the cost of
disposition, if any) (but only to the extent not included in subclause
(1) of this clause (c) or applied to reduce Unrestricted Investments
Outstanding) and (B) the initial amount of such Restricted Investment,
plus (4) to the extent that any Restricted Investment (other than any
Committed Restricted Investment) that was made after the Closing Date
in the form of a guarantee of Indebtedness is reduced as a result of a
reduction in the maximum principal amount of Indebtedness that may be
guaranteed under such guarantee, the amount of such reduction, plus
(5) to the extent that any Restricted Investment (other than any
Committed Restricted Investment) that was made after the Closing Date
in the form of the furnishing of a letter of credit as security for
Indebtedness or other obligations is reduced as a result of a
reduction in the maximum reimbursement obligations in respect of such
letter or credit, the amount of such reduction, plus (6) to the extent
that any Restricted Investment (other than any Committed Restricted
Investment) that was made after the Closing Date in the form of the
guarantee of a lease has been amortized (as provided in the definition
of "Investments"), the amount of such amortization, plus (7) to the
extent that any Restricted Investment (other than any Committed
Restricted Investment) that was made after the Closing Date in the
form of a guarantee of obligations other than Indebtedness or a lease
is reduced as a result of a reduction in the
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maximum liability under such guarantee, the amount of such reduction,
plus (8) in the event that (A) any Unrestricted Subsidiary shall have
been effectively designated by the Board of Directors of the Company
as a Restricted Subsidiary in accordance with the terms of this
Indenture and (B) immediately after giving effect to such designation
no Default or Event of Default shall have existed and such Subsidiary
shall have become a Wholly-Owned Restricted Subsidiary of the Company,
the lowest of (x) an amount equal to the fair market value (as
determined in good faith by the Board of Directors of the Company) at
the time of such designation of the outstanding Investments of the
Company and its Restricted Subsidiaries in the Subsidiary so
designated, (y) an amount equal to the net book value of such
outstanding Investments at the time of such designation and (z) an
amount equal to the amount of Restricted Investments (other than
Committed Restricted Investments) made by the Company and its
Restricted Subsidiaries in such Subsidiary after the Closing Date less
the amount, if any, of any amounts included in subclause (3), (4),
(5), (6) or (7) of this clause (c) in respect of such Subsidiary, plus
(9) $20.0 million.
The foregoing provisions will not prohibit (i) the payment of any
dividend within 60 days after the date of declaration thereof, if at said date
of declaration such payment would have complied with the provisions of the
Indenture; (ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness or Equity Interests of the Company
in exchange for, or out of the net cash proceeds of the substantially concurrent
sale (other than to a Subsidiary of the Company) of, other Equity Interests of
the Company (other than any Disqualified Stock); provided that the amount of any
such net cash proceeds that are utilized for any such redemption, repurchase,
retirement, defeasance or other acquisition shall be excluded from clause (c)
(2) of the preceding paragraph; (iii) the redemption, repurchase, retirement,
defeasance or other acquisition of subordinated Indebtedness with the net cash
proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the
repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of the Company or any Restricted Subsidiary of the Company held
by any member of the Company's (or any of its Restricted Subsidiaries')
management or board of directors or any employee stock ownership plan; provided
that the aggregate price paid for all such repurchased, redeemed, acquired or
retired Equity Interests shall not exceed $1.0 million in any twelve-month
period; (v) Tax Distributions in respect of periods when the Company is an S
Corporation, (vi) Committed Restricted Investments; (vii) Restricted Investments
consisting of payments pursuant to guaranties (not prohibited by the provisions
of this Indenture) of Indebtedness; (viii) Restricted Investments consisting of
payments pursuant to reimbursement obligations in respect of letters of credit
(not prohibited by the provisions of the Indenture) securing Indebtedness or
other obligations; and (ix) Restricted Investments consisting of payments
pursuant to guaranties (not prohibited by the provisions of the Indenture) of
obligations (other than Indebtedness), provided, however, that at the time of,
and after giving effect to, any Restricted Payment permitted under clauses (i)
through (iv) no Default or Event of Default shall have occurred and be
continuing.
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The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The fair market value of any non-cash Restricted Payment shall be determined in
good faith by the Board of Directors whose resolution with respect thereto shall
be delivered to the Trustee. Notwithstanding the two preceding sentences, the
amount of any Restricted Investment that is a guarantee of (or the furnishing of
a letter or credit as security for) Indebtedness or other obligations shall be
as determined under the definition of "Investments." Not later than the date of
making any Restricted Payment, the Company shall deliver to the Trustee an
Officers' Certificate stating that such Restricted Payments were permitted and
setting forth the basis upon which the calculations required by this Section
4.10 were computed.
The Board of Directors may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary if such designation would not cause a Default. For
purposes of making such determination, all outstanding Investments by the
Company and its Restricted Subsidiaries (except to the extent repaid in cash) in
the Subsidiary so designated will be deemed to be Restricted Payments at the
time of such designation and will reduce the amount available for Restricted
Payments under the first paragraph of this Section 4.10. All such outstanding
Investments in the Subsidiary so designated will be deemed to constitute
Investments in an amount equal to the sum of (a) the greater of (i) the net book
value of such Investments at the time of such designation and (ii) the fair
market value of such Investments at the time of such designation and (b) the
amount of such Investments constituting a guarantee of (or the furnishing of a
letter of credit as security for) Indebtedness or other obligations. Such
designation will only be permitted if such Restricted Payment would be permitted
at such time and if such Restricted Subsidiary otherwise meets the definition of
an Unrestricted Subsidiary.
Any such designation by the Board of Directors shall be evidenced to
the Trustee by filing with the Trustee a certified copy of the Board Resolution
giving effect to such designation and an Officers' Certificate certifying that
such designation complied with the foregoing conditions. If, at any time, any
Unrestricted Subsidiary would fail to meet the definition of an Unrestricted
Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for
purposes of this Indenture and any Indebtedness of such Subsidiary shall be
deemed to be incurred by a Restricted Subsidiary of the Company as of such date
(and, if such Indebtedness is not permitted to be incurred as of such date under
Section 4.09 hereof, the Company shall be in default of such Section). The Board
of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that such designation shall
be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the
Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall only be permitted if (i) such Indebtedness is permitted under
Section 4.09 hereof, calculated on a pro forma basis as if such designation had
occurred at the beginning of the four-quarter reference period, and (ii) no
Default or Event of Default would be in existence following such designation.
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SECTION 4.11 Limitation on Liens
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien securing Indebtedness or trade payables on any asset now owned or
hereafter acquired, or any income or profits therefrom or assign or convey any
right to receive income therefrom, unless the Notes are equally and ratably
secured with such Indebtedness or trade payables for so long as such
Indebtedness or trade payables are so secured; provided, however, that the
provisions of this sentence shall not prohibit Permitted Liens.
SECTION 4.12 Limitation on Transactions with Affiliates
The Company shall not, and shall not permit any of its Subsidiaries to,
make any payment to, or sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter into
or make or amend any transaction, contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate of the Company
(each of the foregoing, an "Affiliate Transaction"), unless (i) such Affiliate
Transaction is on terms that are no less favorable to the Company or the
relevant Subsidiary than those that would have been obtained in a comparable
transaction by the Company or such Subsidiary with an unrelated Person and (ii)
the Company delivers to the Trustee (a) with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving aggregate
payments or consideration in excess of $1.0 million, a resolution of the Board
of Directors set forth in an Officers' Certificate certifying that such
Affiliate Transaction complies with clause (i) above and that such Affiliate
Transaction has been approved by a majority of the independent members of the
Board of Directors and (b) with respect to any Affiliate Transaction or series
of related Affiliate Transactions involving aggregate payments or consideration
in excess of $5.0 million, an opinion as to the fairness to the Company or such
Subsidiary of such Affiliate Transaction from a financial point of view issued
by an accounting, appraisal or investment banking firm of national standing.
The foregoing provisions will not prohibit (i) any reasonable
employment agreement or other compensation plan or arrangement paid or made
available to officers or employees of the Company or its Subsidiaries for
services actually rendered or to be rendered and entered into by the Company or
any Subsidiary in the ordinary course of business and consistent with past
practice; (ii) transactions between or among the Company and/or its Wholly Owned
Restricted Subsidiaries; (iii) any Remote Guarantee or Permitted Investment or
any Restricted Payment that is permitted by the provisions of Section 4.10
hereof; (iv) transactions between or among Unrestricted Subsidiaries of the
Company; (v) the provision, in the ordinary course of business consistent with
past practice and for cash consideration not less than the cost thereof, of
support services (such as accounting, architectural, legal and administrative
services) by the Company and its Restricted Subsidiaries to Unrestricted
Subsidiaries of the Company and entities in which the Company has, directly or
indirectly, an equity interest of 20% or more; (vi) the Tax Payment Agreement;
(vii) leases or subleases by the Company and its Restricted Subsidiaries of real
property to Unrestricted Subsidiaries or Persons in which Unrestricted
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Subsidiaries have an equity interest to the extent that such leases or subleases
are in effect on the Closing Date; (viii) guarantees of Indebtedness or real
property lease obligations of Unrestricted Subsidiaries or entities in which
Unrestricted Subsidiaries have an equity interest to the extent that such
guarantees are in effect on the Closing Date; or (ix) payments by the Company to
Sbarro Enterprises, L.P. under the sublease for the Company's administrative
office building as in effect on the Closing Date.
SECTION 4.13 Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary to (i) (a) pay dividends or make any other
distributions to the Company or any of its Restricted Subsidiaries (1) on its
Capital Stock or (2) with respect to any other interest or participation in, or
measured by, its profits, or (b) pay any indebtedness or other Obligations owed
to the Company or any of its Restricted Subsidiaries, (ii) make loans or
advances to the Company or any of its Restricted Subsidiaries, (iii) transfer
any of its properties or assets to the Company or any of its Restricted
Subsidiaries, (iv) grant Liens on its assets as security for the Notes or any
Guarantee thereof or (v) Guarantee the Notes or any renewals or refinancings
thereof, except for such encumbrances or restrictions (other than encumbrances
and restrictions in respect of clause (v) of this sentence) existing under or by
reason of (a) Existing Indebtedness as in effect on the Closing Date, (b) the
Credit Facility as in effect as of the Closing Date, and any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings thereof, provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacement or refinancings are no more restrictive with respect to such
dividend and other payment restrictions than those contained in the Credit
Facility as in effect on the Closing Date, (c) the Notes, any Guarantee thereof
and the Indenture, (d) applicable law, (e) any instrument governing Indebtedness
or Equity Interests of a Person acquired by the Company or any of its Restricted
Subsidiaries as in effect at the time of such acquisition (except to the extent
such Indebtedness or Equity Interests were incurred in connection with or in
contemplation of such acquisition), which encumbrance or restriction is not
applicable to any Person, or the Equity Interests, properties or assets of any
Person, other than the Person, or the Equity Interests, property or assets of
the Person, so acquired, provided that, in the case of Indebtedness, such
Indebtedness was permitted by the terms of this Indenture to be incurred, (f) by
reason of customary nonassignment provisions (or provisions prohibiting
sublease) in leases entered into in the ordinary course of business and
consistent with past practices, (g) purchase money or mortgage obligations
permitted by this Indenture for property acquired in the ordinary course of
business that impose restrictions of the nature described in clause (iii) or
(iv) above on the property so acquired, (h) customary restrictions in asset or
stock sale agreements limiting transfer of such assets or stock pending the
closing of such sale, (i) customary non-assignment provisions in contracts
entered into in the ordinary course of business, or (j) Permitted Refinancing
Indebtedness, provided that the restrictions contained in the agreements
governing such
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Permitted Refinancing Indebtedness are no more restrictive than those contained
in the agreements governing the Indebtedness being refinanced.
SECTION 4.14 Covenants Relating to Tax Payment Agreement
If the Company elects to be treated as an S Corporation:
(a) the Company shall elect to be treated as an "S corporation" or its
equivalent for state and local income tax purposes in each state and locality in
which the Company does business that permits such an election, for the earliest
possible applicable taxable year;
(b) with respect to each of the Company's Subsidiaries as to which the
Company makes a valid "qualified subchapter S subsidiary" election under Section
1361(b)(3) of the Code, the Company shall make an equivalent election for state
and local income tax purposes, in each state and locality in which the Company
does business that permits such an election, for the earliest possible
applicable taxable year;
(c) except as permitted in paragraph 10 of the Tax Payment Agreement or
except in connection with the termination of the Company's status as an S
Corporation, the Company shall not take any action which it knows would
terminate any election made to be treated as an "S corporation" or its
equivalent for state or local income tax purposes, or for one or more of its
subsidiaries to be treated as a "qualified subchapter S subsidiary" or its
equivalent for state or local income tax purposes;
(d) the Company shall furnish the Trustee with (i) a copy of its
election to be treated as an S Corporation within 15 days after the filing
thereof, (ii) a copy of each determination of amounts permitted to be paid or
distributed to or for the benefit of, or required to be repaid by, the
shareholders of the Company under the Tax Payment Agreement, certified by the
Chief Financial Officer of the Company, on or prior to making such payment or
distribution or requesting such repayment, (iii) a copy of its federal income
tax return for each taxable year (and any amendment thereto) in which it claims
to be an S Corporation within 20 days after filing thereof, and (iv) a
certificate of the Company's certified independent accountants confirming the
computation of the amount determined under clause (a) of paragraph 4 of the Tax
Payment Agreement based on the Company's original federal income tax return for
such taxable year as filed, within 20 days after the Tax Return Date (as defined
in the Tax Payment Agreement) for each taxable year in which the Company claims
to be an S Corporation;
(e) the Company shall promptly notify the Trustee upon learning of the
termination of its status as an S Corporation for any reason;
(f) the Company shall file its original federal income tax return for
each taxable year in which it claims to be an S Corporation on or before the due
date thereof (including valid extensions of time to file such returns); and
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(g) the Company shall cause to be repaid to the Company all amounts
(including interest, where applicable) required to be repaid by the shareholders
of the Company pursuant to the Tax Payment Agreement. Any such repayments shall
be treated as capital contributions which shall not increase the amount
available for Restricted Payments, except for any such increase resulting from
such repayments causing an increase in Adjusted Consolidated Net Income.
SECTION 4.15 Payments for Consent
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder of any Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Notes unless such consideration is offered to be paid
and is paid to all Holders of Notes that consent, waive or agree to amend in the
time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
SECTION 4.16 Asset Sales
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, consummate an Asset Sale unless (i) the
Company (or such Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market
value (evidenced by a resolution of the Board of Directors of the Company set
forth in an Officers' Certificate delivered to the Trustee) of the assets or
Equity Interests issued or sold or otherwise disposed of and (ii) at least 75%
of the consideration therefor received by the Company or such Restricted
Subsidiary is in the form of cash or Cash Equivalents; provided that the amount
of (a) any liabilities (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet) of the Company or such Restricted
Subsidiary (other than contingent liabilities and liabilities that are by their
terms subordinated to the Notes or any Guarantee thereof) that are assumed by
the transferee of any such assets or Equity Interests pursuant to a customary
novation agreement that expressly releases the Company or such Restricted
Subsidiary from further liability and (b) any securities, notes or other
obligations received by the Company or such Restricted Subsidiary from such
transferee that are converted by the Company or such Restricted Subsidiary into
cash within 30 days after such Asset Sale (to the extent of the cash received)
shall be deemed to be cash for purposes of this provision.
Within 365 days after the receipt of any Net Proceeds from an Asset
Sale, the Company, at its option, may apply such Net Proceeds (i) to permanently
reduce any Senior Debt of the Company and/or its Wholly-Owned Restricted
Subsidiaries (and to correspondingly reduce commitments with respect thereto in
the case of revolving borrowings) or (ii) to the acquisition of a controlling
interest in another business, the making of a capital expenditure or the
acquisition of other assets (other than assets that would be classified as
current assets in accordance with GAAP), in each case, in the same or a
reasonably similar
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line of business as the Company and its Restricted Subsidiaries were engaged in
on the date of this Indenture or in any business reasonably complementary,
related or incidental thereto as determined in good faith by the Board of
Directors of the Company. Pending the final application of any such Net
Proceeds, the Company may apply such Net Proceeds to temporarily reduce
borrowings under the Credit Facility or invest such Net Proceeds in any manner
that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that
are not applied or invested as provided in the first sentence of this paragraph
will be deemed to constitute "Excess Proceeds." When the aggregate amount of
Excess Proceeds exceeds $5.0 million, the Company shall make an offer to all
Holders of Notes (an "Asset Sale Offer") to purchase the maximum principal
amount of Notes that does not exceed the Excess Proceeds at an offer price in
cash in an amount equal to 100% of the principal amount thereof, plus accrued
and unpaid interest and Liquidated Damages, if any, thereon to the date of
purchase, in accordance with the procedures set forth in Section 3.10 hereof. To
the extent that the aggregate principal amount of Notes tendered pursuant to an
Asset Sale Offer is less than the Excess Proceeds, the Company may use any
remaining Excess Proceeds for general corporate purposes. If the aggregate
principal amount of Notes tendered by Holders thereof exceeds the amount of
Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro
rata basis (with such adjustments as may be deemed appropriate by the Trustee so
that only Notes in denominations of $1,000, or integral multiples thereof, shall
be purchased). Upon completion of an Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero. The Asset Sale Offer must be commenced within
30 days following the date on which the aggregate amount of Excess Proceeds
exceeds $5.0 million and remain open for at least 30 and not more than 40 days
(unless otherwise required by applicable law). The Company shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of Notes pursuant to an Asset Sale
Offer.
SECTION 4.17 Offer to Repurchase Upon Change of Control
(a) Upon the occurrence of a Change of Control, unless notice of
redemption of the Notes in whole has been given pursuant to Sections 3.04 and
3.08 hereof, the Company shall make an offer to purchase all or any part (equal
to $1,000 or an integral multiple thereof) of each Holder's Notes pursuant to
the offer described below (the "Change of Control Offer") at an offer price in
cash (the "Change of Control Payment") equal to 101% of the aggregate principal
amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the date of purchase (the "Change of Control Payment Date").
(b) Notice of a Change of Control Offer shall be mailed by the Company,
with a copy to the Trustee, or, at the option of the Company and at the expense
of the Company, by the Trustee within 30 days following a Change of Control to
each Holder of Notes, with the following statements and/or information:
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(1) a Change of Control Offer is being made pursuant to
this Section 4.17 and that all Notes properly tendered
pursuant to such Change of Control Offer will be
accepted for payment;
(2) the purchase price, the expiration date of the Change
of Control Offer (the "Expiration Date"), which shall
be no earlier than 30 days nor later than 40 days from
the date such notice is mailed (except as may be
otherwise required by applicable law) and the Change of
Control Payment Date, which shall be no later than the
third Business Day following the Expiration Date;
(3) any Note not properly tendered will remain outstanding
and continue to accrue interest and Liquidated Damages,
if any;
(4) unless the Company defaults in the payment of the
Change of Control Payment, all Notes accepted for
payment pursuant to the Change of Control Offer will
cease to accrue interest and Liquidated Damages, if
any, on the Change of Control Payment Date;
(5) Holders electing to have a Note purchased pursuant to
any Change of Control Offer shall be required to
surrender the Note, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Note
completed, or transfer by book-entry transfer, to the
Company, a depositary, if appointed by the Company, or
a Paying Agent and at the address specified in the
notice prior to the expiration of the Change of Control
Offer;
(6) Holders shall be entitled to withdraw their tendered
Notes and their election to require the Company to
purchase such Notes, provided that the Company, the
depositary or Paying Agent, as the case may be,
receives, not later than the close of business on the
Expiration Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the
Holder, the principal amount of the Notes tendered for
purchase, and a statement that such Holder is
withdrawing his tendered Notes and his election to have
such Notes purchased;
(7) that Holders whose Notes are being purchased only in
part shall be issued new Notes equal in principal
amount to the unpurchased portion of the Notes
surrendered (or transferred by book-entry transfer),
which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof; and
(8) a description of the transaction or transactions that
constitute the Change of Control.
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(c) The Company shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer.
(d) On the Change of Control Payment Date, the Company shall, to the
extent lawful, (1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (2) deposit with the Paying
Agent an amount equal to the aggregate Change of Control Payment in respect of
all Notes or portions thereof so tendered and (3) deliver, or cause to be
delivered, to the Trustee for cancellation the Notes so accepted together with
an Officers' Certificate stating the aggregate principal amount of Notes or
portions thereof being purchased by the Company. The Paying Agent shall promptly
mail or deliver to each Holder of Notes so tendered the Change of Control
Payment for such Notes, and the Trustee shall promptly authenticate and mail (or
cause to be transferred by book entry) to each Holder a new Note equal in
principal amount to any unpurchased portion of the Notes surrendered, if any;
provided that each such new Note shall be in a principal amount of $1,000 or an
integral multiple thereof. The Company shall publicly announce the results of
the Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.
(e) Notwithstanding the foregoing, if the Change of Control Payment
Date is on or after a Regular Record Date and on or before the related Interest
Payment Date, any accrued and unpaid interest and Liquidated Damages, if any,
shall be paid to the Person in whose name a Note is registered at the close of
business on such Regular Record Date, and no additional interest shall be
payable to Holders who tender Notes pursuant to the Change of Control Offer.
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(f) Notwithstanding the foregoing, 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 the manner, at the times and otherwise in
compliance with the requirements set forth in this Indenture applicable to a
Change of Control Offer made by the Company and purchases all Notes validly
tendered and not withdrawn under such Change of Control Offer.
(g) The Change of Control provisions described in this Section 4.17
will be applicable whether or not any other provisions of this Indenture are
applicable.
SECTION 4.18 Additional Subsidiary Guarantees
If the Company or any of its Subsidiaries shall acquire or create
another Subsidiary after the Closing Date, or any Unrestricted
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Subsidiary shall cease to be an Unrestricted Subsidiary and shall become a
Restricted Subsidiary, then the Company shall cause such Subsidiary to (i)
become (by a supplemental indenture executed and delivered to the Trustee in
form satisfactory to the Trustee) a Guarantor and (ii) deliver to the Trustee an
Opinion of Counsel reasonably satisfactory to the Trustee that such supplemental
indenture has been duly executed and delivered; provided, however, that any
Subsidiary that has been properly designated as an Unrestricted Subsidiary in
accordance with this Indenture shall not be required to become a Guarantor so
long as such Subsidiary continues to be an Unrestricted Subsidiary.
SECTION 4.19 Limitation on Issuances and Sales of Capital
Stock of Wholly-Owned Restricted Subsidiaries
The Company (i) shall not, and shall not permit any Wholly Owned
Restricted Subsidiary of the Company to, transfer, convey, sell, lease or
otherwise dispose of any Equity Interests or other ownership interests
(including convertible debt securities) of any Wholly Owned Restricted
Subsidiary of the Company to any Person (other than the Company or a Wholly
Owned Restricted Subsidiary of the Company), unless (a) such transfer,
conveyance, sale, lease or other disposition is of all the Equity Interests and
other ownership interests of such Wholly Owned Restricted Subsidiary and (b) the
Net Proceeds from such transfer, conveyance, sale, lease or other disposition
are applied in accordance with Sections 4.16 and 3.10 hereof, and (ii) shall not
permit any Wholly Owned Restricted Subsidiary of the Company to issue any of its
Equity Interests or other ownership interests (other than, if necessary, shares
of its Capital Stock constituting directors' qualifying shares) to any Person
other than to the Company or a Wholly Owned Restricted Subsidiary of the
Company.
ARTICLE 5.
SUCCESSORS
SECTION 5.01 Limitation on Merger, Consolidation or Sale of Assets
(a) The Company shall not consolidate or merge with or into (whether or
not the Company is the surviving Person), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions to, another Person unless (i) the
Company is the surviving Person or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made is a Person organized or existing under the laws of the United States, any
state thereof or the District of Columbia; (ii) the Person formed by or
surviving any such consolidation or merger (if other than the Company) or the
Person to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made assumes all the obligations of the Company
under the Notes and this Indenture pursuant to a supplemental indenture in a
form reasonably satisfactory to the Trustee; (iii) immediately after giving
effect to such transaction no Default or Event of Default exists; and (iv)
except in the case of a merger of the Company with or into
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a Wholly Owned Restricted Subsidiary of the Company, the Company or the Person
formed by or surviving any such consolidation or merger (if other than the
Company), or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made (A) will have Consolidated Net Worth
immediately after the transaction equal to or greater than the Consolidated Net
Worth of the Company immediately preceding the transaction and (B) will, at the
time of such transaction and after giving pro forma effect thereto as if such
transaction had occurred at the beginning of the applicable four-quarter period,
be permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Consolidated Interest Coverage Ratio test set forth in the first paragraph of
Section 4.09 hereof.
(b) The Company shall deliver to the Trustee prior to the consummation
of any proposed transaction subject to the foregoing clause (a) an Officers'
Certificate and an Opinion of Counsel, each stating that the proposed
transaction and such supplemental indenture comply with this Indenture. The
Trustee shall be entitled to conclusively rely upon such Officers' Certificate
and Opinion of Counsel.
SECTION 5.02 Successor Person Substituted
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in accordance with Section 5.01 hereof, the successor Person
formed by such consolidation or into which the Company is merged or to which
such sale, assignment, transfer, lease, conveyance or other disposition is made
shall succeed to, and be substituted for (so that from and after the date of
such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor Person and not to the Company), and may exercise every right and
power of the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default
Each of the following constitutes an Event of Default:
(1) default for 30 days or more in the payment when due of
interest on, or Liquidated Damages, if any, with respect to, the
Notes; or
(2) default in payment when due (whether payable at maturity,
upon redemption or otherwise) of the principal of or premium, if any,
on the Notes; or
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(3) failure by the Company or any of its Restricted Subsidiaries
to comply with Section 3.10, 4.16, 4.17 or 5.01 hereof; or
(4) failure by the Company or any of its Restricted Subsidiaries
for 30 days after written notice by the Trustee or the Holders of at
least 25% in principal amount of the then outstanding Notes to comply
with any of its other agreements in this Indenture or the Notes other
than those referred to in clauses (1), (2) or (3) above; or
(5) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of
its Restricted Subsidiaries (or the payment of which is guaranteed by
the Company or any of its Restricted Subsidiaries), whether such
Indebtedness or guarantee now exists, or is created after the Closing
Date, which default (a) is caused by a failure to pay principal of or
premium, if any, or interest on such Indebtedness prior to the
expiration of the grace period, if any, provided in such Indebtedness
on the date of such default (a "Payment Default") or (b) results in
the acceleration of such Indebtedness prior to its express maturity
and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of which
has been so accelerated, aggregates $5.0 million or more; or
(6) failure by the Company or any of its Restricted Subsidiaries
to pay final judgments aggregating in excess of $5.0 million and
either (a) any creditor commences enforcement proceedings upon any
such judgment or (b) such judgments are not paid, discharged or stayed
for a period of 60 days; or
(7) except as permitted by this Indenture, any Guarantee of the
Notes shall be held in any judicial proceeding to be unenforceable or
invalid or shall cease for any other reason to be in full force and
effect, or any Guarantor, or any Person acting on behalf of any
Guarantor, shall deny or disaffirm its obligations under its
Subsidiary Guarantee; or
(8) the Company, any Restricted Subsidiary that is a Significant
Subsidiary, or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary, pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief against it
in an involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
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(D) makes a general assignment for the benefit of its
creditors, or
(E) admits in writing its inability generally to pay its
debts as the same become due; or
(9) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company, any Restricted
Subsidiary that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary in an involuntary case or proceeding,
(B) appoints a Custodian of the Company, any Restricted
Subsidiary that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary or for all or a substantial part of the
property of the Company, any Restricted Subsidiary that is a
Significant Subsidiary or any group of Restricted Subsidiaries
that, taken together, would constitute a Significant Subsidiary,
or
(C) orders the liquidation of the Company, any Restricted
Subsidiary that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary,
and the order or decree contemplated by clause (A), (B) or (C) of this
clause (9) remains unstayed and in effect for 60 consecutive days.
SECTION 6.02 Acceleration of Maturity
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes and all other Obligations thereunder to be due and payable
immediately by notice in writing to the Company and the Trustee. Upon a
declaration of acceleration, the Notes and all other Obligations thereunder
shall become immediately due and payable.
Notwithstanding the foregoing, in the case of an Event of Default
specified in clause (8) or (9) of Section 6.01 hereof occurring with respect to
the Company, any Restricted Subsidiary that is a Significant Subsidiary or any
group; of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary, all outstanding Notes and all other Obligations
thereunder shall become immediately due and payable without further action or
notice.
If any Event of Default occurs by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company or any Guarantor
with the intention of avoiding
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payment of the premium that the Company would have had to pay if the Company
then had elected to redeem the Notes pursuant to Section 3.08 hereof, an
equivalent premium shall also become and be immediately due and payable to the
extent permitted by law upon the acceleration of the Notes.
SECTION 6.03 Other Remedies
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy (under this Indenture or otherwise) to collect the payment
of principal of, premium, if any, Liquidated Damages, if any, and interest on
the Notes or to enforce the performance of any provision of the Notes, this
Indenture or the Registration Rights Agreement.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04 Waiver of Past Defaults
Subject to Section 6.07 hereof, the Holders of a majority in aggregate
principal amount of the then outstanding Notes by notice to the Trustee may on
behalf of the Holders of all of the Notes waive an existing Default or Event of
Default and its consequences hereunder, except a continuing Default or Event of
Default in the payment of the principal of, premium, if any, interest or
Liquidated Damages, if any, on, any Note held by a non-consenting Holder;
provided, however, that the Holders of at least a majority in aggregate
principal amount of the Notes then outstanding may rescind an acceleration and
its consequences, including any related payment default that resulted from such
acceleration. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
SECTION 6.05 Control by Majority
The Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, subject to Section 7.01 hereof, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture that the Trustee determines may be unduly prejudicial to the rights of
other Holders of Notes or that may involve the Trustee in personal liability.
The Trustee may take any other action which it deems proper and which is not
inconsistent with any such direction. In the event the Trustee takes any action
or follows any direction pursuant to this Indenture, the Trustee shall be
entitled to indemnification reasonably satisfactory to it against any loss or
expense caused by taking such action or following such direction.
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SECTION 6.06 Limitation on Suits
No Holder of a Note will have any right to institute any proceeding
with respect to this Indenture or for any remedy hereunder, unless (i) such
Holder shall have previously given to the Trustee written notice of a continuing
Event of Default with respect to the Notes, (ii) the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding shall have made written
request to the Trustee to institute such proceeding and, if requested by the
Trustee, provided indemnity satisfactory to the Trustee, with respect to such
proceeding, (iii) the Trustee shall not have received from the Holders of a
majority in aggregate principal amount of the Notes then outstanding a direction
inconsistent with such request and (iv) the Trustee shall have failed to
institute such proceeding within 30 days after such request and, if requested,
the provision of an indemnity satisfactory to the Trustee.
Notwithstanding anything to the contrary contained in this Section
6.06, any Holder of a Note shall have the right to institute a proceeding with
respect to this Indenture or the Notes or for any remedy in the following
instances:
(i) a Holder of a Note may institute suit for enforcement of
payment of principal of and premium, if any, or interest or Liquidated
Damages, if any, on such Note on or after the respective due dates
expressed in such Note (including upon acceleration thereof) or
(ii) Holders of a majority in principal amount of the
outstanding Notes may institute any proceeding with respect to this
Indenture or the Notes or any remedy thereunder; provided that, upon
institution of any proceeding or exercise of any remedy, such Holders
provide the Trustee with prompt written notice thereof.
A Holder of Notes may not use this Indenture to prejudice the rights of
another Holder of Notes or to obtain a preference or priority over another
Holder of Notes.
SECTION 6.07 Rights of Holders to Receive Payment
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal of, premium, if
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any, interest or Liquidated Damages, if any, on any Note, on or after the
respective due dates expressed in such Note, any Redemption Date, any Change of
Control Payment Date or any Purchase Date, or to bring suit for the enforcement
of any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 6.08 Collection Suit by Trustee
If an Event of Default specified in Section 6.01(1) or (2) hereof
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company or any Guarantor
for the whole amount of principal of, premium, if any, interest and Liquidated
Damages, if any, owing on the Notes and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due to the Trustee under Section
7.07 hereof.
SECTION 6.09 Trustee May File Proofs of Claim
The Trustee is authorized to 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 of Notes allowed in any judicial proceedings relative to the Company (or
any Guarantor or other obligor upon the Notes), its creditors or its property
and shall be entitled and empowered to collect, receive and distribute any money
or other property payable or deliverable upon the conversion or exchange of the
Notes or upon any such claims and any custodian in any such judicial proceeding
is hereby authorized by each Holder of Notes to make such payments to the
Trustee and, in the event that the Trustee shall expressly consent to the making
of such payments directly to the Holders of Notes, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof out
of the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders of Notes may be entitled to receive in such proceeding whether in
liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder of Notes any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder of Notes in any such proceeding.
SECTION 6.10 Priorities
If the Trustee collects any money pursuant to this Article 6, it shall,
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, if any, interest and Liquidated Damages,
if any, ratably, without preference or priority of any kind, according
to the amounts due and payable on the
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Notes for principal, premium, if any, interest and Liquidated Damages,
if any, respectively;
Third: without duplication, to the Holders for any other
Obligations owing to the Holders under this Indenture, the
Registration Rights Agreement and the Notes; and
Fourth: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes 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 a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
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 a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 hereof, or a suit by a Holder or Holders of more than
10% in principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
SECTION 7.01 Duties of Trustee
(1) If 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 its own affairs.
(2) Except during the continuance of an Event of Default:
(A) the duties of the Trustee shall be determined solely by
the TIA or the express provisions of this Indenture and the Trustee
need perform, and be liable for (as set forth herein), only those
duties that are specifically set forth in the TIA or this Indenture and
no others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(B) 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, provided that the Trustee shall examine the
certificates and opinions to determine whether or not they conform to
the requirements of this Indenture.
(3) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(A) this paragraph does not limit the effect of clause (2) of
this Section 7.01.
(B) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(C) 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 hereof.
(4) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to clauses (1),
(2) and (3) of this Section 7.01.
(5) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture unless
the Holders shall have offered to the Trustee security and indemnity
satisfactory to it against any loss, liability or expense.
(6) The Trustee shall not be liable for interest on any money or other
assets received by it except as the Trustee may agree in writing with the
Company. Money or other assets held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
(7) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or documents, but the Trustee, in its discretion may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company or any Subsidiary of the Company, personally or by agent or
attorney.
SECTION 7.02 Rights of Trustee
(1) The Trustee may conclusively rely and shall be fully protected in
relying upon any resolution, document, Officers' Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond or other document believed by it to be
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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.
(2) Before the Trustee acts or refrains from acting, it may consult
with counsel and it may require an Officers' Certificate or an Opinion of
Counsel or both which shall comply with Sections 1.05 and 12.04 hereof. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel. The
Trustee may consult with counsel and the advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection from
liability, in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.
(3) The Trustee may act through its attorneys, agents, custodians and
nominees and shall not be responsible for the misconduct or negligence of any
agent, custodian and nominee appointed with due care.
(4) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(5) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company or any Guarantor shall be
sufficient if signed by an Officer of the Company or such Guarantor. A
permissive right granted to the Trustee hereunder shall not be deemed an
obligation to act.
(6) 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
including, without limitation, the provisions of Section 6.05 hereof, unless
such Holders shall have offered to the Trustee security or indemnity
satisfactory to the Trustee against the costs, expenses and liabilities that
might be incurred by it in compliance with such request, order or direction.
(7) The Trustee shall not be charged with knowledge of any Default or
Event of Default unless either (i) a Responsible Officer of the Trustee shall
have actual knowledge of such Default or Event of Default or (ii) written notice
of such Default or Event of Default shall have been given to the Trustee by the
Company or any Holder.
(8) In no event shall the Trustee be liable for the selection of
investments or for investment losses incurred thereon. The Trustee shall have no
liability in respect of losses incurred as a result of the liquidation of any
such investment prior to its stated maturity or the failure of the party
directing such investment to provide timely written investment direction;
provided in each such case that the Trustee shall have acted strictly in
accordance with written directions received from the instructing party. The
Trustee shall have no obligation to invest or reinvest any amounts held
hereunder in the absence of such written investment direction.
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(9) In the event that the Trustee is also acting as Paying Agent,
transfer agent, or Registrar hereunder, the rights and protections afforded to
the Trustee pursuant to this Article 7 shall also be afforded to such Paying
Agent, transfer agent, or Registrar.
SECTION 7.03 Individual Rights of Trustee
The Trustee, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with like
rights and duties. However, the Trustee is also subject to Sections 7.10 and
7.11 hereof.
SECTION 7.04 Trustee's Disclaimer
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the direction of the Company under any provision of
this Indenture, it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
SECTION 7.05 Notice of Defaults
If a Default or Event of Default occurs and is continuing and if it is
known to a Responsible Officer of the Trustee, the Trustee shall mail to Holders
of Notes a notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default or Event of Default in payment of
principal of, premium, if any, interest or Liquidated Damages, if any, on any
Note pursuant to Section 6.01(1) or (2) hereof, the Trustee may withhold the
notice if it in good faith determines that withholding the notice is in the
interests of Holders of Notes.
SECTION 7.06 Reports by Trustee to Holders of Notes
Within 60 days after each September 15 beginning with September 15,
2000, and for so long as Notes remain outstanding, the Trustee shall mail to the
Holders of Notes a brief report dated as of such reporting date that complies
with TIA ss. 313(a) (but if no event described in TIA ss. 313(a) has occurred
within the twelve months preceding the reporting date, no report need be
transmitted). The Trustee also shall comply with TIA ss. 313(b)(2). The Trustee
shall also transmit by mail all reports as required by TIA ss. 313(c).
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A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA ss. 313(d). The
Company shall promptly notify the Trustee when the Notes are listed on any
securities exchange or of any delisting thereof.
SECTION 7.07 Compensation and Indemnity
The Company and each of the Guarantors, jointly and severally, shall
pay to the Trustee, from time to time, as may be agreed upon between them,
reasonable compensation for its acceptance of this Indenture and services
hereunder. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company and each of the
Guarantors, jointly and severally, shall reimburse the Trustee promptly upon
request for all reasonable disbursements, advances and expenses incurred or made
by it in addition to the compensation for its services in accordance with any
provision of this Indenture (including, without limitation, the reasonable
compensation, expenses and disbursements of its counsel and of all agents and
other persons not regularly in its employ (A) in connection with the
preparation, execution and delivery of this Indenture, any waiver or consent
hereunder, any modification or termination hereof, or any Event of Default or
alleged Event of Default; (B) if an Event of Default occurs, in connection with
such Event of Default and collection, bankruptcy, insolvency and other
enforcement proceedings relating thereto; (C) in connection with the
administration of the Trustee's rights pursuant hereto; or (D) in connection
with any removal of the Trustee pursuant to Section 7.08 hereof), except such
disbursements, advances and expenses as may be attributable to its negligence or
bad faith.
The Company and each of the Guarantors, jointly and severally, shall
indemnify the Trustee and its officers, directors, employees and agents against
any and all losses, liabilities, obligations, damages, penalties, judgments,
actions, suits, proceedings, reasonable costs and expenses (including reasonable
fees and disbursements of counsel) of any kind whatsoever which may be incurred
by the Trustee in connection with any investigative, administrative or judicial
proceeding (whether or not such indemnified party is designated a party to such
proceeding) arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs and
expenses of enforcing this Indenture against the Company or the Guarantors
(including this Section 7.07) and defending itself against any claim (whether
asserted by the Company or any Holder or any other Person) or liability in
connection with the exercise or performance of any of its duties or powers
hereunder; provided, however, that the Company need not reimburse any expense or
indemnify against any loss, obligation, damage, penalty, judgment, action, suit,
proceeding, reasonable cost or expense (including reasonable fees and
disbursements of counsel) of any kind whatsoever which may be incurred by the
Trustee in connection with any investigative, administrative or judicial
proceeding (whether or not such indemnified party is designated a party to such
proceeding) in which it is determined that the Trustee acted with gross
negligence or bad faith. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company or the Guarantors of any of their
obligations hereunder. The Company and the Guarantors shall
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defend the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel and the Company and each of the Guarantors, jointly and
severally, shall pay the reasonable fees and expenses of such counsel. The
Company and the Guarantors need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld.
The obligations of the Company and the Guarantors under this Section
7.07 (including the reasonable fees and expenses of its agents and counsel)
shall survive the resignation or removal of the Trustee and the satisfaction and
discharge of this Indenture and any rejection or termination under any
Bankruptcy Law.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal, premium,
if any, and interest and Liquidated Damages, if any, on particular Notes. Such
Lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(8) or (9) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss. 313(b)(2) to
the extent applicable.
SECTION 7.09 Replacement of Trustee
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of a majority
in principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company in writing. The Company may remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a Custodian or public officer takes charge of the Trustee or
its property; or
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(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 promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
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 then outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee, after written request by any Holder of Notes who has
been a Holder of a Note for at least six months, fails to comply with Section
7.10 hereof, such Holder of a Note may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
The Company shall give or cause to be given notice of each resignation
and each removal of the Trustee to all Holders in the manner provided herein.
Each notice shall include the name of the successor Trustee and the address of
its Corporate Trust Office.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of Notes. The retiring Trustee shall promptly transfer,
after payment of all amounts owing to the Trustee pursuant to Section 7.07
hereof, all property held by it as Trustee to the successor Trustee; provided
that all sums owing to the Trustee hereunder have been paid and subject to the
Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the
Trustee pursuant to this Section 7.08, the Company's obligations under Section
7.07 hereof shall continue for the benefit of the retiring Trustee.
SECTION 7.09 successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business (including the trust
created by this Indenture) to, another corporation, the successor corporation
without any further act shall be the successor Trustee.
SECTION 7.10 Eligibility; Disqualification
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state or territory thereof or of the District of
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Columbia that is authorized under such laws to exercise corporate trustee power,
that is subject to supervision or examination by federal, state, territorial or
District of Columbia authorities and that has, or is a wholly owned subsidiary
of a bank holding company that has, a combined capital and surplus of at least
$25,000,000 as set forth in its most recent published annual report of
condition.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 7.10 it shall resign immediately in the
manner and with the effect specified in this Article 7.
This Indenture shall always have a Trustee who satisfies the
requirements of the TIA, including TIA xx.xx. 310(a)(1), (2) and (5). The
Trustee is subject to TIA ss. 310(b).
SECTION 7.11 Preferential Collection of Claims Against Company
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01 Option to Effect Legal Defeasance or Covenant Defeasance
The Company may, at its option, evidenced by an Officers' Certificate,
at any time, with respect to the Notes, elect to have either Section 8.02 or
8.03 hereof be applied to all Notes and Subsidiary Guarantees then outstanding
upon compliance with the conditions set forth in this Article 8.
SECTION 8.02 Legal Defeasance and Discharge
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company and each Guarantor shall, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, be
deemed to have been discharged from their respective obligations with respect to
all Notes and Subsidiary Guarantees then outstanding on the date the conditions
set forth below are satisfied (hereinafter, "Legal Defeasance"). For this
purpose, Legal Defeasance means that the Company and any Guarantor shall be
deemed to have paid and discharged the entire Indebtedness represented by the
Notes and any Subsidiary Guarantee then outstanding, which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 8.05 hereof and the
other Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all their other obligations under such Notes and Subsidiary
Guarantees, and this Indenture (and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments prepared by the Company
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated
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or discharged hereunder: (a) the rights of Holders of Notes then outstanding to
receive solely from the trust fund described in Section 8.04 hereof, and as more
fully set forth in such Section, payments in respect of the principal of,
premium, if any, interest and Liquidated Damages, if any, on such Notes when
such payments are due, or on the Redemption Date, as the case may be, (b) the
Company's obligations with respect to such Notes under Sections 2.03, 2.04,
2.05, 2.06, 2.07, 2.10, 4.02 and 4.03 hereof, (c) the rights, powers, trusts,
duties, indemnities and immunities of the Trustee hereunder and the Company's
obligations in connection therewith and (d) this Article 8. Subject to
compliance with this Article 8, the Company may exercise its option under this
Section 8.02 notwithstanding the prior exercise of its option under Section 8.03
hereof with respect to the Notes.
SECTION 8.03 Covenant Defeasance
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and each Guarantor shall, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, be
released from its obligations under the covenants contained in Sections 4.04,
4.05, 4.06, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14 , 4.15, 4.16, 4.17, 4.18
and 4.19 and Article 5 hereof with respect to the outstanding Notes and the
Subsidiary Guarantees on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter
be deemed not to be "outstanding" for the purposes of any direction, waiver,
consent or declaration or act of Holders (and the consequences of any thereof)
in connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes and the
Subsidiary Guarantees shall not be deemed outstanding for financial accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes and the Subsidiary Guarantees, 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 Event of Default under Section 6.01(3) or (4) hereof, but, except as
specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby. In addition, upon the Company's exercise under Section 8.01
hereof of the option applicable to this Section 8.03, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, Sections
6.01(3) through 6.01(7) hereof shall not constitute Events of Default.
SECTION 8.04 Conditions to Legal Defeasance or Covenant Defeasance
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Notes and the Subsidiary
Guarantees:
In order to exercise either Legal Defeasance or Covenant Defeasance, as
applicable:
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(a) the Company must irrevocably deposit, or cause to be
deposited, with the Trustee, in trust, for the benefit of the Holders
of Notes and without retaining any legal interest in the corpus of such
trust, cash in U.S. dollars, non-callable Government Securities, or a
combination thereof, in such amounts as will be sufficient, in the
opinion of a nationally recognized firm of independent public
accountants, to pay and discharge, and which shall be applied by the
Trustee to pay and discharge, the principal of and premium, if any,
interest and Liquidated Damages, if any, due on the outstanding Notes
on the Stated Maturity thereof or on the applicable Redemption Date, as
the case may be, and the Company must specify whether the Notes are
being defeased to maturity or to a particular Redemption Date;
(b) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (1) the Company
has received from, or there has been published by, the U.S. Internal
Revenue Service a ruling or (2) since the Closing Date, there has been
a change in the applicable U.S. federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the outstanding Notes will not recognize
income, gain or loss for U.S. federal income tax purposes, as a result
of such Legal Defeasance and will be subject to U.S. federal income tax
on the same amounts, in the same manner and at the same times as would
have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of such Covenant Defeasance and
will be subject to U.S. federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event
of Default resulting from the borrowing of funds to be applied to such
deposit) or, insofar as Events of Default under Section 6.01(8) or (9)
hereof are concerned, at any time in the period ending on the 91st day
after the date of such deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any
material agreement or instrument (other than this Indenture) to which
the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that after the 91st day following the deposit,
the trust funds will not be
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subject to the effect of any applicable bankruptcy,insolvency,
reorganization or similar laws affecting creditors' rights generally;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of Notes over the
other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding creditors of the Company or others;
(h) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal Defeasance
or the Covenant Defeasance, as the case may be, have been complied
with; and
(i) the Trustee shall have received such other documents and
assurances as the Trustee shall reasonably require.
SECTION 8.05 Deposited Money and Government Securities to
be Held in Trust; Other Miscellaneous Provisions
(a) Subject to the provisions of the last paragraph of Section 4.03
hereof and to Section 8.06 hereof, all money and Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.05, the "Trustee") pursuant
to Section 8.04 hereof in respect of the Notes then outstanding shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Notes and this Indenture, to the payment, either directly or through any Paying
Agent as the Trustee may determine, to the Holders of such Notes of all sums due
and to become due thereon in respect of principal, premium, if any, interest and
Liquidated Damages, if any, but such money and Government Securities need not be
segregated from other funds except to the extent required by law.
(b) The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the cash or Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the Notes then
outstanding. This Section 8.05(b) shall survive the termination of this
Indenture, and the earlier removal or resignation of the Trustee.
SECTION 8.06 Repayment to Company
The Trustee shall deliver or pay to the Company from time to time upon
receipt of a written Company Request any money or Government Securities held by
it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.04(a) hereof) accompanied by an Officers'
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Certificate, are in excess of the amount thereof that would then be required to
be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.07 Reinstatement
If the Trustee or Paying Agent is unable to apply any United States
dollars or Government Securities in accordance with Section 8.02 or 8.03 hereof,
as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's and any Guarantor's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.02 or 8.03 hereof, as the case may be, until such
time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; provided,
however, that if the Company or any Guarantor makes any payment of principal of,
premium, if any, or interest or Liquidated Damages, if any, on any Notes
following the reinstatement of its obligations, the Company or such Guarantor
shall be subrogated to the rights of the Holders of such Notes to receive such
payment from the money or Government Securities held by the Trustee or Paying
Agent.
ARTICLE 9.
AMENDMENTS
SECTION 9.01 Without Consent of Holders
Notwithstanding Section 9.02 of this Indenture, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture or the Notes
without the consent of any Holder of a Note:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(3) to provide for assumption of the Company's or any
Guarantor's obligations to the Holders of the Notes in the case of a
merger, consolidation or sale of assets;
(4) to provide security for the Notes;
(5) to add a Guarantor under this Indenture;
(6) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights hereunder of any Holder of the Notes;
or
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(7) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA.
Upon the written request of the Company, and upon receipt by the
Trustee of an Officers' Certificate and an Opinion of Counsel in compliance with
Section 1.05 hereof, the Trustee shall join with the Company and the Guarantors
in the execution of any amendment or supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall
not be obligated to enter into any such amendment or supplemental indenture that
adversely affects its own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.02 With Consent of Holders
Except as provided below in this Section 9.02, this Indenture and the
Notes may be amended or supplemented with the consent of the Holders of at least
a majority in principal amount of the Notes then outstanding (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Notes), and, subject to Sections 6.04 and 6.07 hereof,
any existing default or compliance with any provision of this Indenture or the
Notes may be waived with the consent of the Holders of a majority in principal
amount of the then outstanding Notes (including consents obtained in connection
with a tender offer or exchange offer for Notes).
Upon the request of the Company, and upon the filing with the Trustee
of evidence satisfactory to the Trustee of the consent of the Holders of Notes
as aforesaid, and upon receipt by the Trustee of an Officers' Certificate and an
Opinion of Counsel in compliance with Section 1.05 hereof, the Trustee shall
join with the Company and the Guarantors in the execution of an amendment or
supplemental indenture unless such amendment or supplemental indenture adversely
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amendment or supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed supplemental
indenture or amendment, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders of each Note affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amendment or
supplemental indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the
Holders of a majority in aggregate principal amount of the Notes then
outstanding may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Notes. However, without the consent of
each Holder of Notes affected, an amendment or waiver may not (with respect to
any Note held by a non-consenting Holder):
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(1) reduce the principal amount of the Notes whose Holders
must consent to anc amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of
any Note or alter the provisions with respect to the redemption of the
Notes or, if the Company has become obligated to make a Change of
Control Offer or an Asset Sale Offer, amend, change or modify the
obligation of the Company to make or consummate such Change of Control
Offer or Asset Sale Offer;
(3) reduce the rate of or change the time for payment of
interest or Liquidated Damages, if any, on any Note;
(4) waive a Default or Event of Default in the payment of
principal of or premium, interest or Liquidated Damages, if any, on the
Notes (except a rescission of acceleration of the Notes by the Holders
of at least a majority in aggregate principal amount of the Notes and
a waiver of the payment default that resulted from such acceleration);
(5) make any Note payable in money other than that stated in
such Note; (6) make any change in Section 6.04 or Section 6.07;
(7) waive a redemption payment with respect to any Note;
(8) except pursuant to Section 11.05 hereof, release any
Guarantor from its Subsidiary Guarantee; or
(9) make any change in the foregoing amendment and waiver
provisions of this Article 9.
SECTION 9.03 Compliance with Trust Indenture Act
Every amendment or supplement to this Indenture or the Notes shall be
set forth in an amendment or supplemental indenture that complies 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 of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to such Holder's Note or portion of such Note by
written notice to the Trustee received before the date the amendment, supplement
or waiver becomes effective. An
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amendment, supplement or waiver becomes effective in accordance with its terms
and thereafter binds every Holder of Notes, except as provided in Section 9.02
hereof.
SECTION 9.05 Notation on or Exchange of Notes
The Trustee may, but shall not be required to, place an appropriate
notation about an amendment, supplement or waiver on any Note thereafter
authenticated. The Company in exchange for all Notes may issue and the Trustee
shall authenticate new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental indenture or waiver
authorized pursuant to this Article 9 if the amendment or 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 any amended or supplemental indenture or waiver, the Trustee
shall be entitled to receive, if requested, an indemnity satisfactory to it and
to receive and, subject to Section 7.01 hereof, shall be fully protected in
relying upon an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that such amendment or supplemental indenture 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 and the Guarantors in accordance
with its terms. The Company may not sign an amendment or supplemental indenture
or waiver until the Board of Directors of the Company approves it.
ARTICLE 10.
SATISFACTION AND DISCHARGE
Section 10.01 Satisfaction and Discharge of Indenture
This Indenture shall be discharged and will cease to be of further
effect as to all Notes issued hereunder when:
(1) either:
(a) all Notes that have been authenticated (except
lost, stolen or destroyed Notes that have been replaced or
paid and Notes for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Company) have
been delivered to the Trustee for cancellation; or
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(b) all Notes that have not been delivered to the
Trustee for cancellation have become due and payable by reason
of the giving of a notice of redemption or otherwise or will
become due and payable within one year or are to be called for
redemption within one year under irrevocable arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name of and at the expense of
the Company and the Company has irrevocably deposited or
caused to be deposited with the Trustee, in trust, for the
benefit of the Holders of the Notes, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof,
in such amounts as will be sufficient, without consideration
of any reinvestment of interest, to pay and discharge the
entire indebtedness on the Notes not theretofore delivered to
the Trustee for cancellation for principal, premium and
Liquidated Damages, if any, and accrued interest to the date
of maturity or redemption;
(2) such deposit, if made pursuant to the preceding clause
1(b), will not result in a breach or violation of, or constitute a
default under, any material agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries is bound;
(3) the Company has paid or caused to be paid all sums payable
by it under this Indenture;
(4) the Company has delivered irrevocable instructions to the Trustee
to apply all money and Government Securities deposited pursuant to the
preceding clause 1(b) toward the payment of the Notes at maturity or
the redemption date, as the case may be;
(5) the Company has delivered to the Trustee an Officers'
Certificate stating that the deposit, if made pursuant to the preceding
clause 1(b), was not made by the Company with the intent of preferring
the Holders of Notes over the other creditors of the Company or with
the intent of defeating, hindering, delaying or defrauding creditors of
the Company or others;
(6) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the satisfaction and discharge of
this Indenture have been complied with; and
(7) the Trustee has received such other documents and
assurances as the Trustee shall reasonably require.
SECTION 10.02 Application of Trust Money
Subject to the provisions of the last paragraph of Section 4.03 all
money and Government Securities (including the proceeds thereof) deposited with
the Trustee pursuant to
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Section 10.01 hereof shall be held in trust and applied by it, in accordance
with the provisions of the Notes and this Indenture, to the payment, either
directly or through any Paying Agent as the Trustee may determine, to Persons
entitled thereto, of the principal (and premium, if any) and interest and
Liquidated Damages, if any, for whose payment such money has been deposited with
the Trustee.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 10.01 hereof by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, the Company's and any Guarantor's
obligations under this Indenture and the Notes shall be revived and reinstated
as though no such deposit had occurred pursuant to Section 10.01 hereof;
provided that if the Company or any Guarantor has made any payment of principal
of, premium, if any, or interest or Liquidated Damages, if any, on, any Notes
following the reinstatement of its obligations, the Company or such Guarantor
shall be subrogated to the rights of the Holders of such Notes to receive such
payment from the money held by the Trustee or Paying Agent.
ARTICLE 11.
SUBSIDIARY GUARANTEES
SECTION 11.01 Subsidiary Guarantee
For value received, the Guarantors, jointly and severally, hereby
unconditionally guarantee to the Holders of the Notes and to the Trustee the due
and punctual payment of the principal of, premium, if any, and interest and
Liquidated Damages, if any, (including interest and Liquidated Damages, if any,
accruing on or after the filing of a petition in bankruptcy or reorganization
relating to the Company, whether or not a claim for post-filing interest or
Liquidated Damages is allowed in such proceeding) on, the Notes, and all other
amounts payable by the Company under the Notes and under this Indenture
(collectively, the "Guaranteed Obligations"), when and as the same shall become
due and payable, whether at the stated maturity or by declaration of
acceleration, call for redemption or otherwise, according to the terms of the
Notes and this Indenture. Each Subsidiary Guarantee pursuant to this Article 11
constitutes a guarantee of payment in full when due and not merely a guarantee
of collectibility. Notwithstanding the foregoing, each Guarantor's liability
under this Section 11.01 shall be limited to the maximum amount that would not
result in such Guarantor's Subsidiary Guarantee under this Section 11.01
constituting a fraudulent conveyance or fraudulent transfer under applicable
law.
SECTION 11.02 Obligation of the Guarantors Unconditional
Except as provided in Section 11.05 hereof, the obligations of each
Guarantor hereunder shall be as aforesaid absolute and unconditional, and shall
not be impaired,
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modified, released or limited by any occurrence or condition
whatsoever, including, without limitation, (i) any compromise, settlement,
release, waiver, renewal, extension, indulgence or modification of, or any
change in, any of the obligations and liabilities of the Company contained in
the Notes or this Indenture, (ii) any impairment, modification, release or
limitation of the liability of the Company or its estate in bankruptcy, or any
remedy for the enforcement thereof, resulting from the operation of any present
or future provision of any applicable Bankruptcy Law, as amended, or other
statute or from the decision of any court, (iii) the assertion or exercise by
the Company, the Holders of Notes or the Trustee of any rights or remedies under
the Notes or this Indenture or their delay in or failure to assert or exercise
any such rights or remedies, (iv) the assignment or the purported assignment of
any property as additional security for the Notes, including all or any part of
the rights of the Company under this Indenture, (v) the extension of the time
for payment by the Company of any payments or other sums or any part thereof
owing or payable under any of the terms and provisions of the Notes or this
Indenture or of the time for performance by the Company of any other obligations
under or arising out of any such terms and provisions or the extension or the
renewal of any thereof, (vi) the modification or amendment (whether material or
otherwise) of any duty, agreement or obligation of the Company set forth in this
Indenture or the Notes, (vii) the voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all of the
assets, marshalling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of, or other similar proceeding
affecting, the Company, or any of the Guarantors or any of their respective
assets, or the disaffirmance of this Subsidiary Guarantee pursuant to this
Article 11 or the Notes or this Indenture in any such proceeding, (viii) the
release or discharge of the Company from the performance or observance of any
agreement, covenant, term or condition contained in any of such instruments by
operation of law, (ix) the unenforceability of the Notes or this Indenture or
any Subsidiary Guarantee pursuant to this Article 11, or (x) any other
circumstance which might otherwise constitute a legal or equitable discharge of
a surety or guarantor.
SECTION 11.03 Waiver Relating to Subsidiary Guarantees
Each Guarantor hereby (i) waives diligence, presentment, demand of
payment, filing of claims with a court in the event of the merger, insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company or to realize on any collateral, protest or notice with respect to the
Guaranteed Obligations and all demands whatsoever, (ii) acknowledges that any
agreement, instrument or document evidencing the Guaranteed Obligations may be
transferred and that the benefit of its obligations hereunder shall extend to
each holder of any agreement, instrument or document evidencing the Guaranteed
Obligations without notice to them, and (iii) covenants that its Subsidiary
Guarantee pursuant to this Article 11 will not be discharged except pursuant to
Section 11.04 hereof or by complete payment and performance of the Guaranteed
Obligations and of its Subsidiary Guarantee pursuant to this Article 11.
SECTION 11.04 Guarantors May Consolidate, etc., on Certain Terms
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Subject to Section 11.05 hereof, no Guarantor (including any existing
or future Restricted Subsidiary that becomes an additional Guarantor) may
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person, whether or not affiliated with such Guarantor,
or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets in one or more related
transactions to another Person, unless (i) the Person formed by or surviving
such consolidation or merger (if other than such Guarantor) or to which such
sale, assignment, transfer, lease, conveyance or other disposition shall have
been made is a Person organized and existing under the laws of the United States
of America, any state thereof, or the District of Columbia and expressly
assumes, pursuant to a supplemental indenture in form and substance reasonably
satisfactory to the Trustee, all the obligations of such Guarantor under the
Notes and this Indenture and (ii) immediately after giving effect to such
transaction, no Default or Event of Default exists. In connection with any
consolidation or merger contemplated by this Section 11.04, the Company shall
deliver to the Trustee prior to the consummation of the proposed transaction an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation or merger and such supplemental indenture comply with this Article
11 and that all conditions precedent herein provided relating to such
transaction have been complied with.
The provisions of clause (i) of the preceding paragraph shall not apply
if the Person formed by or surviving the relevant consolidation or merger or to
which the relevant sale, assignment, transfer, lease, conveyance or other
disposition shall have been made is the Company, a Guarantor or a Person that is
not, after giving effect to such transaction, a Restricted Subsidiary of the
Company.
SECTION 11.05 Release of Subsidiary Guarantee
In the event (i) of a merger or consolidation to which a Guarantor is a
party, then the Person formed by or surviving such merger or consolidation (if,
after giving effect to such transaction, such Person is neither the Company nor
a Restricted Subsidiary of the Company) shall be released and discharged from
the obligations of such Guarantor under its Subsidiary Guarantee or (ii) of a
sale or other disposition (whether by merger, consolidation or otherwise) of all
of the Equity Interests of a Guarantor at the time owned by the Company and its
Restricted Subsidiaries to any Person that, after giving effect to such
transaction, is neither the Company nor a Restricted Subsidiary of the Company,
then such Guarantor shall be released and discharged from its obligations under
its Subsidiary Guarantee or (iii) that a Guarantor has been effectively
designated by the Board of Directors of the Company as an Unrestricted
Subsidiary in accordance with the terms of this Indenture, then such Guarantor
shall be released and discharged from its obligations under its Subsidiary
Guarantee; provided that, in the case of each of clauses (i), (ii) and (iii)
above, (A) the relevant transaction or designation, as the case may be, is in
compliance with the terms of this Indenture, (B) immediately after giving effect
to such transaction or designation, no Default or Event of Default shall exist
and (C) the Person being released and discharged shall have been released and
discharged from all obligations it might otherwise have under Guarantees of
Indebtedness of the Company or any of its Restricted Subsidiaries.
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Upon any Guarantor ceasing to be a Guarantor pursuant to any provision
of this Indenture, at the request of the Company which request shall be
accompanied by an Officers' Certificate and an Opinion of Counsel, each
certifying that no Event of Default (or event or condition which with the giving
of notice or the passage of time would become an Event of Default) exists and is
continuing and that all conditions precedent herein provided relating to this
Section 11.05 have been complied with, the Trustee shall execute and deliver an
appropriate instrument evidencing any such release. Any Guarantor not released
from its obligations under its Guarantee shall remain liable for the full amount
of principal of, premium, if any, and interest and Liquidated Damages, if any,
on the Notes and for the other obligations of such Guarantor under this
Indenture as and to the extent provided in this Indenture.
SECTION 11.06 Contribution of Guarantors
In the event that any Guarantor (such Guarantor being herein referred
to as the "Funding Party") shall make a payment under its Subsidiary Guarantee
pursuant to this Article 11, it shall be entitled to a contribution from each
other Guarantor (each, a "Contributor") in the amount of such Contributor's pro
rata share of the amount of such payment by such Funding Party so long as
exercise of such right does not impair the rights of Holders of Notes under any
Subsidiary Guarantee. The failure of a Contributor to discharge its obligations
under this Section 11.06 shall not affect the obligations of any Guarantor under
its Subsidiary Guarantee pursuant to this Article 11. The obligations under this
Section 11.06 shall be unaffected by any of the events described in Section
11.02 or any comparable events pertaining to the Funding Party, its Subsidiary
Guarantee or the undertakings in this Section 11.06.
SECTION 11.07. Reinstatement of Subsidiary Guarantees
Each Guarantee pursuant to this Article 11 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 any of the Guaranteed
Obligations is, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by any Holder of Notes or by the Trustee,
whether as a "voidable preference," "fraudulent conveyance," "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 Guaranteed Obligations 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.
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ARTICLE 12.
MISCELLANEOUS
SECTION 12.01 Trust Indenture Act Controls
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA ss. 318(c), the imposed duties shall control.
SECTION 12.02 Notices
Any notice or communication by the Company, any Guarantor or the
Trustee to the others is duly given if in writing and delivered by hand
delivery, by first-class mail (registered or certified, return receipt
requested), by facsimile or by overnight air courier guaranteeing next day
delivery, to the others' addresses as follows:
If to the Company or any Guarantor:
Sbarro, Inc.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Telecopier No.: (000) 000-0000
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with a copy to:
Sbarro, Inc.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx Flattau & Klimpl, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopier No.: (000) 000-0000
If to the Trustee:
Firstar Bank, N.A.
Corporate Trust Department
000 Xxxx 0xx Xxxxxx, 00xx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, III
Telecopier No.: (000) 000-0000
The Company, any Guarantor or the Trustee by notice to the others may
designate additional or different addresses of subsequent notices or
communications.
All notices and communications (other than those sent to Holders of
Notes) shall be deemed to have been duly received: at the time delivered by
hand, if personally delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed; when receipt is confirmed, if sent by
facsimile; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder of Notes shall be mailed by
first-class mail, certified or registered, return receipt requested, to his
address shown on the register kept by the Registrar. Failure to mail a notice or
communication to a Holder of Notes or any defect in it shall not affect its
sufficiency with respect to other Holders of Notes.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders of Notes, it
shall mail a copy to the Trustee and each Agent at the same time.
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SECTION 12.03 Communication by Holders with Other Holders
Holders of Notes may communicate pursuant to TIA ss.312(b) with other
Holders of Notes with respect to their rights under this Indenture or the Notes.
The Company, any Guarantor, the Trustee, the Registrar and anyone else shall
have the protection of TIA ss.312(c). Upon qualification of this Indenture under
the TIA, the Trustee shall otherwise comply with TIA ss.312(b).
SECTION 12.04 Certificate and Opinion as to Conditions Precedent
Upon any request or application by the Company and/or any Guarantor to
the Trustee to take any action under this Indenture, the Company and/or any
Guarantor, as the case may be, shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 1.05 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any provided for in
this Indenture relating to the proposed action have been complied with;
and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 1.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been complied
with.
SECTION 12.05 Rules by Trustee and Agents
The Trustee may make reasonable rules for action by or at a meeting of
Holders of Notes. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
SECTION 12.06 Legal Holidays
In any case where any Interest Payment Date, any date established for
payment of Defaulted Interest pursuant to Section 2.12 hereof, or any Maturity
with respect to any Note shall not be a Business Day, then (notwithstanding any
other provisions of this Indenture) or the Notes payment of interest or
Liquidated Damages, if any, or principal (and premium, if any) need not be made
on such date but may be made on the next succeeding Business Day with the same
force and effect as if made on the Interest Payment Date or date established for
payment of Defaulted Interest pursuant to Section 2.12 hereof or Maturity, and
no interest shall accrue with respect to such payment for the period from and
after such Interest Payment Date or date established for payment of Defaulted
Interest pursuant to Section 2.12 or Maturity, as the case may be, to the next
succeeding Business Day.
-100-
SECTION 12.07 No Personal Liability of Directors, Officers, Employees,
Incorporators and Stockholders
No director, officer, employee, incorporator or stockholder of the
Company or any Guarantor, as such, shall have any liability for any obligations
of the Company or such Guarantor under the Notes or this Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Notes by accepting a Note waives and releases all such
liability. The waiver and release shall be part of the consideration for the
issuance of the Notes.
SECTION 12.08 Governing Law; Submission to Jurisdiction
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS. BY THE EXECUTION AND DELIVERY OF THIS
INDENTURE, EACH OF THE COMPANY AND THE GUARANTORS SUBMITS TO THE JURISDICTION OF
ANY FEDERAL OR STATE COURT IN THE STATE OF NEW YORK IN ANY SUIT OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE.
SECTION 12.09 No Adverse Interpretation of Other Agreements
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 12.10 Successors and Assigns
All covenants and agreements in this Indenture and the Notes by the
Company and the Guarantors shall bind their respective successors and assigns.
All covenants and agreements in this Indenture by the Trustee shall bind its
successor and assigns.
SECTION 12.11 Severability
In case any one or more of the provisions in this Indenture or in the
Notes shall be held invalid, illegal or unenforceable in any jurisdiction, in
any respect for any reason, the validity, legality and enforceability of any
such provision in every other jurisdiction and in every other respect, and of
the remaining provisions, shall not in any way be affected or impaired thereby,
it being intended that all of the provisions hereof shall be enforceable to the
full extent permitted by law.
-101-
SECTION 12.12 Counterpart Originals
This Indenture may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of them together shall
represent the same agreement.
SECTION 12.13 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
[Signatures on following pages]
-102-
IN WITNESS WHEREOF, the undersigned have caused this Indenture to be
executed as of the date first above written.
SBARRO, INC.
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Chairman of the Board, President
and Chief Executive Officer
[Indenture Signature Page for the Company]
SBARRO PROPERTIES, INC.
SBARRO AMERICA, INC.
SBARRO AMERICA PROPERTIES INC.
SBARRO'S OF TEXAS, INC.
ITALIAN FOOD FRANCHISING, INC.
COREST MANAGEMENT, INC.
FRANREST MANAGEMENT, INC.
LARKFIELD EQUIPMENT CORP.
SBARRO FOODS, INC.
SBARRO OF ROOSEVELT FIELD, INC.
SBARRO OF VIRGINIA, INC.
DEMEFAC LEASING CORP.
FRANCHISE CONTRACTING AND EQUIPMENT CORP.
MELVILLE ADVERTISING AGENCY INC.
SBARRO COMMACK, INC.
SBARRO OF LAS VEGAS, INC.
SBARRO OF HAWAII, INC.
SBARRO PENNSYLVANIA, INC.
SBARRO FRANCHISE ASSOCIATES, INC.
SBARRO H.D.F., INC.
N.H.D., INC.
BUSHRANGER HOLDING, INC.
MELVILLE PIZZERIA, INC.
SBARRO ONE WORLD TRADE, INC.
401 BROAD HOLLOW REALTY CORP.
000 XXXXX XXXXXX XXXXXXX XXXXXX CORP.
SBARRO BISTROS, INC.
SYOSSET BISTRO, INC.
Each by its authorized officer:
/s/ Xxxxx Xxxxxx
By:__________________________________
Name: Xxxxx Xxxxxx
Title: President
SBARRO DOMINION LIMITED
/s/ Xxxxx Xxxxxx
By: _________________________________
Name: Xxxxx Xxxxxx
Title: President
/s/ Xxxxxx Xxxxxx
By: __________________________________
Name: Xxxxxx Xxxxxx
Title: Secretary
[Indenture Signature Page for Guarantors]
FIRSTAR BANK, N.A., as Trustee
/s/ Xxxxx X. Xxxxxx
By:________________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
[Indenture Signature Page for Trustee]
EXHIBIT A
[Face of Note]
FOR GLOBAL NOTES: THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY.]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT), (2) AGREES THAT IT WILL NOT, WITHIN TWO YEARS AFTER
THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE COMPANY 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
(AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) THAT,
PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S.
BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE
FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (D)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
OF 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. IN CONNECTION WITH ANY
TRANSFER OF THIS SECURITY WITHIN ONE YEAR AFTER THE ORIGINAL ISSUANCE OF THIS
SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO
AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.
CUSIP: ______________
No. ____ U.S.$______________
SBARRO, INC.
11% Senior Notes due 2009
SBARRO, INC., a New York corporation. for value received, promises to
pay to __________________________, or its registered assigns, the principal sum
of _____________________________________ AND NO/100 UNITED STATES DOLLARS
(U.S.$___________) on September 15, 2009.
Interest Payment Dates: March 15 and September 15
Record Dates: March 1 and September 1
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-2-
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
SBARRO, INC.
By ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
Dated:
(Trustee's Certificate of Authentication)
This is one of the Notes referred to
in the within-mentioned Indenture:
FIRSTAR BANK, N.A., as Trustee
By: __________________________________
Authorized Signatory
-3-
[Reverse Side of Note]
SBARRO, INC.
11% Senior Notes due 2009
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1 Interest.
SBARRO, INC., a New York corporation (the "Company", which term
includes any successor under the Indenture hereinafter referred to), promises to
pay interest on the principal amount of this Note at 11% per annum from
Septemper 28, 1999 until maturity and to pay Liquidated Damages, if any, payable
pursuant to the Registration Rights Agreement referred to below. The Company
will pay interest and Liquidated Damages, if any, semi-annually in arrears on
March 15 and September 15 of each year, or if any such day is not a Business
Day, on the next succeeding Business Day (each, an "Interest Payment Date").
Interest on the Notes will accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from the date of issuance;
provided that if there is no existing Default in the payment of interest, and if
this Note is authenticated between a record date referred to on the face hereof
and the next succeeding Interest Payment Date, interest shall accrue from such
next succeeding Interest Payment Date; provided, further, that the first
Interest Payment Date shall be March 15, 2000. The Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal and premium, if any, from time to time on demand at a rate
equal to 1% per annum in excess of the rate then in effect; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated Damages, if
any (without regard to any applicable grace periods), from time to time on
demand at the same rate to the extent lawful. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
2. Method of Payment.
The Company will pay interest on the Notes (except defaulted interest)
and Liquidated Damages, if any, to the Persons who are registered Holders of
Notes at the close of business on the March 1 or September 1 next preceding the
Interest Payment Date, even if such Notes are canceled after such record date
and on or before such Interest Payment Date, except as provided in Section 2.12
of the Indenture with respect to defaulted interest. The Notes will be payable
as to principal, premium and Liquidated Damages, if any, and interest at the
office or agency of the Company maintained for such purpose within or without
the City and State of New York, or, at the option of the Company, payment of
interest and Liquidated Damages, if any, may be made by check mailed to the
Holders at their addresses set forth in the register of Holders, and provided
that payment by wire transfer of immediately available funds will be required
with respect to principal of and interest, premium and Liquidated Damages, if
any, on, all Global Notes and all other Notes the Holders of which shall have
provided wire transfer instructions to the Company or the Paying Agent at least
five Business Days prior to the applicable payment date. Such payment shall be
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
-4-
3. Paying Agent and Registrar.
Initially, FIRSTAR BANK, N.A., the Trustee under the Indenture, will
act as Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company or any of its Subsidiaries
may not act in any such capacity.
4 Indenture.
The Company issued the Notes under an Indenture dated as of September
28, 1999 (the "Indenture") among the Company, the Guarantors named on the
signature pages thereto and the Trustee. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S. Code xx.xx. 77aaa- 77bbbb). The
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. To the extent any provision of this
Note conflicts with the express provisions of the Indenture, the provisions of
the Indenture shall govern and be controlling. The Notes are general obligations
of the Company. Subject to the provisions of the Indenture, the Company may
issue Additional Notes under the Indenture.
5. Optional Redemption.
(a) On or after September 15, 2004, the Company shall have the option to
redeem the Notes, in whole or in part, upon not less than 30 nor more than 60
days' notice, at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest and Liquidated Damages,
if any, thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on September 15 of the years indicated below:
Year Percentage
2004................................................................. 105.500%
2005................................................................. 103.667%
2006................................................................. 101.833%
2007 and thereafter.................................................. 100.000%
(b) On or prior to September 15, 2002, the Company may on any one or
more occasions redeem up to 35% of the aggregate principal amount of Notes
initially issued under the Indenture, including any Additional Notes issued
under the Indenture, at a redemption price of 111% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages, if any, to the
redemption date, with the net cash proceeds of one or more Public Equity
Offerings; provided that (i) at least 65% of the aggregate principal amount of
Notes originally issued under the Indenture, including any Additional Notes
issued under the Indenture, remain outstanding immediately following each such
redemption and (ii) such redemption shall occur within 60 days of the closing of
each such Public Equity Offering.
-5-
(c) In addition, at any time prior to September 15, 2004, the Notes
will be subject to redemption at the option of the Company, in whole or in part,
upon not less than 30 nor more than 60 days' notice, at the Make-Whole Price,
plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the
applicable redemption date.
6. Notice of Redemption.
A notice of redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each Holder whose Notes are to be
redeemed at its registered address. Notes in denominations larger than $1,000
may be redeemed in part but only in whole multiples of $1,000. On and after the
redemption date, unless the Company defaults in making the redemption payments,
interest and Liquidated Damages, if any, ceases to accrue on Notes or portions
thereof called for redemption.
7. Mandatory Redemption.
Except as set forth in paragraph 8 below, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.
8. Repurchase at Option of Holder.
(a) If there is a Change of Control, unless notice of redemption of the
Notes in whole has been given pursuant to Sections 3.04 and 3.08 of the
Indenture, the Company shall be required to make an offer (a "Change of Control
Offer") to purchase all or any part (equal to $1,000 or an integral multiple
thereof) of each Holder's Notes at an offer price in cash equal to 101% of the
aggregate principal amount thereof, plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the date of purchase (the "Change of
Control Payment"). Notice of a Change of Control Offer shall be mailed within 30
days following a Change of Control to each Holder of the Notes containing the
information set forth in Section 4.17 of the Indenture.
(b) When the aggregate amount of Excess Proceeds from one or more Asset
Sales exceeds $5.0 million, the Company shall make an offer to all Holders of
Notes (an "Asset Sale Offer") to purchase the maximum principal amount of Notes
that does not exceed the Excess Proceeds at an offer price in cash in an amount
equal to 100% of the principal amount thereof, plus accrued and unpaid interest
and Liquidated Damages, if any, thereon to the date of purchase, in accordance
with the procedures set forth in the Indenture. To the extent that the aggregate
principal amount of Notes tendered pursuant to an Asset Sale Offer is less than
the Excess Proceeds, the Company may use any remaining Excess Proceeds for
general corporate purposes. If the aggregate principal amount of Notes tendered
exceeds the amount of Excess Proceeds, the Notes to be purchased shall be
selected on a pro rata basis.
9. Denominations, Transfer, Exchange.
The Notes are in registered form without coupons in denominations of
$1,000 and integral multiples of $1,000. The transfer of Notes may be registered
and Notes may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture. The Company
need not exchange or register the transfer of any Note
-6-
or portion of a Note selected for redemption, except for the unredeemed portion
of any Note being redeemed in part. Also, the Company need not exchange or
register the transfer of any Notes for a period of 15 days before the day of any
selection of Notes to be redeemed or during the period between a record date and
the next succeeding Interest Payment Date.
10. Persons Deemed Owners.
The registered Holder of a Note may be treated as its owner for all
purposes.
11. Amendment, Supplement And Waiver.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the then outstanding Notes, and any existing default or
compliance with any provision of the Indenture or the Notes may be waived with
the consent of the Holders of a majority in principal amount of the then
outstanding Notes. Without the consent of any Holder of a Note, the Indenture or
the Notes may be amended or supplemented to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Notes in addition to or in place of
certificated Notes, to provide for the assumption of the Company's or any
Guarantor's obligations to Holders of the Notes in case of a merger,
consolidation or sale of assets, to provide security for the Notes, to add a
Guarantor, to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the legal
rights under the Indenture of any such Holder, or to comply with the
requirements of the SEC in order to effect or maintain the qualification of the
Indenture under the Trust Indenture Act.
12. Events of Default And Remedies.
Events of Default include: (i) default for 30 days or more in the
payment when due of interest on, or Liquidated Damages, if any, with respect to,
the Notes; (ii) default in payment when due (whether payable at maturity, upon
redemption or otherwise) of principal of or premium, if any, on the Notes; (iii)
failure by the Company or any of its Restricted Subsidiaries to comply with
Sections 3.10, 4.16, 4.17 or 5.01 of the Indenture; (iv) failure by the Company
or any of its Restricted Subsidiaries for 30 days after written notice by the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes to comply with any of its other agreements in the Indenture or
the Notes other than those referred to in clauses (i) through (iii) above; (v)
default under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for money
borrowed by the Company or any of its Restricted Subsidiaries (or the payment of
which is guaranteed by the Company or any of its Restricted Subsidiaries),
whether such Indebtedness or guarantee now exists, or is created after the
Closing Date, which default (a) is caused by a failure to pay principal of or
premium, if any, or interest on such Indebtedness prior to the expiration of the
grace period, if any, provided in such Indebtedness on the date of such default
(a "Payment Default") or (b) results in the acceleration of such Indebtedness
prior to its express maturity and, in each case, the principal amount of any
such Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the maturity of
which has been so accelerated, aggregates $5.0 million or more; (vi) failure by
the Company or any of its Restricted Subsidiaries to pay final judgments
aggregating in excess of $5.0 million and either (a) any creditor commences
enforcement proceedings upon any such judgment or (b) such judgments are not
paid, discharged or stayed for a period of 60 days; (vii) except as permitted by
the Indenture, any
-7-
Guarantee of the Notes shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any other reason to be in full force
and effect, or any Guarantor, or any Person acting on behalf of any Guarantor,
shall deny or disaffirm its obligations under its Subsidiary Guarantee; and
(viii) certain events of bankruptcy or insolvency with respect to the Company,
any of its Restricted Subsidiaries that is a Significant Subsidiary or any group
of its Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary. If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes and all other Obligations thereunder
to be due and payable by notice in writing to the Company and the Trustee.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, with respect to the Company, any of
its Restricted Subsidiaries that is a Restricted Subsidiary or any group of its
Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary, all outstanding Notes will become due and payable without further
action or notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a majority
in principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal, premium, if any, interest
or Liquidated Damages, if any) if it determines that withholding notice is in
their interest. The Holders of a majority in aggregate principal amount of the
Notes then outstanding by notice to the Trustee may on behalf of the Holders of
all of the Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of Default
in the payment of principal of, premium and Liquidated Damages, if any, or
interest on the Notes.
13. Subsidiary Guarantees.
Pursuant to the Indenture, payment of the Notes is guaranteed, jointly
and severally, on a senior basis by Sbarro Properties, Inc., Sbarro America,
Inc., Sbarro America Properties Inc., Italian Food Franchising, Inc., Corest
Management, Inc., Franrest Management, Inc., Larkfield Equipment Corp., Sbarro
Foods, Inc., Sbarro of Roosevelt Field, Inc., Demefac Leasing Corp., Franchise
Contracting and Equipment Corp., Melville Advertising Agency Inc., Sbarro
Commack, Inc., Sbarro of Las Vegas, Inc., Sbarro of Hawaii, Inc., Sbarro
Franchise Associates, Inc., Sbarro H.D.F., Inc., N.H.D., Inc., Bushranger
Holding, Inc., Melville Pizzeria, Inc., Sbarro One World Trade, Inc., 401
Broadhollow Realty Corp., 000 Xxxxxxxxxxx Xxxxxxx Xxxxxx Corp., Sbarro Bistros,
Inc., and Syosset Bistro, Inc., each a New York corporation, Sbarro's of Texas,
Inc., a Texas corporation, Sbarro of Virginia, Inc., a Virginia corporation,
Sbarro Dominion Limited, a Canadian corporation, and Sbarro Pennsylvania, Inc.,
a Pennsylvania corporation, and, under certain circumstances set forth in the
Indenture, may be guaranteed by certain other Restricted Subsidiaries of the
Company. Under certain circumstances set forth in the Indenture, each of the
Guarantors may be released from its obligations under the Indenture and the
Notes.
-8-
14. Trustee Dealings With Company.
The Trustee, in its individual or any other capacity, may make loans
to, accept deposits from, and perform services for the Company, any Guarantor or
any Affiliate of the Company, and may otherwise deal with the Company, any
Guarantor or any Affiliate of the Company, as if it were not the Trustee.
15. No Recourse Against Others.
No director, officer, employee, incorporator or stockholder, of the
Company or any Guarantor, as such, shall have any liability for any obligations
of the Company or such Guarantor under the Notes or the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
16. Authentication.
This Note shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.
17. aAbbreviations.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
18. Additional Rights of Holders of Restricted
Global Notes and Restricted Definitive Notes.
In addition to the rights provided to Holders of Notes under the Indenture,
Holders of Restricted Global Notes and Restricted Definitive Notes shall have
all the rights set forth in the Registration Rights Agreement dated as of
September 15, 1999 (the "Registration Rights Agreement"), among the Company, the
Guarantors and the Initial Purchasers.
19. Governing Law.
THE INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Notes
-9-
and the Trustee may use CUSIP numbers in notices of redemption as a convenience
to Holders. No representation is made as to the accuracy of such numbers either
as printed on the Notes or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
SBARRO, INC.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
-10-
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: ________________________________
(Insert assignee's legal name)
_______________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note 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 face of this Note)
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
-11-
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.16 or 4.17 of the Indenture, check the appropriate box
below:
/_/ Section 4.16 /_/ Section 4.17
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.16 or Section 4.17 of the Indenture, state the
amount you elect to have purchased:
$___________________
Date: _____________________
Your Signature: _____________________________
(Sign exactly as your name appears on the face
of this Note)
Tax Identification No.:
Signature Guarantee*: ______________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
-12-
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Principal Amount Signature of
Amount of decrease in Amount of increase in of this Global Note authorized signatory
Principal Amount Principal Amount following such of Trustee or
Date of Exchange of this Global Note of this Global Note decrease (or increase) Note Custodian
---------------- ---------------------- --------------------- --------------------- ----------------------
-13-
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
SBARRO, INC.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
FIRSTAR BANK, N.A.
Corporate Trust Department
000 Xxxx 0xx Xxxxxx, 00xx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, III
ss Re: 11% Senior Notes due 2009
Reference is hereby made to the Indenture, dated as of September 28,
1999 (the "INDENTURE"), among SBARRO, INC., as issuer (the "COMPANY"), the
Guarantors named on the signature pages thereto and FIRSTAR BANK, N.A., as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
___________________ (the "TRANSFEROR") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "TRANSFER"),
to ___________________________ (the "TRANSFEREE"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. |_| Check if Transferee will take delivery of a beneficial interest
in the 144A Global Note or a Definitive Note Pursuant to Rule 144A. The Transfer
is being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "SECURITIES ACT"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
2. |_| Check if Transferee will take delivery of a beneficial interest
in the Regulation S Global Note or a Definitive Note pursuant to Regulation S.
The Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and, accordingly, the Transferor hereby
further certifies that (i) the Transfer is not being made to a person in the
United States and (x) at the time the buy order was originated, the Transferee
was outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). Upon consummation of the proposed transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Regulation S Global Note, the Temporary
Regulation S Global Note and/or the Definitive Note and in the Indenture and the
Securities Act.
3. |_| Check and complete if Transferee will take delivery of a
beneficial interest in the IAI Global Note or a Definitive Note pursuant to any
provision of the Securities Act other than Rule 144A or Regulation S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) |_| such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) |_| such Transfer is being effected to the Company or a subsidiary
thereof;
or
(c) |_| such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) |_| such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of
the Securities
-2-
Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor hereby
further certifies that it has not engaged in any general solicitation
within the meaning of Regulation D under the Securities Act and the
Transfer complies with the transfer restrictions applicable to beneficial
interests in a Restricted Global Note or Restricted Definitive Notes and
the requirements of the exemption claimed, which certification is supported
by (1) a certificate executed by the Transferee in the form of Exhibit D to
the Indenture and (2) an Opinion of Counsel provided by the Transferor or
the Transferee (a copy of which the Transferor has attached to this
certification), to the effect that such Transfer is in compliance with the
Securities Act. Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the IAI Global Note and/or
Definitive Notes and in the Indenture and the Securities Act.
4. |_| Check if Transferee will take delivery of a beneficial interest
in an Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) |_| Check if Transfer is pursuant to Rule 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any state
of the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will no longer be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Notes, on Restricted Definitive
Notes and in the Indenture.
(b) |_| Check if Transfer is Pursuant to Regulation S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 904
under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of
any state of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will no
longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(c) |_| Check if Transfer is Pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule
144 or Rule 904 and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any State
of the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will not be subject to
the restrictions on transfer enumerated in the Private Placement Legend
printed on the Restricted Global Notes or Restricted Definitive Notes and
in the Indenture.
-3-
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
_______________________________________
[Insert Name of Transferor]
By: __________________________________
Name:
Title:
Dated: ___________________
p
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) |_| a beneficial interest in the:
(i) |_| 144A Global Note (CUSIP _________); or
(ii) |_| Regulation S Global Note (CUSIP _________); or
(iii) |_| IAI Global Note (CUSIP ____________); or
(b) [_| a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) |_| a beneficial interest in the:
(i) |_| 144A Global Note (CUSIP _________); or
(ii) |_| Regulation S Global Note (CUSIP _________); or
(iii) |_| IAI Global Note (CUSIP ____________); or
(iv) |_| Unrestricted Global Note (CUSIP); or
(b) |_| a Restricted Definitive Note; or
(c) |_| an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
SBARRO, INC.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
FIRSTAR BANK, N.A.
Corporate Trust Department
000 Xxxx 0xx Xxxxxx, 00xx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, III
Re: 11% Senior Notes due 2009
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of September 28,
1999 (the "INDENTURE"), among SBARRO, INC., as issuer (the "COMPANY"), the
Guarantors named on the signature pages thereto and FIRSTAR BANK, N.A., as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
__________________________ (the "OWNER") owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount of $____________ in such Note[s] or interests (the "EXCHANGE"). In
connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a
Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests
in an Unrestricted Global Note
(a) |_| Check if Exchange is from beneficial interest in a Restricted
Global Note to beneficial interest in an Unrestricted Global Note. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global Note
for a beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Global
Notes and pursuant to and in accordance with the United States Securities Act of
1933, as amended (the "SECURITIES ACT"), (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the beneficial
interest in an Unrestricted Global Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(b) |_| Check if Exchange is from beneficial interest in a Restricted
Global Note to Unrestricted Definitive Note. In connection with the Exchange of
the Owner's beneficial
interest in a Restricted Global Note for an Unrestricted Definitive Note, the
Owner hereby certifies (i) the Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Restricted Global Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Definitive Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
(c) |_| Check if Exchange is from Restricted Definitive Note to
beneficial interest in an Unrestricted Global Note. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) |_| Check if Exchange is from Restricted Definitive Note to
Unrestricted Definitive Note. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in
Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests
in Restricted Global Notes
(a) |_| Check if Exchange is from beneficial interest in a Restricted
Global Note to Restricted Definitive Note. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Note is being acquired for the Owner's own account
without transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Restricted Definitive Note issued will continue
to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the Indenture
and the Securities Act.
(b) |_| Check if Exchange is from Restricted Definitive Note to
beneficial interest in a Restricted Global Note. In connection with the Exchange
of the Owner's Restricted Definitive Note for a beneficial interest in the
[CHECK ONE] |_| 144A Global Note, |_| Regulation S Global Note, |_| IAI Global
Note with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer
-2-
and (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Definitive Notes and pursuant to and
in accordance with the Securities Act, and in compliance with any applicable
blue sky securities laws of any state of the United States. Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
beneficial interest issued will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the relevant Restricted
Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
[Insert Name of Transferor]
By: _______________________________________
Name:
Title:
Dated: _________________________
-3-
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
SBARRO, INC.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
FIRSTAR BANK, N.A.
Corporate Trust Department
000 Xxxx 0xx Xxxxxx, 00xx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, III
Re: 11% Senior Notes due 2009
Reference is hereby made to the Indenture, dated as of September 28,
1999 (the "INDENTURE"), among SBARRO, INC., as issuer (the "COMPANY"), the
Guarantors named on the signature pages thereto and FIRSTAR BANK, N.A., as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) |_| a beneficial interest in a Global Note, or
(b) |_| a Definitive Note,
we confirm that:
1. We understand that the Notes have not been registered under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), and may not be sold
except as permitted in the following sentence. We agree on our own behalf and on
behalf of any investor account for which we are purchasing the Notes to offer,
sell or otherwise transfer such Notes prior to the date which is two years after
the later of the date of original issue and the last date on which the Company
or any affiliate of the Company was the owner of such Notes, or any predecessor
thereto (the "RESALE RESTRICTION TERMINATION DATE") only (a) to the Company, (b)
pursuant to a registration statement which has been declared effective under the
Securities Act, (c) for so long as the Notes are eligible for resale pursuant to
Rule 144A under the Securities Act, to a person we reasonably believe is a
qualified institutional buyer under Rule 144A (a "QIB") that purchases for its
own account or for the account of a QIB to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) pursuant to offers and
sales to non-U.S. Persons that occur outside the United States within the
meaning of Regulations S under the Securities Act, (e) to an institutional
"accredited investor" within the meaning of subparagraph (a)(1), (2), (3) or (7)
of Rule 501 under the Securities Act that is acquiring the Notes for its own
account or for the account of such an institutional "accredited investor" for
investment purposes and not with a view to, or for offer or
sale in connection with, any distribution thereof in violation of the Securities
Act or (f) pursuant to any other available exemption from the registration
requirements of the Securities Act, subject in each of the foregoing cases to
any requirement of law that the disposition of our property and the property of
such investor account or accounts be at all times within our or their control
and to compliance with any applicable state securities laws. The foregoing
restrictions on resale will not apply subsequent to the Resale Restriction
Termination Date. If any resale or other transfer of the Notes is proposed to be
made pursuant to clause (e) above prior to the Resale Restriction Termination
Date, the transferor shall deliver a letter from the transferee substantially in
the form of this letter to the Trustee, which shall provide, among other things,
that the transferee is an institutional "accredited investor" within the meaning
of subparagraph (a)(1), (2), (3) or (7) or Rule 501 under the Securities Act and
that it is acquiring such Notes for investment purposes and not for distribution
in violation of the Securities Act. We acknowledge that the Company and the
Trustee reserve the right prior to any offer, sale or other transfer prior to
the Resale Restriction Termination Date of the Notes pursuant to clauses (d),
(e) and (f) above to require the delivery of an Opinion of Counsel,
certifications and/or other information satisfactory to the Company and the
Trustee.
2. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) purchasing
for our own account or for the account of such an institutional "accredited
investor", and we are acquiring the Notes for investment purposes and not with a
view to, or for offer or sale in connection with, any distribution in violation
of the Securities Act and we have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our
investment in the Notes, and we and any accounts for which we are acting are
each able to bear the economic risk of our or its investment.
3. We are acquiring the Notes or beneficial interest therein purchased
by us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
____________________________________________
[Insert Name of Accredited Investor]
By: _______________________________________
Name:
Title:
Dated: _____________________
