1
EXHBIT 4.30
================================================================================
XXXXXXX CONTAINER CORPORATION,
as Issuer
------------------------------
and
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
------------------------------
as Trustee
INDENTURE
Dated as of February 23, 1998
================================================================================
$250,000,000
9 7/8% Senior Subordinated Notes due 2008, Series A
9 7/8% Senior Subordinated Notes due 2008, Series B
2
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- ----------
310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . 7.08; 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) . . . . . . . . . . . . . . . . . . . . . . . . 11.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . 11.03
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . 7.06; 11.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . 4.07; 4.09;
11.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . 11.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . N.A
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . 7.01(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . 7.05; 11.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . 7.01(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . 7.01(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316 (a)(last sentence) . . . . . . . . . . . . . . . . 2.09
--------------------
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
a part of the Indenture
3
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . 6.07
317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . 11.01
(c) . . . . . . . . . . . . . . . . . . . . . . . . 11.01
--------------------
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
a part of the Indenture
4
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Incorporation by Reference of TIA. . . . . . . . . . . . . . 28
SECTION 1.03. Rules of Construction. . . . . . . . . . . . . . . . . . . . 28
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating. . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.02. Execution and Authentication. . . . . . . . . . . . . . . . . 30
SECTION 2.03. Registrar and Paying Agent. . . . . . . . . . . . . . . . . . 31
SECTION 2.04. Paying Agent To Hold Assets in Trust. . . . . . . . . . . . . 32
SECTION 2.05. Noteholder Lists. . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 2.06. Transfer and Exchange. . . . . . . . . . . . . . . . . . . . 33
SECTION 2.07. Replacement Notes. . . . . . . . . . . . . . . . . . . . . . 34
SECTION 2.08. Outstanding Notes. . . . . . . . . . . . . . . . . . . . . . 35
SECTION 2.09. Treasury Notes. . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 2.10. Temporary Notes. . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 2.11. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 2.12. Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . 37
SECTION 2.13. CUSIP Number. . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 2.14. Deposit of Moneys. . . . . . . . . . . . . . . . . . . . . . 37
SECTION 2.15. Restrictive Legends. . . . . . . . . . . . . . . . . . . . . 38
SECTION 2.16. Book-Entry Provisions for Global Note. . . . . . . . . . . . 40
SECTION 2.17. Special Transfer Provisions. . . . . . . . . . . . . . . . . 42
SECTION 2.18. Designation. . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee. . . . . . . . . . . . . . . . . . . . . . 45
SECTION 3.02. Selection of Notes To Be Redeemed. . . . . . . . . . . . . . 45
SECTION 3.03. Notice of Redemption. . . . . . . . . . . . . . . . . . . . . 46
-i-
5
SECTION 3.04. Effect of Notice of Redemption. . . . . . . . . . . . . . . . 47
SECTION 3.05. Deposit of Redemption Price. . . . . . . . . . . . . . . . . 47
SECTION 3.06. Notes Redeemed in Part. . . . . . . . . . . . . . . . . . . . 47
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes. . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 4.02. Maintenance of Office or Agency. . . . . . . . . . . . . . . 48
SECTION 4.03. Limitation on Restricted Payments. . . . . . . . . . . . . . 49
SECTION 4.04. Corporate Existence. . . . . . . . . . . . . . . . . . . . . 51
SECTION 4.05. Payment of Taxes and Other Claims. . . . . . . . . . . . . . 52
SECTION 4.06. Maintenance of Properties and Insurance. . . . . . . . . . . 52
SECTION 4.07. Compliance Certificate; Notice of Default. . . . . . . . . . 53
SECTION 4.08. Compliance with Laws. . . . . . . . . . . . . . . . . . . . . 54
SECTION 4.09. SEC Reports. . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 4.10. Waiver of Stay, Extension or Usury Laws. . . . . . . . . . . 55
SECTION 4.11. Limitation on Transactions with Affiliates. . . . . . . . . . 56
SECTION 4.12. Limitation on Incurrence of Additional Indebtedness. . . . . 57
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries. . . . . . . . . . . . . . 57
SECTION 4.14. Prohibition on Incurrence of Senior Subordinated Debt. . . . 58
SECTION 4.15. Change of Control. . . . . . . . . . . . . . . . . . . . . . 59
SECTION 4.16. Limitation on Asset Sales. . . . . . . . . . . . . . . . . . 61
SECTION 4.17. Guarantees by Restricted Subsidiaries. . . . . . . . . . . . 65
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc. . . . . . . . . . . . . . . . . 66
SECTION 5.02. Successor Corporation Substituted. . . . . . . . . . . . . . 68
-ii-
6
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. . . . . . . . . . . . . . . . . . . . . . 68
SECTION 6.02. Acceleration. . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 6.03. Other Remedies. . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 6.04. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . 72
SECTION 6.05. Control by Majority. . . . . . . . . . . . . . . . . . . . . 72
SECTION 6.06. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . 72
SECTION 6.07. Rights of Holders To Receive Payment. . . . . . . . . . . . . 73
SECTION 6.08. Collection Suit by Trustee. . . . . . . . . . . . . . . . . . 73
SECTION 6.09. Trustee May File Proofs of Claim. . . . . . . . . . . . . . . 74
SECTION 6.10. Priorities. . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 6.11. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . 75
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee. . . . . . . . . . . . . . . . . . . . . . 75
SECTION 7.02. Rights of Trustee. . . . . . . . . . . . . . . . . . . . . . 77
SECTION 7.03. Individual Rights of Trustee. . . . . . . . . . . . . . . . . 79
SECTION 7.04. Trustee's Disclaimer. . . . . . . . . . . . . . . . . . . . . 79
SECTION 7.05. Notice of Default. . . . . . . . . . . . . . . . . . . . . . 79
SECTION 7.06. Reports by Trustee to Holders. . . . . . . . . . . . . . . . 80
SECTION 7.07. Compensation and Indemnity. . . . . . . . . . . . . . . . . . 80
SECTION 7.08. Replacement of Trustee. . . . . . . . . . . . . . . . . . . . 81
SECTION 7.09. Successor Trustee by Merger, Etc. . . . . . . . . . . . . . . 82
SECTION 7.10. Eligibility; Disqualification. . . . . . . . . . . . . . . . 83
SECTION 7.11. Preferential Collection of Claims Against Company. . . . . . 83
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of Company's Obligations. . . . . . . . . . . . . 83
SECTION 8.02. Acknowledgment of Discharge by Trustee. . . . . . . . . . . . 86
SECTION 8.03. Application of Trust Money. . . . . . . . . . . . . . . . . . 86
SECTION 8.04. Repayment to the Company. . . . . . . . . . . . . . . . . . . 86
SECTION 8.05. Reinstatement. . . . . . . . . . . . . . . . . . . . . . . . 87
-iii-
7
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. . . . . . . . . . . . . . . . . . 88
SECTION 9.02. With Consent of Holders. . . . . . . . . . . . . . . . . . . 88
SECTION 9.03. Compliance with TIA. . . . . . . . . . . . . . . . . . . . . 90
SECTION 9.04. Revocation and Effect of Consents. . . . . . . . . . . . . . 90
SECTION 9.05. Notation on or Exchange of Notes. . . . . . . . . . . . . . . 91
SECTION 9.06. Trustee To Sign Amendments, Etc. . . . . . . . . . . . . . . 91
ARTICLE TEN
SUBORDINATION
SECTION 10.01. Notes Subordinated to Senior Debt. . . . . . . . . . . . . . 92
SECTION 10.02. No Payment on Notes in Certain Circumstances. . . . . . . . 92
SECTION 10.03. Payment Over of Proceeds upon Dissolution, Etc. . . . . . . 94
SECTION 10.04. Payments May Be Paid Prior to Dissolution. . . . . . . . . . 96
SECTION 10.05. Subrogation. . . . . . . . . . . . . . . . . . . . . . . . . 97
SECTION 10.06. Obligations of the Company Unconditional. . . . . . . . . . 97
SECTION 10.07. Notice to Trustee. . . . . . . . . . . . . . . . . . . . . . 98
SECTION 10.08. Reliance on Judicial Order or Certificate of Liquidating
Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . 98
SECTION 10.09. Trustee's Relation to Senior Debt. . . . . . . . . . . . . . 99
SECTION 10.10. Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Debt. . . . . . . . . . . 99
SECTION 10.11. Noteholders Authorize Trustee to Effectuate Subordination
of Notes. . . . . . . . . . . . . . . . . . . . . . . . . . 100
SECTION 10.12. This Article Ten Not to Prevent Events of Default. . . . . . 101
SECTION 10.13. Trustee's Compensation Not Prejudiced. . . . . . . . . . . . 101
-iv-
8
ARTICLE ELEVEN
GUARANTEE
SECTION 11.01. Unconditional Guarantee. . . . . . . . . . . . . . . . . . . 101
SECTION 11.02. Severability. . . . . . . . . . . . . . . . . . . . . . . . 102
SECTION 11.03. Limitation of Liability. . . . . . . . . . . . . . . . . . . 103
SECTION 11.04. Subsidiary Guarantors May Consolidate, etc., on Certain
Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . 103
SECTION 11.05. Contribution. . . . . . . . . . . . . . . . . . . . . . . . 104
SECTION 11.06. Waiver of Subrogation. . . . . . . . . . . . . . . . . . . . 105
SECTION 11.07. Execution of Guarantee. . . . . . . . . . . . . . . . . . . 105
SECTION 11.08. Waiver of Stay, Extension or Usury Laws. . . . . . . . . . . 106
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TIA Controls. . . . . . . . . . . . . . . . . . . . . . . . 107
SECTION 12.02. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . 107
SECTION 12.03. Communications by Holders with Other Holders. . . . . . . . 109
SECTION 12.04. Certificate and Opinion as to Conditions Precedent. . . . . 109
SECTION 12.05. Statements Required in Certificate or
Opinion. . . . . . . . . . . . . . . . . . . . . . . . . . 109
SECTION 12.06. Rules by Trustee, Paying Agent, Registrar. . . . . . . . . . 110
SECTION 12.07. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . 110
SECTION 12.08. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . 110
SECTION 12.09. No Adverse Interpretation of Other Agreements. . . . . . . . 111
SECTION 12.10. No Recourse Against Others. . . . . . . . . . . . . . . . . 111
SECTION 12.11. Successors. . . . . . . . . . . . . . . . . . . . . . . . . 111
SECTION 12.12. Duplicate Originals. . . . . . . . . . . . . . . . . . . . . 111
SECTION 12.13. Severability. . . . . . . . . . . . . . . . . . . . . . . . 111
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Exhibit A - Form of Note . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B - Form of Exchange Note . . . . . . . . . . . . . . . . . . . . . B-1
-v-
9
Exhibit C - Form of Certificate To Be Delivered in Connection with
Transfers to Non-QIB Accredited Investors . . . . . . . . . C-1
Exhibit D - Form of Certificate To Be Delivered in Connection with
Transfers Pursuant to Regulation S . . . . . . . . . . . . . D-1
Exhibit E - Form of Guarantee . . . . . . . . . . . . . . . . . . . . . E-1
Note: This Table of Contents shall not, for any purpose, be deemed to be part
of the Indenture.
-vi-
10
INDENTURE, dated as of February 23, 1998, between Xxxxxxx
Container Corporation, a Delaware corporation (the "Company"), and Chase Bank
of Texas, National Association, as Trustee (the "Trustee").
The Company has duly authorized the creation of an issue of 9
7/8% Senior Subordinated Notes due 2008, Series A (the "Initial Notes"), and 9
7/8% Senior Subordinated Notes due 2008, Series B (the "Exchange Notes" and,
together with the Initial Notes, the "Notes"), and, to provide therefor, the
Company has duly authorized the execution and delivery of this Indenture. All
things necessary to make the Notes, when duly issued and executed by the
Company, and authenticated and delivered hereunder, the valid obligations of
the Company, and to make this Indenture a valid and binding agreement of the
Company, have been done.
Each party hereto agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Notes:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person or any of
its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary of the Company or assumed in connection with the acquisition of
assets from such Person and not incurred by such Person in connection with, or
in anticipation or contemplation of, such Person becoming a Restricted
Subsidiary of the Company or such acquisition.
"Affiliate" means a Person who directly or indirectly through one
or more intermediaries controls, or is controlled by, or is under common
control with, the Company. The term "control" means the possession, directly
or indirectly, of the
11
-2-
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise; and the terms "affiliated," "controlling" and "controlled" have
meanings correlative to the foregoing. Notwithstanding the foregoing, any
Person established in connection with any Trade Receivable Facility shall not
be deemed an Affiliate. For purposes of Section 4.11, the term "Affiliate"
shall include any Person who, as a result of any transaction described in
Section 4.11, would become an Affiliate.
"Affiliate Transaction" has the meaning provided in Section 4.11.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Asset Acquisition" means (i) an Investment by the Company or any
Restricted Subsidiary of the Company in any other Person pursuant to which such
Person shall become a Restricted Subsidiary of the Company or any Restricted
Subsidiary of the Company or shall be merged with the Company or any Restricted
Subsidiary of the Company or (ii) the acquisition by the Company or any
Restricted Subsidiary of the Company of assets of any Person or any division or
line of business of such Person.
"Asset Sale" means the sale, lease (other than an operating
lease), assignment or other disposition (including, without limitation,
dispositions pursuant to Sale and Leaseback Transactions) by the Company or one
of its Restricted Subsidiaries to any Person other than the Company or one of
its Subsidiaries of (i) any capital stock of any Restricted Subsidiary, (ii)
all or substantially all of the properties and assets of any division or line
of business of the Company or any Restricted Subsidiary of the Company or (iii)
any other assets of the Company or any of its Restricted Subsidiaries greater
than $5 million individually, other than those assets sold in the ordinary
course of business of the Company or such Restricted Subsidiary, respectively.
For the purposes of this definition, the term "Asset Sale" shall not include
(i) Capital Stock of
12
-3-
the Company, (ii) any transfer of trade receivable or related assets pursuant
to any Trade Receivable Facility, (iii) any sale, issuance, conveyance,
transfer, lease or other disposition of properties or assets that is governed
by the provisions of Article Five, (iv) an issuance of Capital Stock by a
Restricted Subsidiary to the Company or to a Restricted Subsidiary, (v) a
disposition consisting of a Permitted Investment or Restricted Payment
permitted by Section 4.03, (vi) the surrender or waiver of contract rights or
the settlement, release or surrender of contract, tort or other claims of any
kind, (vii) the grant in the ordinary course of business of any non-exclusive
license of patents, trademarks, registrations thereof and other similar
intellectual property, (viii) the sale or discount, in each case without
recourse, of accounts receivable arising in the ordinary course of business,
but only in connection with the compromise or collection thereof, (ix) the sale
for cash or exchange of specific items of equipment, so long as the purpose of
each such sale or exchange is to acquire (and results within 90 days of such
sale or exchange in the acquisition of) replacement items of equipment which
are the functional equivalent of the item of equipment so sold or exchanged and
(x) disposals or replacements of obsolete equipment in the ordinary course of
business.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal, state or foreign law for the relief of debtors.
"Board of Directors" means, with respect to any Person, the Board
of Directors of such Person or any committee of the Board of Directors of such
Person duly authorized, with respect to any particular matter, to exercise the
power of the Board of Directors of such Person.
"Board Resolution" means, with respect to any Person, a duly
adopted resolution of the Board of Directors or other equivalent governing body
of such Person.
"Borrowing Restricted Subsidiary" means any Restricted Subsidiary
that incurs, or otherwise becomes liable
13
-4-
for, in excess of $5.0 million of Restricted Subsidiary Indebtedness.
"Business Day" means a day that is not a Legal Holiday.
"Capital Stock" means (i) with respect to any Person, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, including each class of common stock and
preferred stock of such Person and (ii) with respect to the Company or any
other Person formed other than as a corporation, any and all partnership or
other equity interests of the Company or such other Person.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Cash Equivalents" means (i) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United
States, in each case maturing within one year from the date of acquisition
thereof; (ii) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Corporation or Xxxxx'x Investors
Service; (iii) commercial paper maturing no more than one year from the date of
creation thereof and, at the time of acquisition, having a rating of at least
A-1 from Standard & Poor's Corporation or at least P-1 from Xxxxx'x Investors
Service; (iv) certificates of deposit or bankers' acceptances maturing within
one year from the date of acquisition thereof issued by any commercial bank
organized under the laws of the United States of America or any state thereof
or the District
14
-5-
of Columbia or any U.S. branch of a foreign bank having at the date of
acquisition thereof combined capital and surplus of not less than $250,000,000;
(v) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (i) above entered into
with any bank meeting the qualifications specified in clause (iv) above and
(vi) investments in money market funds which invest substantially all their
assets in securities of the types described in clauses (i) through (v) above.
"Change of Control" means if at any time any Person or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act)
acquires, in one or more transactions, (i) beneficial ownership (within the
meaning of Rule 13d-3 under the Exchange Act) of 50% or more of the voting
power represented by all voting securities of the Company or (ii) the power to
elect a majority of the Board of Directors of the Company; provided, however,
that voting securities beneficially owned by or voting power controlled by such
Person or group will not be deemed to include common stock beneficially owned
or voting power controlled so long as it is beneficially owned or controlled
directly or indirectly by Mid-America Group, Ltd. ("MAG")(but only so long as
MAG is controlled by Xx. Xxxxxx X. Xxxxxxxxx and/or his spouse or their
respective heirs or lineal descendants), or Xx. Xxxxxx X. Xxxxxxxxx or Xx.
Xxxxxx X. Xxxxxxx, their respective spouses or their respective heirs or lineal
descendants.
"Change of Control Date" has the meaning provided in Section
4.15.
"Change of Control Offer" has the meaning provided in Section
4.15.
"Change of Control Payment Date" has the meaning provided in
Section 4.15.
"Commodity Agreements" means without limitation any commodity
futures contract, commodity option agreement, or other similar agreement or
arrangement entered into by the Company designed to protect the Company against
fluctuations in
15
-6-
the prices commodities used in the ordinary course of business and not entered
into for any other purpose.
"Common Stock" of any Person means any and all shares, interests
or other participations in, and other equivalents (however designated and
whether voting or nonvoting) of such Person's common stock, whether outstanding
on the Issue Date or issued after the Issue Date, and includes, without
limitation, all series and classes of such common stock.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
"Consolidated EBITDA" means, with respect to any Person, for any
period, the sum (without duplication) of (i) Consolidated Net Income, (ii) to
the extent Consolidated Net Income has been reduced thereby, all income taxes
of such Person and its Restricted Subsidiaries paid or accrued in accordance
with GAAP for such period (other than income taxes attributable to
extraordinary, unusual or non-recurring gains or losses), Consolidated Interest
Expense, amortization expense (including write-off of deferred financing costs)
and depreciation expense and (iii) other non-cash items other than non-cash
interest reducing Consolidated Net Income (other than such items incurred in
the ordinary course of business consistent with past practice) less other
non-cash items increasing Consolidated Net Income (other than such items
incurred in the ordinary course of business consistent with past practice), all
as determined on a consolidated basis for such Person and its Restricted
Subsidiaries in conformity with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to
any Person, the ratio of Consolidated EBITDA of such Person during the four
most recent full fiscal quarters for which financial information is available
(the "Four Quarter Period") ending not more than 135 days prior to the date of
the transaction giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio (the "Transaction Date") to Consolidated Fixed Charges of
such Person for the Four Quarter Period. In addition to and without limitation
of the foregoing,
16
-7-
for purposes of this definition, "Consolidated EBITDA" and "Consolidated Fixed
Charges" shall be calculated after giving effect on a pro forma basis for the
Four Quarter Period to (i) the incurrence or repayment of any Indebtedness of
such Person or any of its Restricted Subsidiaries at any time subsequent to the
last day of the Four Quarter Period and on or prior to the Transaction Date, as
if such incurrence or repayment, as the case may be (and the application of the
proceeds thereof), occurred on the first day of the Four Quarter Period and
(ii) any Asset Sales or Asset Acquisitions (including, without limitation, any
Asset Acquisition giving rise to the need to make such calculation as a result
of such Person or one of its Restricted Subsidiaries (including any Person who
becomes a Restricted Subsidiary as a result of the Asset Acquisition)
incurring, assuming or otherwise being liable for Acquired Indebtedness and
also including any Consolidated EBITDA associated with such Asset Acquisition)
occurring during the Four Quarter Period or at any time subsequent to the last
day of the Four Quarter Period and on or prior to the Transaction Date, as if
such Asset Sale or Asset Acquisition (including the incurrence, assumption or
liability for any such Indebtedness or Acquired Indebtedness) occurred on the
first day of the Four Quarter Period. If such Person or any of its Restricted
Subsidiaries directly or indirectly guarantees Indebtedness of a third Person,
the preceding sentence shall give effect to the incurrence of such guaranteed
Indebtedness as if such Person or any Restricted Subsidiary of such Person had
directly incurred or otherwise assumed such guaranteed Indebtedness.
Furthermore, in calculating "Consolidated Fixed Charges," (1) interest on
Indebtedness determined on a fluctuating basis as of the Transaction Date and
that will continue to be so determined thereafter shall be deemed to have
accrued at a fixed rate per annum equal to the rate of interest on such
Indebtedness in effect on the Transaction Date; (2) if interest on any
Indebtedness actually incurred on the Transaction Date may optionally be
determined at an interest rate based upon a factor of a prime or similar rate,
a eurocurrency interbank offered rate, or other rates, then the interest rate
in effect on the Transaction Date will be deemed to have been in effect during
the Four Quarter Period; (3) notwithstanding clause (1) above,
17
-8-
interest on Indebtedness determined on a fluctuating basis, to the extent such
interest is covered by Interest Rate Agreements, shall be deemed to accrue at
the rate per annum resulting after giving effect to the operation of such
Interest Rate Agreements; and (4) the permanent retirement of any Indebtedness
during the Four Quarter Period or at any time subsequent to the last day of the
Four Quarter Period and on or prior to the Transaction Date shall be given
effect as if it occurred at the beginning of such Four Quarter Period.
"Consolidated Fixed Charges" means, with respect to any Person
for any period, the sum, without duplication, of (i) Consolidated Interest
Expense and (ii) the product of (x) the amount of all dividend payments on any
series of preferred stock of such Person (except dividends for such period
which are accrued but unpaid) times (y) a fraction, the numerator of which is
one and the denominator of which is one minus the then current effective
consolidated federal, state and local tax rate of such Person, expressed as a
decimal.
"Consolidated Interest Expense" means, with respect to any Person
for any period, the aggregate of all cash and non-cash interest expense (minus
amortization or write-off of deferred financing costs included in cash or non-
cash interest expense and minus interest income and capitalized interest) with
respect to all outstanding Indebtedness of such Person and its Restricted
Subsidiaries, including the net costs associated with Interest Rate Agreements,
for such period determined on a consolidated basis in conformity with GAAP.
Consolidated Interest Expense of the Company shall not include any prepayment
premiums or amortization of original issue discount or deferred financing
costs.
"Consolidated Net Income" of the Company means, for any period,
the aggregate net income (or loss) of the Company and its Restricted
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP; provided that there shall be excluded therefrom (a) gains and losses
from Asset Sales (without regard to the $5 million limitation set forth in the
definition thereof) or abandonments or reserves relating thereto, (b) items
classified as extraordinary, nonrecurring
18
-9-
or unusual gains and losses, and the related tax effects, (c) the net income
(or loss) of any Person acquired in a pooling of interests transaction accrued
prior to the date it becomes a Restricted Subsidiary of the Company or is
merged or consolidated with the Company or any Restricted Subsidiary, (d) the
net income of any Restricted Subsidiary to the extent that the declaration of
dividends or similar distributions by that Restricted Subsidiary of that income
is restricted by contract, operation of law or otherwise and (e) for the
purpose of calculating Consolidated Net Income for clause (iii)(w) of the first
paragraph of Section 4.03, the net income (or loss) of any Person, other than a
Restricted Subsidiary, except to the extent of cash dividends or distributions
(net of tax, if applicable) paid to the Company or a Restricted Subsidiary of
the Company by such Person.
"Credit Agreement" means the Credit Agreement dated as of
November 17, 1986, and amended and restated as of June 30, 1995, among the
Company, the financial institutions party thereto in their capacities as
lenders thereunder, and Bankers Trust Company as agent for the banks, as the
same may be amended from time to time, and any agreement evidencing the
refinancing, modification, replacement, renewal, restatement, refunding,
deferral, extension, substitution, supplement, reissuance or resale thereof,
whether including any additional obligors or with the same or any different
agent or group of lenders.
"Currency Agreements" means without limitation any foreign
exchange contract, currency swap agreement, cross currency agreement, currency
option agreement, forward currency agreement or other similar agreement or
arrangement entered into by the Company designed to protect the Company against
fluctuations in foreign exchange rates and not entered into for any other
purpose.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
19
-10-
"Default" means an event or condition the occurrence of which is,
or with the lapse of time or the giving of notice or both would be, an Event of
Default.
"Depository" means The Depository Trust Company, its nominees and
successors.
"Designated Senior Debt" means (i) Indebtedness under or in
respect of the Credit Agreement, (ii) the Senior Notes, (iii) the 9 3/4%
Notes, and (iv) any other Indebtedness constituting Senior Debt that, at the
time of designation, has an aggregate principal amount of at least $50 million
and is specifically designated in the instrument evidencing such Senior Debt as
"Designated Senior Debt" by the Company.
"Discharged" has the meaning provided in Section 8.01.
"Disqualified Capital 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
is redeemable at the sole option of the holder thereof, in whole or in part, on
or prior to the Maturity Date of the Notes.
"Equity Offering" means an offering of Common Stock of the
Company resulting in net proceeds to the Company in excess of $20 million.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"Event of Default" has the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Exchange Notes" has the meaning provided in the preamble to this
Indenture.
20
-11-
"Exchange Offer" means the registration by the Company under the
Securities Act pursuant to a registration statement of the offer by the Company
to each Holder of the Initial Notes to exchange all the Initial Notes held by
such Holder for the Exchange Notes in an aggregate principal amount equal to
the aggregate principal amount of the Initial Notes held by such Holder, all in
accordance with the terms and conditions of the Registration Rights Agreement.
"GAAP" means generally accepted accounting principles as in
effect in the United States of America as of the date of this Indenture, except
in respect of any consolidated financial statements delivered pursuant to
Section 4.09 from time to time, GAAP shall mean generally accepted accounting
principles as in effect in the United States of America at the time of delivery
of such consolidated financial statements. If the Company has changed one or
more of the accounting principles used in the preparation of its financial
statements, then a Default or an Event of Default relating to financial ratios
or amounts, calculated under the new accounting principles, shall not be
considered a Default or an Event of Default if the required ratio or amount
would have been complied with had the Company continued to use those generally
accepted accounting principles employed as of the date of this Indenture.
"Global Note" has the meaning provided in Section 2.01.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Registrar's books.
"Indebtedness" means with respect to any Person, without
duplication, (i) all indebtedness of such Person for borrowed money, (ii) all
indebtedness of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all Capitalized Lease Obligations of such Person,
(iv) all indebtedness of such Person issued or assumed as the deferred purchase
price of property, all conditional sale obligations and all indebtedness under
any title retention agreement, (v) all indebtedness of such Person for the
reimbursement of any obligor on any letter of credit, banker's acceptance or
21
-12-
similar credit transaction, (vi) guarantees and other contingent obligations
and (vii) all indebtedness of any other Person of the type referred to in
clauses (i) through (vi) that is secured by any first Lien on any property or
asset of such Person, the amount of such indebtedness being deemed to be the
lesser of the value of such property or asset or the amount of the indebtedness
so secured, but excluding trade accounts payable arising in the ordinary course
of business that are not overdue in excess of 90 days or the subject of a good
faith dispute.
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"Initial Notes" has the meaning provided in the preamble to this
Indenture.
"Initial Purchasers" mean BT Alex. Xxxxx Incorporated, Xxxxxxxxx,
Lufkin & Xxxxxxxx Securities Corporation, Bear, Xxxxxxx & Co. Inc., Salomon
Brothers Inc and NationsBanc Xxxxxxxxxx Securities LLC.
"Institutional Accredited Investor" means an institution that is
an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act.
"Interest Payment Date" means the stated maturity of an
installment of interest on the Notes.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement entered into by the Company designed to protect the
Company against fluctuations in interest rates and not entered into for any
other purpose.
"Interest Swap Obligations" means the obligations of any Person,
pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying
22
-13-
either a floating or a fixed rate of interest on a stated notional amount in
exchange for periodic payments made by such other Person calculated by applying
a fixed or a floating rate of interest on the same notional amount and shall
include, without limitation, interest rate swaps, caps, floors, collars and
similar agreements.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended to the date hereof and from time to time hereafter.
"Investment" means any transfer or delivery of cash, stock or
other property of value in exchange for indebtedness, stock or other security
or ownership interest by way of loan, advance (excluding any advances to
officers and employees in the ordinary course of business) or capital
contribution. The amount of any non-cash Investment (other than a Permitted
Investment) or any Investment in an Unrestricted Subsidiary shall be the fair
market value of such Investment, as determined in good faith by management of
the Company unless the fair market value of such Investment exceeds $10
million, in which case such fair market value shall also be determined in good
faith by the Board of Directors or other equivalent governing body of the
Company at the time such Investment is made. For purposes of the covenant
"Limitations on Restricted Payments," (i) "Investment" in a Subsidiary shall
include the portion (proportionate to the Company's Capital Stock in such
Subsidiary) of the fair market value (as determined in good faith by the Board
of Directors) of such Subsidiary at the time that such Subsidiary is designated
an Unrestricted Subsidiary; provided that upon a redesignation of such
Subsidiary as a Restricted Subsidiary, the Company shall be deemed to continue
to have a permanent "Investment" in an Unrestricted Subsidiary in an amount (if
positive) equal to (x) the Company's "Investment" in such Subsidiary at the
time of such redesignation less (y) the portion (proportionate to the Company's
Capital Stock in such Subsidiary) of the fair market value (as determined in
good faith by the Board of Directors) of the net assets of such Subsidiary at
the time of such redesignation; and (ii) any property transferred to or from an
Unrestricted Subsidiary
23
-14-
shall be valued at its fair market value at the time of such transfer, in each
case determined in good faith by the Board of Directors.
"Issue Date" means the date of original issuance of the Notes
under this Indenture.
"Legal Holiday" has the meaning provided in Section 11.07.
"Lien" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof or any
agreement to give any security interest).
"Make-Whole Premium" with respect to a Note means an amount equal
to the greater of (i) 1.0% of the outstanding principal amount of such Note and
(ii) the excess of (a) the present value of the remaining interest, premium and
principal payments due on such Note as if such Note were redeemed on February
15, 2003, computed using a discount rate equal to the Treasury Rate plus 62.5
basis points, over (b) the outstanding principal amount of such Note.
"Maturity Date" means February 23, 2008.
"Net Cash Proceeds" means, (i) with respect to any Asset Sale,
the proceeds in the form of cash or Cash Equivalents including payments in
respect of deferred payment obligations when received in the form of cash or
Cash Equivalents received by the Company or any of its Restricted Subsidiaries
from such Asset Sale net of (a) reasonable out-of-pocket expenses and fees
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees and sales commissions), (b) taxes paid or payable
((1) including, without limitation, income taxes reasonably estimated to be
actually payable as a result of any disposition of property within two years of
the date of disposition and (2) after taking into account any reduction in tax
liability due to available tax credits or deductions and any tax sharing
arrangements),
24
-15-
(c) a reasonable reserve for the after-tax cost of any indemnification
obligations (fixed and/or contingent) attributable to seller's indemnities to
the purchaser undertaken by the Company or any of its Restricted Subsidiaries
in connection with such Asset Sale and (d) repayment of Indebtedness that is
required to be repaid in connection with such Asset Sale or (ii) with respect
to the sale of Capital Stock by any Person, the aggregate net proceeds received
by such Person after payment of expenses, commissions, underwriting discounts
and other similar charges incurred in connection therewith, whether such
proceeds are in cash or in property (valued at the fair market value thereof,
as determined in good faith by the Board of Directors or other equivalent
governing body of such Person, at the time of receipt, whose determination
shall be evidenced by a Board Resolution).
"Net Proceeds Offer" has the meaning provided in Section 4.16.
"9 3/4% Notes" means $225,000,000 aggregate principal amount of 9
3/4% Notes due 2007 of the Company, as amended or supplemented from time to
time in accordance with the terms thereof.
"9 3/4% Note Indenture" means the indenture dated as of June 12,
1997 between the Company and Fleet National Bank, as Trustee relating to the 9
3/4% Notes, as amended or supplemented from time to time in accordance with the
terms thereof.
"Non-U.S. Person" means a person who is not a U.S. person, as
defined in Regulation S.
"Notes" means the Company's 9 7/8% Senior Subordinated Notes due
2008, as amended or supplemented from time to time in accordance with the
terms hereof, that are issued pursuant to this Indenture.
"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
25
-16-
"Offering Memorandum" means the Offering Memorandum dated
February 13, 1998, pursuant to which the Initial Notes were offered, and any
supplement thereto.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller
or the Secretary of such Person.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Officers or by an Officer and an Assistant Secretary
of such Person and otherwise complying with the requirements of Sections 11.04
and 11.05, as they relate to the making of an Officers' Certificate.
"Offshore Physical Notes" has the meaning provided in Section
2.01.
"Old Notes" means the 12 3/4% Senior Subordinated Discount
Debentures Due 2005.
"Opinion of Counsel" means a written opinion from legal counsel
who is reasonably acceptable to the Trustee complying with the requirements of
Sections 11.04 and 11.05, as they relate to the giving of an Opinion of
Counsel. Unless otherwise required by the TIA, the legal counsel may be an
employee of or counsel to the Company or the Trustee.
"Participants" has the meaning provided in Section 2.16.
"Paying Agent" has the meaning provided in Section 2.03, except
that, for the purposes of Articles Three and Eight and Sections 4.15 and 4.16,
the Paying Agent shall not be the Company or a Subsidiary of the Company.
"Permitted Indebtedness" means, without duplication, (i) the
Notes, the Senior Notes, the 9 3/4% Notes and any Guarantees thereof, (ii)
Indebtedness of the Company and its Restricted Subsidiaries outstanding on the
Issue Date reduced by
26
-17-
the amount of any scheduled amortization payments or mandatory prepayments when
actually paid or permanent reductions thereon (other than permanent reductions
as a result of any refinancing thereof permitted hereunder), (iii) Indebtedness
of the Company and its Restricted Subsidiaries incurred pursuant to the Credit
Agreement in an aggregate principal amount not to exceed $225 million, (iv)
Indebtedness of the Company and its Restricted Subsidiaries incurred pursuant
to Interest Rate Agreements, (v) intercompany Indebtedness by and among the
Company and/or its wholly owned Restricted Subsidiaries, (vi) Indebtedness of
the Company and its Restricted Subsidiaries (including Acquired Indebtedness)
pursuant to pollution control bonds and industrial revenue bonds not to exceed
the sum of the aggregate amount thereof outstanding on the Issue Date plus $25
million, (vii) Indebtedness of the Company and its Restricted Subsidiaries
(including Acquired Indebtedness) evidenced by purchase money obligations and
Capitalized Lease Obligations not to exceed $ 50 million in fiscal year 1998
and $25 million in any subsequent fiscal year; provided that any portion of the
$25 million ($50 million in the case of fiscal year 1998) that is not incurred
in any fiscal year may be carried over to successive fiscal years; provided,
further, that the maximum amount that may be incurred in any one fiscal year
shall not exceed $50 million, (viii) additional Indebtedness of the Company and
its Restricted Subsidiaries (including Acquired Indebtedness) incurred for any
purpose not to exceed, at any time outstanding, $200 million (that may be, but
need not be, incurred in whole or in part under the Credit Agreement), (ix)
Indebtedness incurred pursuant to the Trade Receivable Facility, (x)
Indebtedness of the Company or its Restricted Subsidiaries incurred under one
or more instruments in connection with any refinancing, modification,
replacement, renewal, restatement, refunding, deferral, extension,
substitution, supplement, reissuance or resale (a "refinancing") of existing or
future Indebtedness of such entity; provided that any such incurrence and
related refinancing, together, shall not (1) result in an increase in the
aggregate principal amount of such Indebtedness (except to the extent such
increase is a result of an incurrence or refinancing of additional Indebtedness
otherwise permitted by the Indenture or such increase does not exceed the
27
-18-
amount of premiums, fees and expenses (including underwriting discounts)
relating to such refinancing, modification, replacement, renewal, restatement,
refunding, deferral, extension, substitution, supplement, reissuance or resale
of such existing or future Indebtedness) of the Company and its Restricted
Subsidiaries and (2) create Indebtedness where the Weighted Average Life to
Maturity at the time of such refunded, refinanced, modified, replaced, renewed,
restated, deferred, extended, substituted, supplemented, reissued or resold
Indebtedness is incurred is less than the Weighted Average Life to Maturity of
the Indebtedness being refunded, refinanced, modified, replaced, renewed,
restated, deferred, extended, substituted, supplemented, reissued or resold;
and provided, further, that with respect to the refinancing of Indebtedness
incurred pursuant to clauses (v), (vi), (vii), (xvi) and (xvii), such
Indebtedness may only be refinanced with Indebtedness permitted to be incurred
under such respective clause, (xi) Indebtedness of the Company and its
Restricted Subsidiaries arising in connection with the acquisition or
refinancing of property so long as recourse with respect to such Indebtedness
is limited only to the property being acquired or refinanced or any amendment,
restatement, deferral, extension, modification, refinancing, refunding,
renewal, replacement, substitution, supplement, reissuance or resale thereof so
long as recourse is limited to the property being refinanced, (xii)
Indebtedness of the Company and its Restricted Subsidiaries incurred after the
Issue Date relating to letters of credit available or outstanding under the
Credit Agreement (or any successor thereto), (xiii) surety obligations of the
Company and its Restricted Subsidiaries entered into in the ordinary course of
business, (xiv) Indebtedness of the Company and its Restricted Subsidiaries
incurred to finance the purchase of insurance in the ordinary course of
business, (xv) Indebtedness of the Company and its Restricted Subsidiaries
incurred arising from the honoring by a bank or other financial institution of
a check or draft inadvertently drawn against insufficient funds in the ordinary
course of business, provided that such Indebtedness is extinguished within two
business days of notice of any such incurrence, (xvi) Indebtedness of the
Company and its Restricted Subsidiaries arising from guarantees of loans and
advances by third
28
-19-
parties to employees and officers of the Company or its subsidiaries, not to
exceed $1 million in the aggregate, (xvii) Indebtedness of the Company and its
Restricted Subsidiaries arising from the repurchase of Common Stock not to
exceed $4 million, (xviii) Indebtedness of the Company and its Restricted
Subsidiaries arising from Currency Agreements and Commodity Agreements and
(xix) the Old Notes.
"Permitted Investments" means in the case of the Company or its
Restricted Subsidiaries, (i) an Investment related to the business of the
Company and its Restricted Subsidiaries as it is conducted on the Issue Date,
including, but not limited to, subsidiaries, joint ventures or other business
alliances formed in the ordinary course of business, (ii) Investments in the
Company by any Restricted Subsidiary or Investments by the Company or any
Restricted Subsidiary (including acquisitions) in any other Person, if after
giving effect of any such Investment, such Person would be a wholly owned
Restricted Subsidiary of the Company, (iii) Investments in cash and Cash
Equivalents, (iv) Investments in Productive Assets, (v) Investments in any
Person in connection with the Trade Receivable Facility, (vi) Investments
existing on the date of this Indenture, (vii) loans and advances to employees
and officers of the Company and its Restricted Subsidiaries not in excess of $1
million at any one time outstanding, (viii) accounts receivable created or
acquired in the ordinary course of business, (ix) Interest Rate Agreements,
Currency Agreements and Commodity Agreements entered into in the ordinary
course of the Company's business and otherwise in compliance with this
Indenture, (x) Investments in Unrestricted Subsidiaries in an amount at any one
time outstanding not to exceed $25 million, (xi) guarantees by the Company of
Indebtedness otherwise permitted to be incurred by Restricted Subsidiaries of
the Company under this Indenture and (xii) Investments received by the Company
or its Restricted Subsidiaries as consideration for asset sales, including
Asset Sales; provided in the case of an Asset Sale, such Asset Sale is effected
in compliance with Section 4.16.
29
-20-
"Person" means an individual, partnership, corporation,
unincorporated organization, trust or joint venture, limited liability company
or a governmental agency or political subdivision thereof.
"Physical Notes" has the meaning provided in Section 2.01.
"Plan of Liquidation" means, with respect to any Person, a plan
that provides for, contemplates or the effectuation of which is preceded or
accompanied by (whether or not substantially contemporaneously, in phases or
otherwise) (i) the sale, lease, conveyance or other disposition of all or
substantially all of the assets of such Person otherwise than as an entirety or
substantially as an entirety and (ii) the distribution of all or substantially
all of the proceeds of such sale, lease, conveyance or other disposition and
all or substantially all of the remaining assets of such Person to holders of
Capital Stock of such Person.
"principal" of any Indebtedness (including the Notes) means the
principal amount of such Indebtedness plus the premium, if any, on such
Indebtedness.
"Private Placement Legend" means the legend initially set forth
on the Notes in the form set forth in Section 2.15.
"pro forma" means, with respect to any calculation made or
required to be made pursuant to the terms of this Indenture, a calculation in
accordance with Article 11 of Regulation S-X under the Securities Act as
interpreted by the Company in consultation with its independent certified
public accountants.
"Proceeds Purchase Date" shall have the meaning provided in
Section 4.16.
"Productive Assets" means assets (including Capital Stock) of a
kind used or useable in the business of the Company and its Restricted
Subsidiaries as it is conducted on the Issue Date.
30
-21-
"Qualified Capital Stock" means stock that is not Disqualified
Capital Stock.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Redemption Date," when used with respect to any Note to be
redeemed, means the date fixed for such redemption pursuant to this Indenture
and the Notes.
"Redemption Price," when used with respect to any Note to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
and the Notes.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" means the Registration Rights
Agreement dated February 23, 1998 among the Company and the Initial Purchasers
for the benefit of themselves and the Holders, as the same may be amended or
modified from time to time in accordance with the terms thereof.
"Regulation S" means Regulation S under the Securities Act.
"Representative" means the indenture trustee or other trustee,
agent or representative in respect of any Designated Senior Debt; provided that
if, and for so long as, any Designated Senior Debt lacks such a representative,
then the Representative for such Designated Senior Debt shall at all times
constitute the holders of a majority in outstanding principal amount of such
Designated Senior Debt in respect of any Designated Senior Debt.
"Restricted Payment" has the meaning provided in Section 4.03.
"Restricted Security" has the meaning assigned to such term in
Rule 144(a)(3) under the Securities Act; provided that the Trustee shall be
entitled to request and conclusively rely on an Opinion of Counsel with respect
to whether any Note constitutes a Restricted Security.
31
-22-
"Restricted Subsidiary" means any direct or indirect Subsidiary
of any Person that is not an Unrestricted Subsidiary of such Person.
"Restricted Subsidiary Indebtedness" means (a) Indebtedness
(other than Indebtedness under any Trade Receivable Facility, intercompany
Indebtedness or Indebtedness outstanding on the Issue Date, including any
refinancing of Indebtedness outstanding on the Issue Date to the extent it does
not increase the principal amount of such Indebtedness) incurred by a
Restricted Subsidiary (other than a Subsidiary Guarantor), or (b) the direct or
indirect assumption, guarantee (other than a Guarantee) or other obligation of
any Restricted Subsidiary (other than a Subsidiary Guarantor) for any
Indebtedness of the Company or any other Restricted Subsidiary by way of the
pledge of any intercompany note or otherwise, or (c) the total amount of
committed borrowings under revolving credit facilities under which the
Restricted Subsidiary (other than a Subsidiary Guarantor) is a borrower or
guarantor, but "Restricted Subsidiary Indebtedness" shall not include any
Indebtedness of the Restricted Subsidiary evidenced by purchase money
obligations or Capitalized Lease Obligations provided for under clause (vii)
and Indebtedness provided for under clause (xi) of the definition of Permitted
Indebtedness in an aggregate amount not to exceed $75 million for all
Restricted Subsidiaries.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party providing
for the leasing to the Company or a Subsidiary of any property, whether owned
by the Company or any Subsidiary at the Issue Date or later acquired, which has
been or is to be sold or transferred by the Company or such Subsidiary to such
Person or to any other Person from whom funds have been or are to be advanced
by said Person on the security of such Property.
"SEC" means the Securities and Exchange Commission.
32
-23-
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Senior Debt" means the principal of, premium, if any, and
accrued and unpaid interest (including any interest accruing subsequent to the
filing of a petition in bankruptcy at the rate provided for in the
documentation with respect thereto, whether or not such interest is an allowed
claim under applicable law) on any Indebtedness of the Company, whether
outstanding on the Issue Date or thereafter created, incurred or assumed,
unless, in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall not be senior in right of payment to the
Notes. Without limiting the generality of the foregoing, "Senior Debt" shall
include the monetary obligations of the Company under or with respect to: (a)
the Credit Agreement (including any post-petition interest in any proceeding
pursuant to the Bankruptcy Laws, whether or not allowed, at the applicable rate
under such agreement), (b) the Senior Notes and (c) the 9 3/4% Notes.
Notwithstanding the foregoing, Senior Debt shall not include (i) any
Indebtedness, if the instrument creating or evidencing the same or the
assumption or guarantee thereof expressly provides that such Indebtedness shall
not be senior in right of payment to the Notes, (ii) the Notes, (iii) any
Indebtedness of the Company to a Subsidiary of the Company, (iv) Indebtedness
to, or guaranteed on behalf of, any shareholder, director, officer or employee
of the Company or any Subsidiary (including, without limitation, amounts owed
for compensation), (v) Indebtedness to trade creditors and other amounts
incurred in connection with obtaining goods, materials or services, (vi)
Indebtedness represented by Disqualified Capital Stock, (vii) Indebtedness
incurred in violation of Section 4.12, as such covenant may be amended from
time to time, (viii) Indebtedness incurred in violation of Section 4.14, as
such covenant may be amended from time to time and (ix) the Old Notes.
33
-24-
"Senior Note Indenture" means the indenture dated as of February
23, 1998 between the Company and State Street Bank and Trust, as Trustee,
relating to the Senior Notes as in effect on the Issue Date, as amended or
supplemented from time to time in accordance with the terms thereof.
"Senior Notes" means the $200,000,000 in aggregate principal
amount of 9 3/8% Senior Notes due 2007 of the Company, as amended or
supplemented from time to time in accordance with the terms thereof.
"Significant Restricted Subsidiary" means any Subsidiary of the
Company that satisfies the criteria for a "significant subsidiary" set forth in
Rule 1.02(w) of Regulation S-X under the Securities Act.
"Subsidiary" of any Person means (i) any corporation of which the
outstanding Capital Stock having at least a majority of the votes entitled to
be cast in the election of directors under ordinary circumstances shall at the
time be owned, directly or indirectly, by such Person or (ii) any other Person
of which at least a majority of the voting interest to elect the governing body
or Persons thereof under ordinary circumstances is at the time, directly or
indirectly, owned by such Person.
"Subsidiary Guarantee" has the meaning provided in Section 4.17.
"Subsidiary Guarantor" means each of the Company's Restricted
Subsidiaries that becomes a guarantor of the Notes by executing a supplemental
indenture in form and substance reasonably satisfactory to the Trustee in which
such Restricted Subsidiary agrees to be bound by the terms of the Indenture;
provided that any person constituting a Subsidiary Guarantor as described above
shall cease to constitute a Subsidiary Guarantor when its respective Subsidiary
Guarantee is released in accordance with the terms thereof; provided, further,
that such Subsidiary Guarantee hereunder will be subordinated to senior
indebtedness of such Subsidiary Guarantor to the same extent as the Notes are
subordinated to Senior Debt.
34
-25-
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb), as amended, as in effect on the date on which this Indenture is
qualified under the TIA, except as otherwise provided in Section 9.03.
"Total Tangible Assets" means the Company's total consolidated
assets minus all intangible assets, determined in accordance with GAAP.
"Trade Receivable Facility" means the arrangements that have been
or may be entered into by the Company or one or more of its Restricted
Subsidiaries pursuant to which the Company or one or more of its Restricted
Subsidiaries may either transfer to any other Person or grant a security
interest in any trade receivable and (whether now existing or arising in the
future) any assets related to such trade receivable including, without
limitation, all collateral securing such trade receivable and all material
contracts and all guarantees or other Obligations in respect of such trade
receivable of the Company or one or more of its Restricted Subsidiaries.
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15(519) that has become publicly available at least two business days prior
to the Change of Control Redemption Date (or, if such Statistical Release is no
longer published, any publicly available source or similar market date)) most
nearly equal to the period from the Change of Control Redemption Date to June
15, 2003; provided, however, that if the period from the Change of Control
Redemption Date to June 15, 2003 is not equal to the constant maturity of a
United States Treasury security for which a weekly average yield is given, the
Treasury Rate shall be obtained by 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 period
from the Change of Control Redemption Date to June 15, 2003 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 in this Indenture until a
successor replaces it in accordance with the
35
-26-
provisions of this Indenture and thereafter means such successor.
"Trust Officer" means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"Unrestricted Subsidiary" means any Subsidiary of the Company,
whether existing, newly formed or newly acquired, designated as an Unrestricted
Subsidiary by the Board of Directors of the Company and any Subsidiary of an
Unrestricted Subsidiary, provided, however, that at the time of such
designation (i) no Default or Event of Default shall have occurred and be
continuing, (ii) no portion of any Indebtedness or any other obligation
(contingent or otherwise) of such Subsidiary (a) is guaranteed by, or is
otherwise the subject of credit support provided by the Company or any of its
Restricted Subsidiaries, (b) is recourse to or obligates the Company or any of
its Restricted Subsidiaries in any way or (c) subjects any property or asset of
the Company or any of its Restricted Subsidiaries directly or indirectly,
contingently or otherwise, to the satisfaction of such Indebtedness or other
obligation, (iii) neither the Company nor any of its Restricted Subsidiaries
has any contract, or agreement, arrangement or understanding with such
Subsidiary other than on terms as favorable to the Company or such Restricted
Subsidiary as those that might be obtained at the time from Persons that are
not Affiliates of the Company and (iv) neither the Company nor any of its
Restricted Subsidiaries has any obligations (a) to subscribe for additional
shares of Capital Stock of such Subsidiary or (b) to maintain or preserve such
Subsidiary's financial condition or to cause such Subsidiary to achieve certain
levels of operating results. Any such designation by the Company's Board of
Directors shall be evidenced to the Trustee by filing with the Trustee a
certified certificate stating that such designation complies with the foregoing
conditions. The Company's Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided, however, that immediately
after giving effect to such designation, no Default or Event of Default shall
have occurred and be continuing, including, without
36
-27-
limitation, under the covenants described in Section 4.12 assuming the
incurrence by the Company and its Restricted Subsidiaries at the time of such
designation of all existing Indebtedness of the Unrestricted Subsidiary to be
so designated as a Restricted Subsidiary. In the event of any disposition
involving the Company in which the Company is not the Surviving Person, the
Board of Directors of the Surviving Person may (x) prior to such disposition,
designate any of its Subsidiaries, and any of the Company's Subsidiaries, and
(y) after such disposition, designate any of its direct or indirect
Subsidiaries as an Unrestricted Subsidiary under the same conditions and in the
same manner as the Company under the terms of the Indenture.
"U.S. Government Obligations" has the meaning provided in Section
8.01.
"U.S. Legal Tender" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
"U.S. Physical Notes" has the meaning provided in Section 2.01.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the total
of the product obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"wholly owned Restricted Subsidiary" means any Restricted
Subsidiary of which all of the outstanding voting securities or other equity
ownership interest (other than directors qualifying or similar shares required
to be held by third parties in accordance with applicable law, not in any event
to exceed 5 percent of the total outstanding voting securities)
37
-28-
are owned by the Company or any wholly owned Restricted Subsidiary of the
Company.
SECTION 1.02. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture security holder" means a Holder or a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any
other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule and
not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP as in effect on the date hereof;
(3) "or" is not exclusive;
38
-29-
(4) words in the singular include the plural, and words in the
plural include the singular; and
(5) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section
or other subdivision.
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating.
The Initial Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Exchange Notes and
the Trustee's certificate of authentication shall be substantially in the form
of Exhibit B hereto. The Notes may have notations or depository legends or
endorsements required by law, stock exchange rule or usage. The Company and
the Trustee shall approve the form of the Notes and any notation, legend or
endorsement on them. Each Note shall be dated the date of its issuance and
shall show the date of its authentication.
The terms and provisions contained in the Notes annexed hereto as
Exhibits A & B shall constitute, and are hereby expressly made, a part of this
Indenture and, to the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby; provided, however, that if there are any
inconsistencies between the terms of this Indenture and the terms of the Notes,
the terms of this Indenture shall control.
Notes offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more permanent global Notes in registered form,
substantially in the form set forth in Exhibit A (the "Global Note"), deposited
with the Trustee, as custodian for the Depository, duly executed by the Company
39
-30-
and authenticated by the Trustee as hereinafter provided and shall bear the
legend set forth in Section 2.15. The aggregate principal amount of the Global
Note may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depository, as hereinafter
provided.
Notes offered and sold in offshore transactions in reliance on
Regulation S shall be issued in the form of permanent certificated Notes in
registered form in substantially the form set forth in Exhibit A (the "Offshore
Physical Notes). Notes offered and sold to institutional "accredited investors"
(as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) shall
be issued, and Notes offered and sold in reliance on Rule 144A may be issued,
in the form of permanent certificated Notes in registered form, in
substantially the form set forth in Exhibit A (the "U.S. Physical Notes"). The
Offshore Physical Notes and the U.S. Physical Notes are sometimes collectively
herein referred to as the "Physical Notes."
SECTION 2.02. Execution and Authentication.
Two Officers, or an Officer and an Assistant Secretary, shall
sign, or one Officer shall sign and one Officer or an Assistant Secretary (each
of whom shall, in each case, have been duly authorized by all requisite
corporate actions) shall attest to, the Notes for the Company by manual or
facsimile signature.
If an Officer or Assistant Secretary whose signature is on a Note
was an Officer or Assistant Secretary at the time of such execution but no
longer holds that office or position at the time the Trustee authenticates the
Note, the Note shall nevertheless be valid.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. The
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
40
-31-
The Trustee shall authenticate (i) Initial Notes for original
issue in the aggregate principal amount of up to $250,000,000 and (ii) Exchange
Notes from time to time for issue only in exchange for a like principal of
Initial Notes, in each case, upon receipt of written orders of the Company in
the form of an Officers' Certificate. The Officers' Certificate shall specify
the amount of Notes to be authenticated, the date on which the Notes are to be
authenticated and the aggregate principal amount of Notes outstanding on the
date of authentication and whether the Notes are to be Initial Notes or
Exchange Notes. The aggregate principal amount of Notes outstanding at any
time may not exceed $250,000,000, except as provided in Section 2.07. Upon the
written order of the Company in the form of an Officers' Certificate, the
Trustee shall authenticate Notes in substitution of Notes originally issued to
reflect any name change of the Company.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Notes. Unless otherwise provided in
the 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 the Company and Affiliates of the Company.
The Notes shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency, where (a) Notes
may be presented or surrendered for registration of transfer or for exchange
("Registrar"), (b) Notes may be presented or surrendered for payment ("Paying
Agent") and (c) notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. The Company may also from time to time
designate one or more other offices or agencies where the Notes may be
presented or surrendered for any or all such purposes and may from time to time
rescind such
41
-32-
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, for such purposes. The Company may act as its own Registrar or Paying
Agent except that for the purposes of Articles Three and Eight and Sections
4.15 and 4.16 neither the Company, any Subsidiary of the Company nor any of
their Affiliates shall act as Paying Agent. The Registrar shall keep a
register of the Notes and of their transfer and exchange. The Company, upon
notice to the Trustee, may have one or more co-Registrars and one or more
additional paying agents reasonably acceptable to the Trustee. The term
"Paying Agent" includes any additional paying agent. The Company initially
appoints the Trustee as Registrar and Paying Agent until such time as the
Trustee has resigned or a successor has been appointed.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall
notify the Trustee, in advance, of the name and address of any such Agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall
act as such.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that each Paying Agent shall hold in trust for the
benefit of the Holders or the Trustee all assets held by the Paying Agent for
the payment of principal of, or interest on, the Notes (whether such assets
have been distributed to it by the Company or any other obligor on the Notes),
and shall notify the Trustee of any Default by the Company (or any other
obligor on the Notes) in making any such payment. If the Company or a
Subsidiary of the Company acts as Paying Agent, it shall segregate such assets
and hold them as a separate trust fund. The Company at any time may require a
Paying Agent to distribute all assets held by it to the Trustee and account for
any assets disbursed and the Trustee may at any time during the continuance of
any payment Default, upon written request to a Paying Agent, require such
Paying
42
-33-
Agent to distribute all assets held by it to the Trustee and to account for any
assets distributed. Upon distribution to the Trustee of all assets that shall
have been delivered by the Company to the Paying Agent, the Paying Agent shall
have no further liability for such assets.
SECTION 2.05. Noteholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders. If the Trustee is not the Registrar, the Company shall furnish to
the Trustee before each Record Date and at such other times as the Trustee may
request in writing a list as of such date and in such form as the Trustee may
reasonably require of the names and addresses of the Holders, which list may be
conclusively relied upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
Subject to the provisions of Sections 2.16 and 2.17, when Notes are
presented to the Registrar or a co-Registrar with a request to register the
transfer of such Notes or to exchange such Notes for an equal principal amount
of Notes of other authorized denominations, the Registrar or co-Registrar shall
register the transfer or make the exchange as requested if its requirements for
such transaction are met; provided, however, that the Notes surrendered for
transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Registrar or
co-Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing. To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Notes at the
Registrar's or co-Registrar's request. No service charge shall be made for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchanges or transfers pursuant to Section
2.02, 2.07, 2.10, 3.06, 4.15, 4.16 or 9.05). The Registrar or
43
-34-
co-Registrar shall not be required to register the transfer of or exchange of
any Note (i) during a period beginning at the opening of business 15 days
before the mailing of a notice of redemption of Notes and ending at the close
of business on the day of such mailing and (ii) selected for redemption in
whole or in part pursuant to Article Three, except the unredeemed portion of
any Note being redeemed in part.
Any Holder of the Global Note shall, by acceptance of such Global
Note, agree that transfers of beneficial interests in such Global Note may be
effected only through a book entry system maintained by the Holder of such
Global Note (or its agent), and that ownership of a beneficial interest in the
Note shall be required to be reflected in a book entry.
SECTION 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the
Holder of a Note claims that the Note has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Note if the Trustee's requirements are met. If required by the Trustee or the
Company, such Holder must provide an indemnity bond or other indemnity,
sufficient in the judgment of both the Company and the Trustee, to protect the
Company, the Trustee or any Agent from any loss that any of them may suffer if
a Note is replaced. The Company may charge such Holder for its reasonable,
out-of-pocket expenses in replacing a Note, including reasonable fees and
expenses of counsel. Every replacement Note shall constitute an additional
obligation of the Company.
If, after the delivery of such replacement Note, a bona fide
purchaser of the original Note in lieu of which such replacement Note was
issued presents for payment or registration such original Note, the Trustee
shall be entitled to recover such replacement Note from the Person to whom it
was delivered or any Person taking therefrom, 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.
44
-35-
SECTION 2.08. Outstanding Notes.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those cancelled by it, those delivered to
it for cancellation and those described in this Section as not outstanding. A
Note does not cease to be outstanding because the Company or any of its
Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.07 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held by
a bona fide purchaser. A mutilated Note ceases to be outstanding upon
surrender of such Note and replacement thereof pursuant to Section 2.07.
If on a Redemption Date or the Maturity Date the Paying Agent
(other than the Company or a Subsidiary of the Company) holds U.S. Legal Tender
or U.S. Government Obligations sufficient to pay all of the principal and
interest due on the Notes payable on that date, then on and after that date
such Notes cease to be outstanding and interest on them ceases to accrue;
provided, however, that to the extent the Trustee is enjoined from making
payments to the Holders, interest will continue to accrue until such time as
the Trustee is not so enjoined.
SECTION 2.09. Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver, consent or notice,
Notes owned by the Company or an Affiliate (other than (i) Messrs. Xxxxxx X.
Xxxxxxxxx and Xxxxxx X. Xxxxxxx, (ii) any other Affiliate who is an Affiliate
solely on account of his or its ownership of securities of the Company,
membership on the Board of Directors of the Company or employment by the
Company or any Affiliate of the Company, and (iii) any other Affiliate who is
an Affiliate solely on account of his or its relationship with any Person
described in clauses (i) or (ii) above, except in any case to the extent such
Person
45
-36-
is an affiliate as defined in Section 316(a) of the TIA) shall be considered
as though they are 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 the Trustee knows are so owned shall be so
considered.
SECTION 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes upon receipt of a
written order of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of temporary Notes to be
authenticated and the date on which the temporary Notes are to be
authenticated. Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Company considers appropriate
for temporary Notes. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate upon receipt of a written order of the Company
pursuant to Section 2.02 definitive Notes in exchange for temporary Notes.
SECTION 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee,
or at the direction of the Trustee, the Registrar or the Paying Agent (other
than the Company or a Subsidiary of the Company), and no one else, shall cancel
and, at the written direction of the Company, shall dispose of all Notes
surrendered for transfer, exchange, payment or cancellation. Subject to
Section 2.07, the Company may not issue new Notes to replace Notes that it has
paid or delivered to the Trustee for cancellation. If the Company shall
acquire any of the Notes, such acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Notes unless and until the
same are surrendered to the Trustee for cancellation pursuant to this Section
2.11.
46
-37-
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it
shall, unless the Trustee fixes another record date pursuant to Section 6.10,
pay the defaulted interest, plus (to the extent lawful) any interest payable on
the defaulted interest to the Persons who are Holders on a subsequent special
record date, which date shall be the fifteenth day next preceding the date
fixed by the Company for the payment of defaulted interest or the next
succeeding Business Day if such date is not a Business Day. At least 15 days
before the subsequent special record date, the Company shall mail to each
Holder, with a copy to the Trustee, a notice that states the subsequent special
record date, the payment date and the amount of defaulted interest, and
interest payable on such defaulted interest, if any, to be paid.
SECTION 2.13. CUSIP Number.
The Company in issuing the Notes may use one or more "CUSIP"
numbers, and if so, the Trustee shall use the CUSIP numbers in notices of
redemption or exchange as a convenience to Holders; provided, however, that any
such notice may state that no representation is made as to the correctness or
accuracy of the CUSIP numbers printed in the notice or on the Notes, and that
reliance may be placed only on the other identification numbers printed on the
Notes. The Company shall promptly notify the Trustee of any change in any of
the CUSIP numbers.
SECTION 2.14. Deposit of Moneys.
Prior to each Interest Payment Date and on the Maturity Date, the
Company shall have deposited with the Paying Agent in immediately available
funds money sufficient to make cash payments, if any, due on such Interest
Payment Date or Maturity Date, as the case may be, in a timely manner that
permits the Paying Agent to remit payment to the Holders on such Interest
Payment Date or Maturity Date, as the case may be.
47
-38-
SECTION 2.15. Restrictive Legends.
Each Global Note and Physical Note that constitutes a Restricted
Security shall bear the following legend (the "Private Placement Legend") on
the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "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 (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE ACT) OR (B) IT IS AN "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE ACT)
(AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT
WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY
RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR
ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 000X XXXXX XXX XXX, (X)
XXXXXX XXX XXXXXX XXXXXX TO AN ACCREDITED INVESTOR 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 ACT,
(E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT AND (3) AGREES THAT IT WILL GIVE TO
EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE
48
-39-
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY
WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THE SECURITY, IF THE
PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUER 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 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 ACT.
Each Global Note shall also bear the following legend on the face
thereof:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE
OF THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
49
-40-
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN SECTION 2.17 OF THE INDENTURE.
SECTION 2.16. Book-Entry Provisions for Global Note.
(a) The Global Note initially shall (i) be registered in the
name of the Depository or the nominee of such Depository, (ii) be delivered to
the Trustee as custodian for such Depository and (iii) bear legends as set
forth in Section 2.15.
Members of, or participants in, the Depository ("Participants")
shall have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depository, or the Trustee as its custodian, or under
the Global Note, and the Depository may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of the Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or
the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository
and Participants, the operation of customary practices governing the exercise
of the rights of a Holder of any Note.
(b) Transfers of the Global Note shall be limited to transfers
in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in the Global Note may be
transferred or exchanged for Physical Notes in accordance with the rules and
procedures of the Depository and the provisions of Section 2.17. In addition,
Physical Notes shall be transferred to all beneficial owners in exchange for
their beneficial interests in the Global Note if (i) the Depository notifies
the Company that it is unwilling or unable to continue as Depository for the
Global Note
50
-41-
and a successor depositary is not appointed by the Company within 90 days of
such notice or (ii) an Event of Default has occurred and is continuing and the
Registrar has received a written request from the Depository to issue Physical
Notes.
(c) In connection with any transfer or exchange of a portion of
the beneficial interest in the Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the
Company shall execute, and the Trustee shall authenticate and deliver, one or
more Physical Notes of like tenor and amount.
(d) In connection with the transfer of the entire Global Note to
beneficial owners pursuant to paragraph (b), the Global Note shall be deemed to
be surrendered to the Trustee for cancellation, and the Company shall execute,
and the Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depository in exchange for its beneficial interest in the
Global Note, an equal aggregate principal amount of Physical Notes of
authorized denominations.
(e) Any Physical Note constituting a Restricted Security
delivered in exchange for an interest in the Global Note pursuant to paragraph
(b) or (c) shall, except as otherwise provided by paragraphs (a)(i)(x) and (c)
of Section 2.17, bear the legend regarding transfer restrictions applicable to
the Physical Notes set forth in Section 2.15.
(f) The Holder of the Global Note may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
51
-42-
SECTION 2.17. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors and
Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Note constituting a Restricted
Security to any Institutional Accredited Investor that is not a QIB or to any
Non-U.S. Person:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Security, whether or not such
Note bears the Private Placement Legend, if (x) the
requested transfer is after February 15, 2000 or (y) (1)
in the case of a transfer to an Institutional Accredited
Investor which is not a QIB (excluding Non-U.S. Persons),
the proposed transferee has delivered to the Registrar a
certificate substantially in the form of Exhibit C hereto
or (2) in the case of a transfer to a Non-U.S. Person, the
proposed transferor has delivered to the Registrar a
certificate substantially in the form of Exhibit D hereto
and such other information that the Trustee may reasonably
request in order to confirm that such transaction is being
made pursuant to an exemption from or in a transaction not
subject to the registration requirements of the Securities
Act; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in the Global Note, upon receipt by
the Registrar of (x) the certificate, if any, required by
paragraph (i) above and (y) instructions given in
accordance with the Depository's and the Registrar's
procedures,
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical Notes) a
decrease in the principal amount of the Global Note in an amount equal to the
principal
52
-43-
amount of the beneficial interest in the Global Note to be transferred, and (b)
the Company shall execute and the Trustee shall authenticate and deliver one or
more Physical Notes of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply
with respect to the registration of any proposed transfer of a Note
constituting a Restricted Security to a QIB (excluding transfers to Non-U.S.
Persons):
(i) the Registrar shall register the transfer if such transfer
is being made by a proposed transferor who has checked the
box provided for on the form of Note stating, or has
otherwise advised the Company and the Registrar in
writing, that the sale has been made in compliance with
the provisions of Rule 144A to a transferee who has signed
the certification provided for on the form of Note
stating, or has otherwise advised the Company and the
Registrar in writing, that it is purchasing the Note for
its own account or an account with respect to which it
exercises sole investment discretion and that it and any
such account is a QIB within the meaning of Rule 144A, and
is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such
information regarding the Company as it has requested
pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor
is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule
144A; and
(ii) if the proposed transferee is an Agent Member, and the
Notes to be transferred consist of Physical Notes which
after transfer are to be evidenced by an interest in the
Global Note, upon receipt by the Registrar of instructions
given in accordance with the Depository's and the
Registrar's procedures, the Registrar shall
53
-44-
reflect on its books and records the date and an increase
in the principal amount of the Global Note in an amount
equal to the principal amount of the Physical Notes to be
transferred, and the Trustee shall cancel the Physical
Notes so transferred.
(c) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement
Legend, the Registrar shall deliver only Notes that bear the Private Placement
Legend unless (i) the circumstance contemplated by paragraph (a)(i)(x) of this
Section 2.17 exists or (ii) there is delivered to the Registrar an Opinion of
Counsel reasonably satisfactory to the Company and the Trustee to the effect
that neither such legend nor the related restrictions on transfer are required
in order to maintain compliance with the provisions of the Securities Act.
(d) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.16 or this Section
2.17. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon
the giving of reasonable written notice to the Registrar.
SECTION 2.18. Designation.
The Notes shall rank pari passu for all purposes with the Old
Notes.
54
-45-
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to Paragraph 6 of
the Notes, it shall notify the Trustee and the Paying Agent in writing of the
Redemption Date and the principal amount of the Notes to be redeemed and
whether it wants the Trustee to give notice of redemption to the Holders (at
the Company's expense) at least 40 days (unless a shorter notice shall be
satisfactory to the Trustee) but not more than 60 days before the Redemption
Date. Any such notice may be cancelled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
SECTION 3.02. Selection of Notes To Be Redeemed.
If fewer than all of the Notes are to be redeemed, the Trustee
shall select the Notes to be redeemed in compliance with the requirements of
the principal national securities exchange, if any, on which the Notes being
redeemed are listed, or, if the Notes are not listed on a national securities
exchange, on a pro rata basis.
The Trustee shall make the selection from the Notes outstanding
and not previously called for redemption and shall promptly notify the Company
in writing of the Notes selected for redemption and, in the case of any Note
selected for partial redemption, the principal amount thereof to be redeemed.
Notes in denominations of $1,000 may be redeemed only in whole. The Trustee
may select for redemption portions (equal to $1,000 or any integral multiple
thereof) of the principal of Notes that have denominations larger than $1,000.
Provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
55
-46-
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail or cause to be mailed a notice of redemption by
first class mail to each Holder whose Notes are to be redeemed, with a copy to
the Trustee. At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. Each notice for
redemption shall identify the Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest,
if any, to be paid;
(3) the name and address of the Paying Agent;
(4) that Notes called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price plus accrued interest,
if any;
(5) that, unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the Redemption Date, and the only remaining right of the Holders
of such Notes is to receive payment of the Redemption Price upon
surrender to the Paying Agent of the Notes redeemed;
(6) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
Redemption Date, and upon surrender of such Note, a new Note or Notes in
the aggregate principal amount equal to the unredeemed portion thereof
will be issued; and
(7) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Notes to be
redeemed and the aggregate principal
56
-47-
amount of Notes to be outstanding after such partial redemption.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.03, Notes called for redemption become due and payable on the Redemption Date
and at the Redemption Price plus accrued interest, if any. Upon surrender to
the Trustee or Paying Agent, such Notes called for redemption shall be paid at
the Redemption Price, which shall include accrued and unpaid interest, if any,
thereon to the Redemption Date.
SECTION 3.05. Deposit of Redemption Price.
On or before the Redemption Date, the Company shall deposit with
the Paying Agent U.S. Legal Tender sufficient to pay the Redemption Price,
plus, without duplication, accrued and unpaid interest, if any, of all Notes to
be redeemed on that date (other than Notes or portions thereof called for
redemption on that date that have been delivered by the Company to the Trustee
for cancellation). The Paying Agent shall promptly return to the Company any
U.S. Legal Tender so deposited that is not required for that purpose, except
with respect to monies owed as obligations to the Trustee pursuant to Article
Seven.
If the Company complies with the preceding paragraph, then,
unless the Company defaults in the payment of such Redemption Price, plus,
without duplication, accrued and unpaid interest on the Notes to be redeemed
will cease to accrue on and after the applicable Redemption Date, whether or
not such Notes are presented for payment.
SECTION 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is to be redeemed in part, the
Trustee shall authenticate for the Holder a new Note or Notes equal in
principal amount to the unredeemed portion of the Note surrendered.
57
-48-
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.
The Company shall pay the principal of and interest on the Notes
on the dates and in the manner provided in the Notes. An installment of
principal of or interest on the Notes shall be considered paid on the date it
is due if the Trustee or Paying Agent (other than the Company or a Subsidiary
of the Company) holds on that date U.S. Legal Tender designated for and
sufficient to pay the installment.
The Company shall pay interest on overdue principal from time to
time on demand at the rate of 10 7/8% per annum; it shall pay interest on
overdue installments of interest (without regard to any applicable grace
periods) from time to time on demand at the rate of 10 7/8% per annum.
Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by law,
deduct or withhold income or other similar taxes imposed by the United States
of America from principal or interest payments hereunder.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain the office or agency required under
Section 2.03. The Company shall give prior notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 10.02.
58
-49-
SECTION 4.03. Limitation on Restricted Payments.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, (a) declare or pay any dividend or
make any distribution (other than dividends or distributions payable in
Qualified Capital Stock of the Company) on shares of the Company's Capital
Stock to holders of such Capital Stock, (b) purchase, redeem or otherwise
acquire or retire for value any Capital Stock of the Company or any warrants,
rights or options to purchase or acquire shares of any class of such Capital
Stock, other than the exchange of such Capital Stock for Qualified Capital
Stock, (c) make any principal payment on, purchase, defease, redeem, prepay,
decrease or otherwise acquire or retire for value, prior to any scheduled final
maturity, scheduled repayment or scheduled sinking fund payment, any
Indebtedness of the Company or its Restricted Subsidiaries that is subordinate
or junior in right of payment to the Notes or (d) make any Investment (other
than Permitted Investments) (each of the foregoing actions set forth in clauses
(a), (b), (c) and (d) being referred to as a "Restricted Payment"), if at the
time of such Restricted Payment or immediately after giving effect thereto, (i)
a Default or an Event of Default shall have occurred and be continuing, (ii)
the Company is not able to incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) in compliance with Section 4.12 or (iii)
the aggregate amount of Restricted Payments made subsequent to the Issue Date
(the amount expended for such purposes, if other than in cash, shall be the
fair market value of such property as determined by the Board of Directors of
the Company in good faith) shall exceed the sum, without duplication, of: (w)
50% of the cumulative Consolidated Net Income (or if cumulative Consolidated
Net Income shall be a loss, minus 100% of such loss) of the Company earned
during the period beginning on the first day of the fiscal quarter of the
Company commencing after the Issue Date and ending on the last day of the most
recent fiscal quarter ending at least 45 days prior to the date the Restricted
Payment occurs (treating such period as a single accounting period); (x) 100%
of the aggregate net proceeds, including the fair market value of property
other than cash as determined by the Board of Directors of the Company in good
faith, received by the Company from any Person (other than a Restricted
Subsidiary of the Company) from the issuance and sale subsequent to the Issue
Date of Qualified Capital Stock of the Company or of debt securities of the
Company that have been converted into Qualified Capital Stock (excluding (A)
Qualified Capital Stock made as a distribution on any Capital Stock or as
interest on any Indebtedness and (B) any net proceeds from issuances and sales
of Qualified
59
-50-
Capital Stock financed directly or indirectly using funds borrowed from the
Company or any Restricted Subsidiary of the Company, until and to the extent
such borrowing is repaid), (y) $50 million and (z) the amount of the net
reduction in Investments made as Restricted Payments in accordance with this
sentence in Unrestricted Subsidiaries resulting from (1) the payment of cash
dividends or the repayment in cash of the principal of loans or the cash return
on any Investment, in each case to the extent received by the Company or any
wholly owned Restricted Subsidiary of the Company from Unrestricted
Subsidiaries, (2) to the extent that any Investment in an Unrestricted
Subsidiary that was made after the date of this Indenture is sold for cash or
otherwise liquidated or repaid for cash, the after-tax cash return of capital
with respect to such Investment (less the cost of disposition, if any) or (3)
the redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries, such
aggregate amount of the net reduction in such Investments not to exceed, in the
case of any Unrestricted Subsidiary, the amount of such Investments made as
Restricted Payments previously made by the Company or any Restricted Subsidiary
in such Unrestricted Subsidiary, which amount was included in the calculation
of the amount of Restricted Payments.
Notwithstanding the foregoing, these provisions do not prohibit:
(1) the payment of any dividend, making of any distribution or consummation of
irrevocable redemption within 60 days after the date of declaration of such
dividend, making of such distribution or giving of such notice if the dividend,
distribution or redemption would have been permitted on the date of
declaration; (2) the acquisition of Capital Stock or Indebtedness of the
Company that is subordinate or junior in right of payment to the Notes, either
(i) in exchange for shares of Qualified Capital Stock or (ii) through the
application of net proceeds of a substantially concurrent sale for cash (other
than to a Restricted Subsidiary of the Company) of shares of Qualified Capital
Stock; (3) the acquisition of Indebtedness of the Company that is subordinate
or junior in
60
-51-
right of payment to the Notes, either (i) in exchange for Indebtedness of the
Company that is subordinate or junior in right of payment to the Notes, at
least to the extent that the Indebtedness being acquired is subordinated to the
Notes, and has no scheduled principal prepayment dates prior to the earlier of
(a) at least one year after the scheduled final maturity date of the Notes or
(b) the scheduled final maturity date of the Indebtedness being exchanged, (ii)
through the application of net proceeds of a substantially concurrent sale for
cash (other than to a Restricted Subsidiary of the Company) of Indebtedness of
the Company that is subordinate or junior in right of payment to the Notes, at
least to the extent that the Indebtedness being acquired is subordinated to the
Notes, and has no scheduled principal prepayment dates prior to the earlier of
(a) the scheduled final maturity date of the Notes or (b) the scheduled final
maturity date of the Indebtedness being refinanced or (iii) any combination of
clauses (i) and (ii) above; (4) the elimination of fractional shares or
warrants; (5) the purchase for value of shares of Capital Stock of the Company
(x) held by directors, officers or employees upon death, disability,
retirement, termination of employment or (y) to fund capital stock-based, long-
term incentive programs, not to exceed $4 million in the aggregate; (6) the
repurchase of any Old Notes in accordance with (i) the "Limitation on Asset
Sales" and "Change of Control" covenants hereunder and (ii) Sections 4.15 and
4.16 of the indenture under which the Old Notes were issued; (7) Restricted
Payments for the redemption, repurchase or other acquisition of shares of
Capital Stock of the Company in satisfaction of indemnification or other claims
arising under any merger, consolidation, asset purchase or investment or
similar acquisition agreement permitted under the Indenture, pursuant to which
such shares of Capital Stock were issued and (8) repurchases of Capital Stock
deemed to occur upon exercise of employee or director stock options; provided
that in the case of clauses (2), (3), (4), (5), (6) and (7), no Default or
Event of Default shall have occurred or be continuing at the time of such
payment or as a result thereof. In determining the aggregate amount of
Restricted Payments made subsequent to the Issue Date, amounts expended
pursuant to clauses (1), (2), (4), (5), (6) and 7 shall be included in such
calculation; provided that amounts expended pursuant to clause (2) shall
constitute Restricted Payments only to the extent any amounts are credited
pursuant to clause (iii)(x) of the next preceding paragraph.
SECTION 4.04. Corporate Existence.
Except as otherwise permitted by Article Five, the Company shall
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate or other existence and the corporate or other
existence of each of its Subsidiaries in accordance with the respective
organizational documents of each such Subsidiary and the material rights
(charter and statutory) and franchises of the Company and each such Subsidiary;
provided, however, that the Company shall not be required to preserve, with
respect to itself, any material right or franchise and, with respect to any of
its
61
-52-
Restricted Subsidiaries, any such existence, material right or franchise, if
the Board of Directors or other equivalent governing body of the Company or
such Subsidiary, as the case may be, shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company or
any such Subsidiary.
SECTION 4.05. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all taxes, assessments
and governmental charges (including withholding taxes and any penalties,
interest and additions to taxes) levied or imposed upon it or any of its
Subsidiaries or properties of it or any of its Subsidiaries and (ii) all lawful
claims for labor, materials and supplies that, if unpaid, might by law become a
Lien upon the property of it or any of its Subsidiaries; 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 if either (a) the
amount, applicability or validity thereof is being contested in good faith by
appropriate proceedings and an adequate reserve has been established therefor
to the extent required by generally accepted accounting principles then in
effect or (b) the failure to make such payment or effect such discharge
(together with all other such failures) would not have a material adverse
effect on the financial condition or results of operations of the Company and
its Subsidiaries, taken as a whole.
SECTION 4.06. Maintenance of Properties and Insurance.
(a) 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 necessary repairs, renewals, replacements,
additions, betterments and improvements thereto and actively conduct and carry
on its business; provided, however, that nothing in this Section shall prevent
the Company or any of its Subsidiaries from discontinuing the operation and
maintenance of any of its properties, if such discontinuance is, in the
judgment of the Company or the Subsidiary, as the case may be, desirable in the
62
-53-
conduct of their respective businesses and is not disadvantageous in any
material respect to the Holders.
(b) The Company shall provide or cause to be provided, for
itself and each of its Subsidiaries, insurance (including appropriate self-
insurance) against loss or damage of the kinds that, in the reasonable, good
faith opinion of the Company are adequate and appropriate for the conduct of
the business of the Company and such 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 reasonable, good faith opinion of
the Company, for companies similarly situated in the industry, unless the
failure to provide such insurance (together with all other such failures) would
not have a material adverse effect on the financial condition or results of
operations of the Company and its Subsidiaries, taken as a whole.
SECTION 4.07. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of the Company's fiscal year, an Officers' Certificate stating
that a review of its activities and the activities of its Subsidiaries during
the preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether it has kept, observed, performed
and fulfilled its obligations under this Indenture and further stating, as to
each such Officer signing such certificate, that to the best of his knowledge
the Company during such preceding fiscal year has kept, observed, performed and
fulfilled each and every such covenant and no Default or Event of Default
occurred during such year and at the date of such certificate there is no
Default or Event of Default that has occurred and is continuing or, if such
signers do know of such Default or Event of Default, the certificate shall
describe the Default or Event of Default and its status with particularity.
The Officers' Certificate shall also notify the Trustee should the Company
elect to change the manner in which it fixes its fiscal year end.
63
-54-
(b) So long as not contrary to the then current recommendations
of the American Institute of Certified Public Accountants, the annual financial
statements delivered pursuant to Section 4.09 shall be accompanied by a written
report of the Company's independent public accountants (who shall be a firm of
established national reputation) that in conducting their audit of such
financial statements (which is directed primarily to the expression of their
opinion on such financial statements taken as a whole and not toward obtaining
knowledge of non-compliance with credit agreements) nothing has come to their
attention that would lead them to believe that the Company has violated any
provisions of Article Four, Five or Six of this Indenture 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) (i) If any Default or Event of Default has occurred and is
continuing, (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed default under this Indenture or the Notes or (iii) if the
trustee for or the holder of any other evidence of Indebtedness of the Company
or any Restricted Subsidiary seeks to exercise any remedy with respect to a
claimed default (other than with respect to Indebtedness in the principal
amount of less than $20,000,000), the Company shall deliver to the Trustee by
registered or certified mail or by telegram, telex or facsimile transmission
followed by hard copy by registered or certified mail an Officers' Certificate
specifying such event, notice or other action within five Business Days of its
occurrence.
SECTION 4.08. Compliance with Laws.
The Company shall comply, and shall cause each of its
Subsidiaries to comply, with all applicable statutes, rules, regulations,
orders and restrictions of the United States of America, all states and
municipalities thereof, and of any governmental department, commission, board,
regulatory authority, bureau, agency and instrumentality of the foregoing, in
respect of the conduct of their respective businesses and the ownership
64
-55-
of their respective properties, except such as are being contested in good
faith and by appropriate proceedings and except for such noncompliances as are
not in the aggregate reasonably likely to have a material adverse effect on the
financial condition or results of operations of the Company and its
Subsidiaries, taken as a whole.
SECTION 4.09. SEC Reports.
To the extent permitted by applicable law or regulation, whether
or not the Company is subject to the requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall file with the SEC all quarterly and annual
reports and such other information, documents or other reports (or copies of
such portions of any of the foregoing as the SEC may by rules and regulations
prescribe) required to be filed pursuant to such provisions of the Exchange
Act.
The Company shall file with the Trustee, and prior to the
consummation of the Exchange Offer, the Company shall mail to the Holders and
Trustee in accordance with this Section 4.09, within 15 days after it files the
same with the SEC, copies of the quarterly and annual reports and the
information, documents, and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) that it is
required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act. The Company shall also comply with the other provisions of TIA Section
314(a).
Regardless of whether the Company is required to furnish such
reports to its stockholders pursuant to the Exchange Act, the Company shall
cause its consolidated financial statements, comparable to that which would
have been required to appear in annual or quarterly reports, to be delivered to
the holders of the Notes.
SECTION 4.10. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage
65
-56-
of, any stay or extension law or any usury law or other law that would prohibit
or forgive the Company from paying all or any portion of the principal of or
interest on the Notes as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the performance
of this Indenture; and (to the extent that it may lawfully do so) the Company
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 4.11. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with or for the
benefit of, an Affiliate of the Company or any Restricted Subsidiary (other
than transactions between the Company and a wholly owned Restricted Subsidiary
of the Company) (an "Affiliate Transaction"), other than Affiliate Transactions
on terms that are no less favorable in the aggregate than those that might
reasonably have been obtained or are obtainable in a comparable transaction on
an arm's-length basis from a Person that is not an Affiliate; provided that
neither the Company nor any of its Restricted Subsidiaries shall enter into an
Affiliate Transaction or series of related Affiliate Transactions involving or
having a value of $10 million or more unless a majority of the disinterested
members of the Board of Directors of the Company determines in good faith as
evidenced by a Board Resolution that the terms are no less favorable in the
aggregate to the Company than those that might reasonably have been obtained in
a comparable transaction on an arm's-length basis from a Person that is not an
Affiliate; provided, however, that (i) any employment agreement or stock option
agreement entered into by the Company or any of its Restricted Subsidiaries in
the ordinary course of business, (ii) transactions permitted under Section
4.03, (iii) the payment of reasonable fees and expenses to directors
66
-57-
of the Company or its Restricted Subsidiaries, (iv) any issuance of securities
or other payments, awards or grants in cash, securities or otherwise pursuant
to, or the funding of employment arrangements, stock options and stock
ownership plans of the Company entered into in the ordinary course of business
and (v) transactions pursuant to agreements existing on the Issue Date or any
amendment thereto or any transactions contemplated thereby (including pursuant
to any amendment thereto) in any replacement agreement thereto, so long as any
such amendment or replacement is not more disadvantageous to the holders in any
material respect than the original agreement as in effect on the Issue Date, in
each case, shall not be deemed Affiliate Transactions.
SECTION 4.12. Limitation on Incurrence of Additional Indebtedness.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, after the Issue Date, directly or indirectly, create, incur,
assume, guarantee, acquire or become liable, contingently or otherwise, or
otherwise become responsible for the payment of any Indebtedness other than
Permitted Indebtedness. Notwithstanding the foregoing limitations, the Company
and, subject to compliance with Section 4.18, Restricted Subsidiaries may incur
Indebtedness if (i) no Default or Event of Default shall have occurred and be
continuing at the time of or as a consequence of the incurrence of such
Indebtedness and (ii) the Consolidated Fixed Charge Coverage Ratio of the
Company, measured on the date of the incurrence of such Indebtedness, is
greater than 2.0:1.0. No Indebtedness incurred pursuant to the next preceding
sentence shall be included in calculating any limitation set forth in the
definition of Permitted Indebtedness. Upon the repayment of Indebtedness which
may have been incurred pursuant to more than one provision of this Indenture,
the Company may, in its sole discretion, designate which provision such
Indebtedness shall have been incurred under.
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 permit to
exist or become effective any
67
-58-
encumbrance or restriction on the ability of any Restricted Subsidiary to (a)
pay dividends or make any other distributions on its Capital Stock, (b) make
loans or advances or pay any Indebtedness or other obligation owed to the
Company or a Restricted Subsidiary of the Company or (c) transfer any of its
properties or assets to the Company, except for such encumbrances or
restrictions existing under or by reason of (i) applicable law, (ii) this
Indenture, the Senior Note Indenture or the 9 3/4% Note Indenture, (iii)
customary nonassignment provisions of any lease governing a leasehold interest
of the Company or any Restricted Subsidiary of the Company, (iv) any instrument
governing Acquired Indebtedness, which encumbrance or restriction is not
applicable to the Company or any Restricted Subsidiary of the Company, or the
properties or assets of the Company or any Restricted Subsidiary of the
Company, other than the Person, the properties or assets so acquired, (v)
agreements existing on the Issue Date, (vi) the Trade Receivable Facility,
(vii) customary nonassignment provisions in contracts entered into in the
ordinary course of business, (viii) Indebtedness of a Restricted Subsidiary
permitted to be incurred under the Indenture; or (ix) an agreement effecting a
refinancing, modification, replacement, renewal, restatement, refunding,
deferral, extension, substitution, supplement, reissuance or resale of
Indebtedness issued, assumed or incurred pursuant to an agreement referred to
in clause (ii), (iv), (v), (vi) or (viii) above; provided, however, that the
provisions relating to such encumbrance or restriction contained in any such
refinancing, replacement or substitution agreement are not less favorable to
the Company or Restricted Subsidiary, as the case may be, in any material
respect in the reasonable judgment of the Board of Directors of the Company
than the provisions relating to such encumbrance or restriction contained in
agreements referred to in such clause (ii), (iv), (v), (vi) or (viii).
SECTION 4.14. Prohibition on Incurrence of Senior Subordinated Debt.
The Company shall not incur or suffer to exist Indebtedness that
constitutes Senior Debt with respect to the
68
-59-
Notes but is subordinated by written agreement in right of payment to any other
Senior Debt of the Company.
SECTION 4.15. Change of Control.
(a) In the event of a Change of Control, each Holder will have
the right to require the Company to repurchase all or a portion of such
Holder's Notes pursuant to an offer described in paragraph (b) below (the
"Change of Control Offer") at a purchase price equal to 101% of the principal
amount thereof plus accrued and unpaid interest, if any, to the date of
repurchase. Prior to the repurchase of the Notes, the Company shall (i) repay
in full all Senior Debt the terms of which require repayment upon a Change of
Control or offer to repay in full all such Indebtedness and to repay the
Indebtedness owed to each holder of such Indebtedness which has accepted such
offer, or (ii) obtain the requisite consents under such Senior Debt to permit
the repurchase of the Notes as provided below. The Company shall first comply
with the covenant in the preceding sentence before it shall be required to
repurchase Securities pursuant to the provisions described in this Section
4.15.
(b) Within 30 days following the date upon which the Change of
Control occurred (the "Change of Control Date") requiring the Company to make a
Change of Control Offer pursuant to this Section 4.15, the Company shall send,
by first class mail, a notice to each Holder, with a copy to the Trustee, which
notice shall govern the terms of the Change of Control Offer. The notice to
the Holders shall contain all instructions and materials necessary to enable
such Holders to tender Notes pursuant to the Change of Control Offer. Such
notice shall state:
(1) that the Change of Control Offer is being made pursuant to
this Section 4.15 and that all Notes tendered will be accepted for
payment;
(2) the purchase price (including the amount of accrued
interest) and the purchase date (which shall be no earlier than 30 days
nor later than 45 days from the date such notice is mailed, other than
as may be required by
69
-60-
law) (the "Change of Control Payment Date"); provided that the Change of
Control Payment Date for the Notes shall be a date subsequent to the
Change of Control Payment Date (as set forth in the Senior Note
Indenture) established by the Company for repurchase of the Senior
Notes;
(3) that any Note not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in making payment
therefor, any Note accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of Control
Payment Date;
(5) that Holders electing to have a Note purchased pursuant to
a Change of Control Offer will be required to surrender the Note, with
the form entitled "Option of Holder to Elect Purchase" on the reverse of
the Note completed, to the Paying Agent at the address specified in the
notice prior to the close of business on the Business Day prior to the
Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than five Business Days prior to
the Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Notes the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such Note
purchased;
(7) that Holders whose Notes are purchased only in part will
be issued new Notes in a principal amount equal to the unpurchased
portion of the Notes surrendered; and
(8) the circumstances and relevant facts regarding such Change
of Control.
On or before the Change of Control Payment Date, the Company
shall (i) accept for payment Notes or portions thereof tendered pursuant to the
Change of Control Offer, (ii) deposit
70
-61-
with the Paying Agent U.S. Legal Tender sufficient to pay the purchase price of
all Notes so tendered and (iii) deliver to the Trustee Notes so accepted
together with an Officers' Certificate stating the Notes or portions thereof
being purchased by the Company. The Paying Agent shall promptly mail to the
Holders of Notes so accepted payment in an amount equal to the purchase price,
and the Trustee shall promptly authenticate and mail to such Holders new Notes
equal in principal amount to any unpurchased portion of the Notes surrendered.
Any Notes not so accepted shall be promptly mailed by the Company to the Holder
thereof. For purposes of this Section 4.15, the Trustee shall act as the
Paying Agent.
Any amounts remaining after the purchase of Notes pursuant to a
Change of Control Offer shall be returned by the Trustee to the Company.
The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent the
provisions of any securities laws or regulations conflict with this Section
4.15, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.15 by virtue thereof.
SECTION 4.16. Limitation on Asset Sales.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless (a) the Company or
the applicable Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the fair market
value of the assets sold or otherwise disposed of (as determined in good faith
by the Board of Directors of the Company), (b) at least 75% of the
consideration received by the Company or the Restricted Subsidiary, as the case
may be, from such Asset Sale shall be cash or Cash Equivalents and is received
at the time of such disposition; provided, however, that this condition shall
not apply
71
-62-
to a transaction whereby the Company or any Restricted Subsidiary effects an
Asset Sale by the exchange of assets or property for Productive Assets or to
the sale or other disposition of all or any portion of the Company's East Mill
assets located in Antioch, California, provided, further, that the amount of
(A) any liabilities of the Company or any Restricted Subsidiary (other than
liabilities that are by their terms subordinated in right of payment to the
Notes) that are assumed by the transferee of any such assets shall be deemed to
be cash for purposes of this provision and (B) any notes or other obligations
received by the Company or such Restricted Subsidiary from such transferee that
are immediately converted by the Company or such Restricted Subsidiary into
cash (to the extent of the cash received) shall be deemed to be cash for
purposes of this provision, and (c) the Company shall (i) apply, or cause such
Restricted Subsidiary to apply, such Net Cash Proceeds of such Asset Sale
within 270 days of the consummation of such Asset Sale (A) to prepay Senior
Debt or (B) to the extent the holders of Senior Debt tender an amount of such
indebtedness less than the available Net Cash Proceeds offered to such holders,
to make an offer to purchase the Notes, at a price equal to 100% of the
principal amount of the Notes plus accrued interest thereon to the date of
purchase pursuant to an offer to purchase made by the Company as set forth
below (a "Net Proceeds Offer"), or (ii)(A) commit, or cause such Restricted
Subsidiary to commit (such commitments to include amounts anticipated to be
expended pursuant to the Company's capital investment plan (x) as adopted by
the Board of Directors of the Company and (y) evidenced by the filing of an
Officers' Certificate with the Trustee stating that the total amount of the Net
Cash Proceeds of such Asset Sale is less than the aggregate amount contemplated
to be expended pursuant to such capital investment plan within 24 months of the
consummation of such Asset Sale) within 270 days of the consummation of such
Asset Sale, to apply the Net Cash Proceeds of such Asset Sale to reinvest in
Productive Assets and (B) apply, or cause such Restricted Subsidiary to apply,
pursuant to such commitment (which includes amounts actually expended under the
capital investment plan authorized by the Board of Directors of the Company),
such Net Cash Proceeds of such Asset Sale within 24 months of the
72
-63-
consummation of such Asset Sale; provided that if any commitment under this
clause (ii) is terminated or rescinded after the 225th day after the
consummation of such Asset Sale, the Company or such Restricted Subsidiary, as
the case may be, shall have 45 days after such termination or rescission to (1)
apply such Net Cash Proceeds pursuant to clause (c)(i) above (a "Reapplication
Determination") or (2) to commit, or cause such Restricted Subsidiary to
commit, to apply the Net Cash Proceeds of such Asset Sale to reinvest in
Productive Assets; provided that in any such case, such proceeds must be
applied pursuant to clause (c)(i) above or such commitment, as the case may be,
no later than 24 months after the consummation of such Asset Sale or (iii) any
combination of the foregoing; provided, further, that if at any time any
non-cash consideration received by the Company or any Restricted Subsidiary of
the Company, as the case may be, in connection with any Asset Sale is converted
into or sold or otherwise disposed of for cash, then such conversion or
disposition shall be deemed to constitute an Asset Sale hereunder and the Net
Cash Proceeds thereof shall be applied in accordance with clause (c) above; and
provided, further, that the Company may defer making a Net Proceeds Offer until
the aggregate Net Cash Proceeds from Asset Sales to be applied equals or
exceeds $10 million. Pending the final application of any such Net Cash
Proceeds the Company or such Restricted Subsidiary may temporarily reduce
Indebtedness under a revolving credit facility, if any.
(b) Notice of a Net Proceeds Offer pursuant to this Section 4.16
shall be mailed or cause to be mailed, by first class mail, by the Company
within 270 days, or so long as the Senior Notes and the 9 3/4% Notes are
outstanding, 330 days, after the relevant Asset Sale to all Holders at their
last registered addresses as of a date within 15 days of the mailing of such
notice, with a copy to the Trustee. The notice shall contain all instructions
and materials necessary to enable such Holders to tender Notes pursuant to the
Net Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to
Section 4.16 and that all Notes tendered will be
73
-64-
accepted for payment; provided, however, that if the aggregate principal
amount of Notes tendered in a Net Proceeds Offer plus accrued interest
at the expiration of such offer exceeds the aggregate amount of the Net
Proceeds Offer, the Company shall select the Notes to be purchased on a
pro rata basis (with such adjustments as may be deemed appropriate by
the Company so that only Notes in denominations of $1,000 or multiples
thereof shall be purchased);
(2) the purchase price (including the amount of accrued
interest) and the purchase date (which shall be no earlier than 30 days
nor later than 45 days from the date such notice is mailed, other than
as may be required by law) (the "Proceeds Purchase Date");
(3) that any Note not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in making payment
therefor, any Note accepted for payment pursuant to the Net Proceeds
Offer shall cease to accrue or accrete interest after the Proceeds
Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to
a Net Proceeds Offer will be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, to the Paying Agent at the address specified in the
notice prior to the close of business on the Business Day prior to the
Proceeds Purchase Date;
(6) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than two Business Days prior to
the Proceeds Purchase Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Notes the Holder delivered for purchase and a statement that such Holder
is withdrawing his election to have such Note purchased; and
74
-65-
(7) that Holders whose Notes are purchased only in part will
be issued new Notes in a principal amount equal to the unpurchased
portion of the Notes surrendered.
On or before the Proceeds Purchase Date, the Company shall (i)
accept for payment Notes or portions thereof tendered pursuant to the Net
Proceeds Offer that are to be purchased in accordance with item (b)(1) above,
(ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the
purchase price of all Notes to be purchased and (iii) deliver to the Trustee
Notes so accepted together with an Officers' Certificate stating the Notes or
portions thereof being purchased by the Company. The Paying Agent shall
promptly mail to the Holders of Notes so accepted payment in an amount equal to
the purchase price. For purposes of this Section 4.16, the Trustee shall act
as the Paying Agent.
Any amounts remaining after the purchase of Notes pursuant to a
Net Proceeds Offer shall be returned by the Trustee to the Company.
The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the
provisions of any securities laws or regulations conflict with this Section
4.16, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.16 by virtue thereof.
SECTION 4.17. Guarantees by Restricted Subsidiaries.
The Company will cause any Borrowing Restricted Subsidiary to
become a Subsidiary Guarantor by executing the guarantee (the "Guarantee") of
payment of the Notes by such Borrowing Restricted Subsidiary (1) if, at the
time the Restricted Subsidiary first becomes a Borrowing Restricted Subsidiary,
the total Investment of the Company and the Restricted Subsidiaries in such
Borrowing Restricted Subsidiary and in all other
75
-66-
Borrowing Restricted Subsidiaries that are not Subsidiary Guarantors, is more
than 15% of Total Tangible Assets (the "15% Investment Threshold"), or (2) if,
at the time a Borrowing Restricted Subsidiary increases the amount of
Restricted Subsidiary Indebtedness (excluding for this purpose, incurrences of
indebtedness under a revolving credit facility that do not exceed the maximum
committed borrowings thereunder), the 15% Investment Threshold is met or (3)
if, at the time the Company or any Restricted Subsidiary makes a capital
contribution or other equity investment in excess of $1 million during any six-
month period in any Borrowing Restricted Subsidiary, the 15% Investment
Threshold is met. The Guarantee will be subordinate to each guarantee issued
under the 9 3/4% Note Indenture and the Senior Note Indenture to the same
extent that the Notes are subordinate to the 9 3/4% Notes and the Senior Notes.
A Borrowing Restricted Subsidiary shall be released as a Subsidiary Guarantor
(i) at such time as it ceases to be a Borrowing Restricted Subsidiary or (ii)
upon the election of the Company, if, after giving effect to such election, the
15% Investment Threshold is not met.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc.
(a) The Company shall not, in a single transaction or through a
series of related transactions, consolidate with or merge with or into, or
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its assets to, another Person or adopt a Plan of
Liquidation, unless:
(1) either the Company shall be the survivor of such merger or
consolidation or the surviving Person is a corporation, partnership or
trust organized and existing under the laws of the United States, any
State thereof or the District of Columbia, and such surviving Person
shall expressly assume, by an indenture supplemental hereto,
76
-67-
executed and delivered to the Trustee on or prior to the consummation of
such transaction, in a form satisfactory to the Trustee, all the
obligations of the Company under the Notes and this Indenture;
(2) immediately after giving effect to such transaction (on a
pro forma basis, including any Indebtedness to be incurred in connection
with such transaction), the Company or the surviving Person shall be
able to incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) in compliance with Section 4.12;
(3) immediately after giving effect to such transaction and
the assumption of the obligations as set forth in clause (1) above and
the incurrence of any Indebtedness to be incurred in connection
therewith, no Default or Event of Default shall have occurred and be
continuing; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, transfer or adoption and such supplemental
indenture comply with this Article Five, that the surviving Person (if
other than the Company) agrees to be bound hereby, and that all
conditions precedent herein provided relating to such transaction have
been satisfied.
Notwithstanding clauses (2), (3) and (4) of this Section 5.01,
any Restricted Subsidiary of the Company may consolidate with, merge into or
transfer all or part of its properties and assets to the Company.
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties and assets of one
or more Restricted Subsidiaries of the Company, the Capital Stock of which
constitutes all or substantially all of the properties and assets of the
Company, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.
77
-68-
SECTION 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer of assets in
accordance with Section 5.01, the successor Person formed by such consolidation
or into which the Company is merged or to which such transfer is made shall
succeed to, and be substituted for, 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. When a successor corporation
assumes all of the obligations of the Company hereunder and under the Notes and
agrees to be bound hereby and thereby, the predecessor shall be released from
such obligations.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest on any
Notes when the same becomes due and payable and the Default continues
for a period of 30 days (whether or not such payment shall be prohibited
by Article Ten);
(2) the Company defaults in the payment of the stated
principal amount of any Notes when the same becomes due and payable at
maturity, upon acceleration or redemption or pursuant to an offer to
purchase required hereunder (whether or not such payment shall be
prohibited by Article Ten);
(3) the Company fails to observe or perform any other covenant
or agreement contained in the Notes or this Indenture and the Default
continues for the period and after the notice specified below;
78
-69-
(4) there shall be a failure to pay at stated maturity the
principal amount of any Indebtedness of the Company or any Restricted
Subsidiary of the Company, or the acceleration of the stated maturity of
any such Indebtedness, if the aggregate principal amount of such
Indebtedness, together with the principal amount of any other such
Indebtedness in default for failure to pay principal at stated maturity
or which has been accelerated, aggregates $20,000,000 or more at any
time;
(5) one or more judgments in an aggregate amount in excess of
$20,000,000 shall have been rendered against the Company or any of its
Restricted Subsidiaries and such judgments remain undischarged or
unstayed for a period of 60 days after such judgment or judgments become
final and non-appealable and after the notice specified below;
(6) the Company or any Significant Restricted Subsidiary (A)
admits in writing its inability to pay its debts generally as they
become due, (B) commences a voluntary case or proceeding under any
Bankruptcy Law with respect to itself, (C) consents to the entry of a
judgment, decree or order for relief against it in an involuntary case
or proceeding under any Bankruptcy Law, (D) consents to the appointment
of a Custodian of it or for substantially all of its property, (E)
consents to or acquiesces in the institution of a bankruptcy or an
insolvency proceeding against it, (F) makes a general assignment for the
benefit of its creditors or (G) takes any corporate action to authorize
or effect any of the foregoing; and
(7) a court of competent jurisdiction enters a judgment,
decree or order for relief in respect of the Company or any Significant
Restricted Subsidiary in an involuntary case or proceeding under any
Bankruptcy Law, which shall (A) approve as properly filed a petition
seeking reorganization, arrangement, adjustment or composition in
respect of the Company or any Significant Restricted Subsidiary, (B)
appoint a Custodian of the Company or any Significant Restricted
Subsidiary or for substantially all of its property or (C) order the
winding-up or liquidation of its
79
-70-
affairs; and such judgment, decree or order shall remain unstayed and in
effect for a period of 60 consecutive days.
A Default under clause (3) above (other than in the case of any
Default under Section 4.15, 4.16 or 5.01, which Defaults shall be Events of
Default with the notice specified in this paragraph but without the passage of
time specified in this paragraph) is not an Event of Default until the Trustee
notifies the Company, or the Holders of at least 25% in principal amount of the
outstanding Notes notify the Company and the Trustee of the Default, and the
Company does not cure the Default within 30 days after receipt of the notice.
The notice must specify the Default, demand that it be remedied and state that
the notice is a "Notice of Default." Such notice shall be given by the Trustee
if so requested by the Holders of at least 25% in principal amount of the Notes
then outstanding. A Default under clause (5) above shall be an Event of
Default with the notice specified in this paragraph but without the passage of
time referred to in this paragraph.
SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified
in Section 6.01(6) or (7) with respect to the Company) occurs and is continuing
and has not been waived pursuant to Section 6.04, the Trustee may, by notice to
the Company, or the Holders of at least 25% in principal amount of the Notes
then outstanding may, by written notice to the Company and the Trustee, and the
Trustee shall, upon the request of such Holders, declare the aggregate
principal amount of the Notes outstanding, together with accrued but unpaid
interest thereon to the date of payment, to be due and payable and, upon any
such declaration, the same shall become and be due and payable; provided,
however, that the Trustee shall be under no obligation to follow any request of
any of the Holders unless such Holders shall have offered to the Trustee, after
request by the Trustee, reasonable security or indemnity against the costs,
expenses and liabilities that may be incurred by it in compliance with such
request, order or direction. If an Event of Default specified in Section
6.01(6) or (7) occurs with
80
-71-
respect to the Company, all unpaid principal and accrued interest on the Notes
then outstanding shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Noteholder. Upon payment of such principal amount and interest all of the
Company's obligations under the Notes and this Indenture, other than
obligations under Section 7.07, shall terminate. The Holders of a majority in
principal amount of the Notes then outstanding by notice to the Trustee may
rescind an acceleration and its consequences if (i) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction, (ii)
all existing Events of Default, other than the non-payment of the principal and
interest on the Notes that have become due solely by such declaration of
acceleration, have been cured or waived, (iii) to the extent the payment of
such interest is lawful, interest on overdue installments of interest and
overdue principal, which has become due otherwise than by such declaration of
acceleration, has been paid, (iv) the Company has paid the Trustee its
reasonable compensation and reimbursed the Trustee for its expenses,
disbursements and advances and (v) in the event of the cure or waiver of a
Default or Event of Default of the type described in Section 6.01(6) or (7),
the Trustee shall have received an Officer's Certificate and an Opinion of
Counsel that such Default has been cured or waived. No such rescission shall
affect any subsequent default or impair any right consequent thereto.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Notes or to enforce the performance
of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default.
81
-72-
No remedy is exclusive of any other remedy. All available remedies are
cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority in
principal amount of the outstanding Notes by notice to the Trustee may waive an
existing Default or Event of Default and its consequences, except a Default in
the payment of principal of or interest on any Note as specified in clauses (1)
and (2) of Section 6.01.
SECTION 6.05. Control by Majority.
The Holders of a majority in principal amount of the outstanding
Notes may direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power conferred
on it including, without limitation, any remedies provided for in Section 6.03.
Subject to Section 7.01, however, the Trustee may refuse to follow any
direction that conflicts with any law or this Indenture or that the Trustee
determines may be unduly prejudicial to the rights of another Noteholder, or
that may involve the Trustee in personal liability; provided that the Trustee
may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 6.06. Limitation on Suits.
A Noteholder may not pursue any remedy with respect to this
Indenture or the Notes unless:
(1) the Holder gives to the Trustee notice of a continuing
Event of Default;
(2) Holders of at least 25% in principal amount of the
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(3) such Holders offer to the Trustee reasonable indemnity
against any loss, liability or expense to be incurred in compliance with
such request;
82
-73-
(4) the Trustee does not comply with the request within 45
days after receipt of the request and the offer of satisfactory
indemnity; and
(5) during such 45-day period the Holders of a majority in
principal amount of the outstanding Notes do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with the
request.
A Noteholder may not use this Indenture to prejudice the rights
of another Noteholder or to obtain a preference or priority over such other
Noteholder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right
of any Holder to receive payment of principal of and interest on a Note, on or
after the respective due dates expressed in such Note, 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 in payment of principal or interest
specified in clause (1) or (2) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Notes for the whole amount of
principal and accrued interest remaining unpaid, together with interest on
overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate per
annum borne by the 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.
83
-74-
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relating to the Company or any
other obligor upon the Notes, any of their respective creditors or any of their
respective property and shall be entitled and empowered to collect and receive
any monies or other property payable or deliverable on any such claims and to
distribute the same, and any Custodian in any such judicial proceedings is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, taxes, disbursements and advances of the
Trustee, its agent and counsel, and any other amounts due the Trustee under
Section 7.07. Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Notes or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article Six,
it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: if the Holders are forced to proceed against the Company
directly without the Trustee, to Holders for their collection costs;
Third: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference
84
-75-
or priority of any kind, according to the amounts due and payable on the
Notes for principal and interest, respectively; and
Fourth: to the Company or any other obligor on the Notes, as
their interests may appear, or as a court of competent jurisdiction may
direct.
The Trustee, upon prior notice to the Company, may fix a record
date and payment date for any payment to Holders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by a Holder or Holders of more than 10% in
principal amount of the outstanding Notes.
ARTICLE SEVEN
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein expressed.
SECTION 7.01. Duties of Trustee.
(a) If a Default or an Event of Default of which the Trustee has
notice or knowledge hereunder has occurred and is
85
-76-
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 its exercise
thereof as a prudent Person would exercise or use under the circumstances in
the conduct of his own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no covenants or obligations
shall be implied in this Indenture that are adverse to the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Sections 6.02 or 6.05.
86
-77-
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree with the Company in
writing. Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely and shall be fully protected in acting
or refraining from acting upon any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers' Certificate or an
Opinion of Counsel, which shall conform to Sections 11.04 and 11.05.
The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any
attorney or agent appointed with due care.
87
-78-
(d) The Trustee shall not be liable for any action that it takes
or omits to take in good faith which it believes to be authorized or
within its rights or powers.
(e) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, notice, request, direction, consent,
order, bond, debenture, or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled,
upon reasonable notice to the Company, to examine the books, records,
and premises of the Company, personally or by agent or attorney.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to the provisions of
this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred by it in compliance with such request,
order or direction.
(g) The Trustee is not required to take notice or deemed to have
notice of any Default or Event of Default hereunder, except a Default or
Event of Default under Sections 6.01(a) and 6.01(b), unless a Trust
Officer has actual knowledge of or has received notice in writing of
such Default or Event of Default from the Company, any Subsidiary, or
from the Holders of at least 25% in aggregate principal amount of the
Outstanding Notes, and in the absence of any such notice, the Trustee
may conclusively assume that no Default or Event of Default exists.
(h) The Trustee is not required to give any bond or surety with
respect to the performance of its duties or the exercise of its powers
under this Indenture.
88
-79-
(i) Except for the information provided by the Trustee
concerning the Trustee, the Trustee shall have no responsibility for
compliance with any state or federal securities laws in connection with
the Notes.
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 any
Subsidiary of the Company, or their respective Affiliates with the same rights
it would have if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee 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, and it shall not be responsible
for any statement in the Notes other than the Trustee's certificate of
authentication.
SECTION 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to each Noteholder notice
of the uncured Default or Event of Default within 90 days after such Default or
Event of Default occurs. Except in the case of a Default or an Event of
Default in payment of principal of, or interest on, any Note, including an
accelerated payment and the failure to make payment on the Change of Control
Payment Date pursuant to a Change of Control Offer or on the Proceeds Purchase
Date pursuant to a Net Proceeds Offer, the Trustee may withhold the notice if
and so long as its board of directors, the executive committee of its board of
directors or a committee of its directors and/or Trust Officers in good faith
determines that withholding the notice is in the interest of the Noteholders.
89
-80-
SECTION 7.06. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, the Trustee shall, to the extent that any
of the events described in TIA Section 313(a) occurred within the previous
twelve months, but not otherwise, mail to each Noteholder a brief report dated
as of such May 15 that complies with TIA Section 313(a). The Trustee also
shall comply with TIA Sections 313(b) and 313(c).
A copy of each report at the time of its mailing to Noteholders
shall be mailed to the Company and filed with the SEC and each stock exchange,
if any, on which the Notes are listed.
The Company shall notify the Trustee if the Notes become listed
on any stock exchange.
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all tax obligations imposed on the
Trustee related to this Indenture and all reasonable out-of-pocket expenses
incurred or made by it. Such expenses shall include the reasonable fees and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee and its agents,
employees, stockholders and directors for, and hold them harmless against, any
loss, liability or expense incurred by them except for such actions to the
extent caused by any negligence or bad faith on their part, arising out of or
in connection with the administration of this trust including the reasonable
costs and expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their rights, powers or
duties hereunder. The Trustee shall notify the Company promptly of any claim
asserted against the Trustee for which it may seek indemnity.
90
-81-
The Company shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel; provided that the Company will
not be required to pay such fees and expenses if it assumes the Trustee's
defense and there is no conflict of interest between the Company and the
Trustee in connection with such defense as reasonably determined by the
Trustee. The Company need not pay for any settlement made without its written
consent. The Company need not reimburse any expense or indemnify against any
loss or liability to the extent incurred by the Trustee through its negligence,
bad faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.07,
the Trustee shall have a lien prior to the Notes on all assets or money held or
collected by the Trustee, in its capacity as Trustee, except assets or money
held in trust to pay principal of or interest on particular Notes.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(6) or (7) occurs, such expenses and
the compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company. The Holders
of a majority in principal amount of the outstanding Notes may remove the
Trustee by so notifying the Company and the Trustee and may appoint a successor
trustee. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
91
-82-
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall notify each Holder of
such event and shall promptly appoint a successor Trustee. Within one year
after the successor Trustee takes office, the Holders of a majority in
principal amount of the Notes may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after
that, the retiring Trustee shall transfer all property held by it as Trustee to
the successor Trustee, subject to the lien provided in Section 7.07, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. A successor Trustee shall mail notice of its succession
to each Noteholder.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company
or the Holders of at least 10% in principal amount of the outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if
92
-83-
such resulting, surviving or transferee corporation is otherwise eligible
hereunder, be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA Sections 310(a)(1) and 310(a)(5). The Trustee (or in the
case of a corporation included in a bank holding company system, the related
bank holding company) shall have a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual report of
condition. In addition, if the Trustee is a corporation included in a bank
holding company system, the Trustee, independently of such bank holding
company, shall meet the capital requirements of TIA Section 310(a)(2). The
Trustee shall comply with TIA Section 310(b); provided, however, that there
shall be excluded from the operation of TIA Section 310(b)(1) any indenture or
indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding, if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of Company's Obligations.
This Indenture shall cease to be of further effect (except that
the Company's obligations under Sections 7.07, 8.04 and 8.05 shall survive the
effect of this Article Eight)
93
-84-
when all outstanding Notes theretofore authenticated and issued have been
delivered to the Trustee for cancellation.
In addition, at the Company's option, either (a) the Company
shall be deemed to have been Discharged (as defined below) from its obligations
with respect to the Notes at any time after the applicable conditions set forth
below have been satisfied or (b) the Company shall cease to be under any
obligation to comply with any term, provision or condition set forth in
Sections 4.03, 4.05, 4.09, 4.11 through 4.17 and 5.01 at any time after the
applicable conditions set forth below have been satisfied:
(1) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Notes (i) money in an amount or (ii) U.S. Legal Tender or
U.S. Government Obligations (as defined below) that through the payment
of interest and principal in respect thereof in accordance with their
terms will provide, not later than one business day before the due date
of any payment, money in an amount, or (iii) a combination of (i) and
(ii), sufficient, in the opinion (with respect to (i) and (ii)) of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge each installment of principal of and interest on the
outstanding Notes on the dates such installments of interest or
principal are due; provided that no deposits made pursuant to this
Section 8.01(1) shall cause the Trustee to have a conflicting interest
as defined in and for purposes of the TIA; provided, further, that no
such deposit shall result in the Company, the Trustee or the trust
becoming or being deemed to be an "investment company" under the
Investment Company Act of 1940;
(2) No Event of Default or Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit;
94
-85-
(3) The Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that (i) the Holders of the Notes will not
recognize income, gain or loss for federal income tax purposes as a
result of the Company's exercise of its option under this Section 8.01
other than in the same manner and at the same times as would have been
the case if such option had not been exercised, and, accompanied by a
ruling to that effect received from or published by the Internal Revenue
Service, and (ii) all conditions precedent to the Discharge pursuant to
this Section 8.01 have been complied with, together with an Officers'
Certificate to such effect;
(4) The Company shall have paid or duly provided for payment
of all amounts then due to the Trustee pursuant to Section 7.07 hereof;
and
(5) No such deposit will result in a Default under this
Indenture or a breach or violation of, or constitute a default under,
any other instrument or agreement (including, without limitation, the
Credit Agreement) to which the Company or any of its subsidiaries is a
party or by which it or its property is bound.
Notwithstanding the foregoing, the Opinion of Counsel required by
clause (i) of paragraph (3) above need not be delivered if all Notes not
theretofore delivered to the Trustee for cancellation (i) have become due and
payable, (ii) will become due and payable on the Maturity Date within one year,
or (iii) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
"Discharged" means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by, and obligations under,
the Notes and to have satisfied all the obligations under this Indenture
relating to the Notes (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except (i) the rights of
the Holders of Notes to receive, from the trust fund
95
-86-
described in clause (1) above, payment of the principal of and the interest on
such Notes when such payments are due, (ii) the Company's obligations with
respect to the Notes under Sections 2.03, 2.04, 2.05, 2.06, 2.07, 7.07 and 7.08
and (iii) the rights, powers, trusts, duties and immunities of the Trustee
hereunder.
SECTION 8.02. Acknowledgment of Discharge by Trustee.
Subject to Section 8.05, after (i) the conditions of Section 8.01
have been satisfied, (ii) the Company has paid or caused to be paid all other
sums payable hereunder by the Company and (iii) the Company has delivered to
the Trustee an Opinion of Counsel, stating that all conditions precedent
referred to in clause (i) above relating to the satisfaction and discharge of
this Indenture have been complied with, the Trustee upon written request shall
acknowledge in writing the discharge of the Company's obligations under this
Indenture except for those surviving obligations specified in this Article
Eight.
"U.S. Government Obligations" means direct obligations of, and
obligations guaranteed by, the United States of America for the payment of
which the full faith and credit of the United States of America is pledged.
SECTION 8.03. Application of Trust Money.
The Trustee shall hold in trust, money, U.S. Legal Tender or U.S.
Government Obligations deposited with it pursuant to Section 8.01. It shall
apply the deposited money and the money from U.S. Legal Tender and U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal and accrued and unpaid interest on the
Notes.
SECTION 8.04. Repayment to the Company.
The Trustee and the Paying Agent shall promptly pay to the
Company any money held by them for the payment of principal or interest that
remains unclaimed for one year; provided,
96
-87-
however, that the Trustee or such Paying Agent may, at the expense of the
Company, cause to be published once in a newspaper of general circulation in
The City of New York or mailed to each Holder, notice 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 publication or mailing, any unclaimed
balance of such money then remaining will be repaid to the Company. After
payment to the Company, Holders entitled to the money must look to the Company
for payment as general creditors unless an applicable abandoned property law
designates another Person and all liability of the Trustee and Paying Agent
with respect to such money shall cease.
SECTION 8.05. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money, U.S.
Legal Tender or U.S. Government Obligations in accordance with Section 8.01 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.01 until such time as the Trustee or Paying Agent is permitted to
apply all such money, U.S. Legal Tender or U.S. Government Obligations in
accordance with Section 8.01; provided, however, that if the Company has made
any payment of interest on or principal of any Notes because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money, U.S. Legal
Tender or U.S. Government Obligations held by the Trustee or Paying Agent.
97
-88-
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company, when authorized by a Board Resolution, and the
Trustee, together, may amend or supplement this Indenture or the Notes without
notice to or consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency; provided
that such amendment or supplement does not, in the opinion of the
Trustee, adversely affect the rights of any Holder in any material
respect;
(2) to comply with Article Five;
(3) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(4) to make any other change that does not adversely affect in
any material respect the rights of any Noteholders hereunder; or
(5) to provide for issuance of the Exchange Notes, which will
have terms substantially identical in all material respects to the
Initial Notes (except that the transfer restrictions contained in the
Initial Notes will be modified or eliminated, as appropriate), and which
will be treated together with any outstanding Initial Notes, as a single
issue of securities;
provided, that the Company has delivered to the Trustee an Opinion of Counsel
and an Officers' Certificate, each stating that such amendment or supplement
complies with the provisions of this Section 9.01.
SECTION 9.02. With Consent of Holders.
Subject to Section 6.07, the Company, when authorized by a Board
Resolution, and the Trustee, together, with the
98
-89-
written consent of the Holder or Holders of at least a majority in aggregate
principal amount of the outstanding Notes, may amend or supplement this
Indenture or the Notes, without notice to any other Holders. Subject to
Section 6.07, the Holder or Holders of a majority in aggregate principal amount
of the outstanding Notes may waive compliance by the Company with any provision
of this Indenture or the Notes without notice to any other Noteholder. No
amendment, supplement or waiver, including a waiver pursuant to Section 6.04,
shall, without the consent of each Holder of each Note affected thereby:
(1) change the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver of any provision of this
Indenture or the Notes;
(2) reduce the rate or extend the time for payment of interest
on any Note;
(3) reduce the principal amount of any Note;
(4) change the Maturity Date of any Note, or alter the
optional redemption provisions contained in Article Three of this
Indenture and in Paragraph 5 of the Notes in a manner adverse to any
Holder;
(5) make any changes in the provisions concerning waivers of
Defaults or Events of Default by Holders of the Notes or the rights of
Holders to recover the principal of, interest on, or optional redemption
payments with respect to, any Note;
(6) make the principal of, or the interest on, any Note
payable with anything or in any manner other than as provided for in
this Indenture and the Notes; or
(7) make any change in Article Ten or the definitions used in
Article Ten that adversely affects the holders of the Notes.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of
99
-90-
any proposed amendment, supplement or waiver, but it shall be sufficient if
such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
SECTION 9.03. Compliance with TIA.
Every amendment, waiver or supplement of this Indenture or the
Notes shall comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder 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. Subject to the following paragraph, any such Holder or subsequent
Holder may revoke the consent as to his Note or portion of his Note by notice
to the Trustee or the Company received before the date on which the Trustee
receives an Officers' Certificate certifying that the Holders of the requisite
principal amount of Notes have consented (and not theretofore revoked such
consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver, which record date shall be at least 30 days
prior to the first solicitation of such consent. If a record date is fixed,
then notwithstanding the last sentence of the immediately preceding paragraph,
those Persons who were Holders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date. No
100
-91-
such consent shall be valid or effective for more than 90 days after such
record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Noteholder, unless it makes a change described in any of
clauses (1) through (8) of Section 9.02, in which case, the amendment,
supplement or waiver shall bind only each Holder of a Note who has consented to
it and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note; provided that any such waiver
shall not impair or affect the right of any Holder to receive payment of
principal of and interest on a Note, on or after the respective due dates
expressed in such Note, or to bring suit for the enforcement of any such
payment on or after such respective dates without the consent of such Holder.
SECTION 9.05. Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a
Note, the Trustee may require the Holder of the Note to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Note about the
changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Note shall issue and
the Trustee shall authenticate a new Note that reflects the changed terms.
SECTION 9.06. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; provided that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture. Such Opinion of Counsel shall not be an expense of the Trustee.
101
-92-
ARTICLE TEN
SUBORDINATION
SECTION 10.01. Notes Subordinated to Senior Debt.
The Company covenants and agrees and the Trustee and each Holder
of the Notes, by its acceptance thereof, likewise covenants and agrees, that
all Notes shall be issued subject to the provisions of this Article Ten; and
the Trustee and each Person holding any Note, whether upon original issue or
upon transfer, assignment or exchange thereof, accepts and agrees that the
payment of all Obligations on the Notes by the Company shall, to the extent and
in the manner herein set forth, be subordinated and junior in right of payment
to the prior payment in full in cash or Cash Equivalents of all Obligations on
Senior Debt; that the subordination is for the benefit of, and shall be
enforceable directly by, the holders of Senior Debt, and that each holder of
Senior Debt whether now outstanding or hereafter created, incurred, assumed or
guaranteed shall be deemed to have acquired Senior Debt in reliance upon the
covenants and provisions contained in this Indenture and the Notes.
SECTION 10.02. No Payment on Notes in Certain Circumstances.
(a) If any default in the payment of any principal of or
interest on any Senior Debt, when due and payable, whether at maturity, upon
any redemption, by declaration or otherwise, occurs and is continuing, no
payment shall be made by, or on behalf of, the Company or any other Person on
its behalf with respect to any Obligations on the Notes, or to acquire any of
the Notes for cash or property or otherwise. In addition, if any other event
of default occurs and is continuing (or if such an event of default would occur
upon any payment with respect to the Notes or would arise upon the passage of
time as a result of such payment) with respect to any Designated Senior Debt,
as such event of default is defined in the instrument creating or evidencing
such Designated Senior Debt, permitting the holders of such Designated Senior
Debt then
102
-93-
outstanding to accelerate the maturity thereof and if the Representative for
the respective issue of Designated Senior Debt gives written notice of the
event of default to the Trustee (a "Default Notice"), then, unless and until
all events of default have been cured or waived or have ceased to exist or the
Trustee receives notice from the Representative for the respective issue of
Designated Senior Debt terminating the Blockage Period (as defined below),
during the 180 days after the delivery of such Default Notice (the "Blockage
Period"), neither the Company nor any other Person on its behalf shall (x) make
any payment with respect to any Obligations on the Notes or (y) acquire any of
the Notes for cash or property or otherwise. Notwithstanding anything herein
to the contrary, in no event will a Blockage Period extend beyond 180 days from
the date of delivery of a Default Notice. Only one such Blockage Period may be
commenced within any 360 consecutive days. For all purposes of this Section
10.02(a), no event of default which existed or was continuing on the date of
the commencement of any Blockage Period with respect to the Designated Senior
Debt initiating such Blockage Period shall be, or be made, the basis for the
commencement of a second Blockage Period by the Representative of such
Designated Senior Debt, whether or not within a period of 360 consecutive days,
unless such event of default shall have been cured or waived for a period of
not less than 90 consecutive days.
(b) In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any Holder when such payment is
prohibited by Section 10.02(a), such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior Debt
(pro rata to such holders on the basis of the respective amount of Senior Debt
held by such holders) or their respective Representatives, as their respective
interests may appear. The Trustee shall be entitled to rely on information
regarding amounts then due and owing on the Senior Debt, if any, received from
the holders of Senior Debt (or their Representatives) or, if such information
is not received from such holders or their Representatives, from the Company
and only amounts included in the information
103
-94-
provided to the Trustee shall be paid to the holders of Senior Debt.
Nothing contained in this Article Ten shall limit the right of
the Trustee or the Holders of Notes to take any action to accelerate the
maturity of the Notes pursuant to Section 6.02 or to pursue any rights or
remedies hereunder; provided that all Senior Debt thereafter due or declared to
be due shall first be paid in full in cash or Cash Equivalents before the
Holders are entitled to receive any payment with respect to Obligations on the
Notes.
SECTION 10.03. Payment Over of Proceeds upon Dissolution, Etc.
(a) Upon any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to creditors
upon any dissolution or winding-up or total or partial liquidation or
reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all Obligations due
or to become due upon all Senior Debt shall first be paid in full in cash or
Cash Equivalents, or such payment duly provided for, before any payment or
distribution is made on account of any Obligations on the Notes, or for the
acquisition of any of the Notes for cash or property or otherwise. Upon any
such dissolution, winding-up, liquidation or reorganization, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to which the Holders of the Notes or the Trustee
under this Indenture would be entitled, except for the provisions hereof, shall
be paid by the Company or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, or by the
Holders of the Notes or by the Trustee under this Indenture if received by
them, directly to the holders of Senior Debt (pro rata to such holders on the
basis of the respective amounts of Senior Debt held by such holders) or their
respective Representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of Senior Debt
remaining
104
-95-
unpaid until all such Senior Debt has been paid in full in cash or Cash
Equivalents after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of Senior Debt.
(b) To the extent any payment of Senior Debt (whether by or on
behalf of the Company, as proceeds of security or enforcement of any right of
setoff or otherwise) is declared to be fraudulent or preferential, set aside or
required to be paid to any receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person under any bankruptcy, insolvency,
receivership, fraudulent conveyance or similar law, then, if such payment is
recovered by, or paid over to, such receiver, trustee in bankruptcy,
liquidating trustee, agent or other similar Person, the Senior Debt or part
thereof originally intended to be satisfied shall be deemed to be reinstated
and outstanding as if such payment had not occurred.
(c) In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, shall be received by any Holder when
such payment or distribution is prohibited by Section 10.03(a), such payment or
distribution shall be held in trust for the benefit of, and shall be paid over
or delivered to, the holders of Senior Debt (pro rata to such holders on the
basis of the respective amount of Senior Debt held by such holders) or their
respective Representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of Senior Debt
remaining unpaid until all such Senior Debt has been paid in full in cash or
Cash Equivalents, after giving effect to any concurrent payment, distribution
or provision therefor to or for the holders of such Senior Debt.
(d) For purposes of this Article Ten, the words "cash, property
or securities" shall not be deemed to include securities of the Company or any
other corporation provided for by a plan of reorganization or readjustment
which are subordinated, to at least the same extent as the Notes, to the
payment of all Senior Debt and to the payment of all securities issued
105
-96-
in exchange therefor to the holders of Senior Debt at the time outstanding;
provided that with respect to securities of any other corporation, such
securities shall only be excluded from the operation of this Article Ten if the
plan of reorganization or readjustment has been approved by at least a majority
in principal amount of the Indebtedness then outstanding under the Credit
Agreement and at least a majority in principal amount of any other Designated
Senior Debt then outstanding. The consolidation of the Company with, or the
merger of the Company with or into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer of all or
substantially all of its assets, to another corporation upon the terms and
conditions provided in Article Five hereof and as long as permitted under the
terms of the Senior Debt shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section if such other
corporation shall, as a part of such consolidation, merger, conveyance or
transfer, assume the Company's obligations hereunder in accordance with Article
Five hereof.
SECTION 10.04. Payments May Be Paid Prior to Dissolution.
Nothing contained in this Article Ten or elsewhere in this
Indenture shall prevent (i) the Company, except under the conditions described
in Sections 10.02 and 10.03, from making payments at any time for the purpose
of making payments of principal of and interest on the Notes, or from
depositing with the Trustee any moneys for such payments, or (ii) in the
absence of actual knowledge by the Trustee that a given payment would be
prohibited by Section 10.02 or 10.03, the application by the Trustee of any
moneys deposited with it for the purpose of making such payments of principal
of and interest on the Notes, to the Holders entitled thereto unless at least
one Business Day prior to the date upon which such payment would otherwise
become due and payable, the Trustee shall have received the written notice
provided for in Section 10.02(a) or in Section 10.07. The Company shall give
prompt written notice to the Trustee of any dissolution, winding-up,
liquidation or reorganization of the Company.
106
-97-
SECTION 10.05. Subrogation.
Subject to the payment in full of all Senior Debt, the Holders of
the Notes shall be subrogated to the rights of the holders of Senior Debt to
receive payments or distributions of cash, property or securities of the
Company applicable to the Senior Debt until the Notes shall be paid in full;
and, for the purposes of such subrogation, no such payments or distributions to
the holders of the Senior Debt by or on behalf of the Company or by or on
behalf of the Holders by virtue of this Article Ten which otherwise would have
been made to the Holders shall, as between the Company and the Holders of the
Notes, be deemed to be a payment by the Company to or on account of the Senior
Debt, it being understood that the provisions of this Article Ten are and are
intended solely for the purpose of defining the relative rights of the Holders
of the Notes, on the one hand, and the holders of the Senior Debt, on the other
hand.
SECTION 10.06. Obligations of the Company Unconditional.
Nothing contained in this Article Ten or elsewhere in this
Indenture or in the Notes is intended to or shall impair, as among the Company,
its creditors other than the holders of Senior Debt, and the Holders of the
Notes, the obligation of the Company, which is absolute and unconditional, to
pay to the Holders of the Notes the principal of and any interest on the Notes
as and when the same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of the Holders of
the Notes and creditors of the Company other than the holders of the Senior
Debt, nor shall anything herein or therein prevent the Holder of any Note or
the Trustee on its behalf from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if
any, in respect of cash, property or securities of the Company received upon
the exercise of any such remedy.
107
-98-
SECTION 10.07. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Notes pursuant to the provisions of this
Article Ten. Regardless of anything to the contrary contained in this Article
Ten or elsewhere in this Indenture, the Trustee shall not be charged with
knowledge of the existence of any default or event of default with respect to
any Senior Debt or of any other facts which would prohibit the making of any
payment to or by the Trustee unless and until the Trustee shall have received
notice in writing from the Company, or from a holder of Senior Debt or a
Representative therefor, and, prior to the receipt of any such written notice,
the Trustee shall be entitled to assume (in the absence of actual knowledge to
the contrary) that no such facts exist.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article Ten, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amounts of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article Ten, and if such evidence is not furnished the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such person to receive such payment.
SECTION 10.08. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article Ten, the Trustee, subject to the provisions of
Article Seven hereof, and the Holders of the Notes shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in which
bankruptcy, dissolution, winding-up, liquidation or reorganization proceedings
are pending, or upon a certificate of the receiver,
108
-99-
trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution, delivered to the Trustee or the holders of the Notes,
for the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Debt and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
Ten.
SECTION 10.09. Trustee's Relation to Senior Debt.
The Trustee and any agent of the Company or the Trustee shall be
entitled to all the rights set forth in this Article Ten with respect to any
Senior Debt which may at any time be held by it in its individual or any other
capacity to the same extent as any other holder of Senior Debt and nothing in
this Indenture shall deprive the Trustee or any such agent of any of its rights
as such holder.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Ten, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt.
Whenever a distribution is to be made or a notice given to
holders or owners of Senior Debt, the distribution may be made and the notice
given to their Representative, if any.
SECTION 10.10. Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Debt.
No right of any present or future holders of any Senior Debt to
enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms of this Indenture,
109
-100-
regardless of any knowledge thereof that any such holder may have or otherwise
be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to time,
without the consent of or notice to the Trustee, without incurring
responsibility to the Trustee or the Holders of the Notes and without impairing
or releasing the subordination provided in this Article Ten or the obligations
hereunder of the Holders of the Notes to the holders of the Senior Debt, do any
one or more of the following: (i) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter, Senior Debt, or otherwise
amend or supplement in any manner Senior Debt, or any instrument evidencing the
same or any agreement under which Senior Debt is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt; (iii) release any Person liable in any manner
for the payment or collection of Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 10.11. Noteholders Authorize Trustee to Effectuate Subordination of
Notes.
Each Holder of Notes by his acceptance of them authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate, as between the holders of Senior Debt
and the Holders of Notes, the subordination provided in this Article Ten, and
appoints the Trustee his attorney-in-fact for such purposes, including, in the
event of any dissolution, winding-up, liquidation or reorganization of the
Company (whether in bankruptcy, insolvency, receivership, reorganization or
similar proceedings or upon an assignment for the benefit of creditors or
otherwise) tending towards liquidation of the business and assets of the
Company, the filing of a claim for the unpaid balance of its or his Notes and
accrued interest in the form required in those proceedings.
110
-101-
SECTION 10.12. This Article Ten Not to Prevent Events of Default.
The failure to make a payment on account of principal of or
interest on the Notes by reason of any provision of this Article Ten will not
be construed as preventing the occurrence of an Event of Default.
SECTION 10.13. Trustee's Compensation Not Prejudiced.
Nothing in this Article Ten will apply to amounts due to the
Trustee pursuant to other sections in this Indenture.
ARTICLE ELEVEN
GUARANTEE
SECTION 11.01. Unconditional Guarantee.
Each Subsidiary Guarantor, if any, hereby unconditionally
guarantees in accordance with the provisions of Section 4.18, to each Holder of
a Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, that: (i) the principal of and interest on the Notes
will be promptly paid in full when due, subject to any applicable grace period,
whether at maturity, by acceleration or otherwise and interest on the overdue
principal, if any, and interest on any interest, to the extent lawful, of the
Notes to the Holders or the Trustee will be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and (ii) in case of any
extension of time of payment or renewal of any Notes, the same will be promptly
paid in full when due or performed in accordance with the terms of the
extension or renewal, subject to any applicable grace period, whether at stated
maturity, by acceleration or otherwise, subject, however, in the case of
clauses (i) and (ii) above, to the limitations set forth in Section 11.03.
Each Subsidiary Guarantor, if any, hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
111
-102-
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, the recovery of any judgment against the
Company, and action to enforce the same or any other circumstance that might
otherwise constitute a legal or equitable discharge or defense of a guarantor.
Each Subsidiary Guarantor, if any, hereby waives diligence, presentment, demand
for payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenants that its
Subsidiary Guarantee will not be discharged except by complete performance of
the obligations contained in the Notes, this Indenture and in its Subsidiary
Guarantee. If any Noteholder or the Trustee is required by any court or
otherwise to return to the Company, any Subsidiary Guarantor or any custodian,
trustee, liquidator or other similar official acting in relation to the Company
or any such Subsidiary Guarantor, any amount paid by the Company or any such
Subsidiary Guarantor to the Trustee or such Noteholder, each Subsidiary
Guarantee to the extent theretofore discharged, shall be reinstated in full
force and effect. Each Subsidiary Guarantor further agrees that, as between it
and all other Subsidiary Guarantors, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article Six for the purposes of a
Subsidiary Guarantee notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (y) in the event of any acceleration of such obligations as provided in
Article Six, such obligations (whether or not due and payable) shall forthwith
become due and payable by the Subsidiary Guarantors for the purpose of the
Subsidiary Guarantees.
SECTION 11.02. Severability.
In case any provision of this Article Eleven shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
112
-103-
SECTION 11.03. Limitation of Liability.
Each Subsidiary Guarantor, and by its acceptance hereof each
Holder, hereby confirms that it is the intention of all such parties that the
guarantee by each Subsidiary Guarantor pursuant to its Subsidiary Guarantee not
constitute a fraudulent transfer or conveyance for purposes of any Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar Federal or state law. To effectuate the foregoing intention,
the Holders and each Subsidiary Guarantor hereby irrevocably agree that the
obligations of each Subsidiary Guarantor under its Subsidiary Guarantee shall
be limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Subsidiary Guarantor and after giving
effect to any collections from or payments made by or on behalf of any of the
other Subsidiary Guarantors in respect of the obligations of such other
Subsidiary Guarantors under the other Subsidiary Guarantees or pursuant to
Section 11.05, result in the obligations of such Subsidiary Guarantor under its
Subsidiary Guarantee not constituting such fraudulent transfer or conveyance.
SECTION 11.04. Subsidiary Guarantors May Consolidate, etc., on Certain
Terms.
(a) Nothing contained in this Indenture or in the Notes shall
prevent any consolidation or merger of a Subsidiary Guarantor with or into the
Company or another Subsidiary Guarantor or shall prevent any sale of assets or
conveyance of the property of a Subsidiary Guarantor as an entirety or
substantially as an entirety, to the Company or another Subsidiary Guarantor.
Upon any such consolidation, merger, sale or conveyance, the Subsidiary
Guarantee given by such Subsidiary Guarantor shall no longer have any force or
effect.
(b) Upon the sale or disposition as an entirety (whether by
merger, stock purchase, asset sale or otherwise) of a Subsidiary Guarantor (or
all or substantially all its assets) to a Person that is not a Subsidiary of
the Company and which sale or disposition is otherwise in compliance with
Section 4.18 and the other terms of this Indenture, such Subsidiary
113
-104-
Guarantor shall be deemed released from all obligations under this
Article Eleven without any further action required on the part of the Trustee
or any Holder.
The Trustee shall deliver an appropriate instrument evidencing
such release upon receipt of a request by the Company accompanied by Officers'
Certificates and Opinions of Counsel certifying as to the compliance with this
Section 11.04. Any Subsidiary Guarantor not so released remains liable for the
full amount of principal of and interest on the Securities as provided in this
Article Eleven.
SECTION 11.05. Contribution.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in the
event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under any of the Subsidiary Guarantees, such Funding
Guarantor shall be entitled to a contribution from all other Subsidiary
Guarantors in a pro rata amount based on the Adjusted Net Assets (as defined
below) of each of the Subsidiary Guarantors (including the Funding Guarantor)
for all payments, damages and expenses incurred by that funding Guarantor in
discharging the Company's obligations with respect to the Notes or any
obligations of any of the other Subsidiary Guarantors with respect to any of
the Subsidiary Guarantees or based on such other determination as may be
mutually agreed upon between or among each such Subsidiary Guarantor.
"Adjusted Net Assets" of any Person at any date shall mean the lesser of the
amount by which (x) the fair value of the property of such Person exceeds the
total amount of liabilities, including, without limitation, contingent
liabilities (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date), but excluding liabilities under a Subsidiary
Guarantee of such person at such date and (y) the present fair salable value of
the assets of such Person at such date exceeds the amount that will be required
to pay the probable liability of such Person on its debts (after giving effect
to all other fixed and contingent liabilities incurred or assumed on such
date), excluding debt
114
-105-
in respect of the Subsidiary Guarantee of such Person, as they become absolute
and matured.
SECTION 11.06. Waiver of Subrogation.
Until all Obligations under each of the Subsidiary Guarantees,
the Notes and this Indenture are paid in full, each of the Subsidiary
Guarantors hereby irrevocably waives any claims or other rights that it may now
or hereafter acquire against the Company that arise from the existence,
payment, performance or enforcement of its obligations under its Subsidiary
Guarantee and this Indenture, including, without limitation, any right of
subrogation, reimbursement, exoneration, indemnification and any right to
participate in any claim or remedy of any Holder of Notes against the Company,
whether or not such claim, remedy or right arises in equity, or under contract,
statute or common law, including, without limitation, the right to take or
receive from the Company, directly or indirectly, in cash or other property or
by set-off or in any other manner, payment or security on account of such claim
or other rights. If any amount shall be paid to any of the Subsidiary
Guarantors in violation of the preceding sentence and the Notes shall not have
been paid in full, such amount shall have been deemed to have been paid to such
Person for the benefit of, and held in trust for the benefit of, the Holders of
the Notes, and shall, forthwith be paid to the Trustee for the benefit of such
Holders to be credited and applied upon the Notes, whether matured or
unmatured, in accordance with the terms of this Indenture. Each of the
Subsidiary Guarantors acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this Indenture and
that the waiver set forth in this Section 11.06 is knowingly made in
contemplation of such benefits.
SECTION 11.07. Execution of Guarantee.
To evidence their guarantee to the Noteholders set forth in this
Article Eleven, each Subsidiary Guarantor hereby agrees to execute a Subsidiary
Guarantee in substantially the form of Exhibit E to this Indenture, which shall
be endorsed on each Note ordered to be authenticated and delivered by the
115
-106-
Trustee. Each Subsidiary Guarantor hereby agrees that its Subsidiary Guarantee
set forth in this Article Eleven shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of a Subsidiary
Guarantee. A Subsidiary Guarantee shall be signed on behalf of a Subsidiary
Guarantor by two Officers, or an Officer and an Assistant Secretary, or one
Officer shall sign and one Officer or an Assistant Secretary (each of whom
shall, in each case, have been duly authorized by all requisite corporate or
partnership actions) shall attest to the Subsidiary Guarantee prior to the
authentication of the Note on which it is endorsed, and the delivery of such
Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Subsidiary Guarantee on behalf of such
Subsidiary Guarantor. Such signatures upon a Subsidiary Guarantee may be by
manual or facsimile signature of such officers and may be imprinted or
otherwise reproduced on the Subsidiary Guarantee and in case any such officer
who shall have signed a Subsidiary Guarantee shall cease to be such officer
before the Note on which the Subsidiary Guarantee is endorsed shall have
authenticated and delivered by the Trustee or disposed of by the Company, such
Note nevertheless may be authenticated and delivered or disposed of as though
the Person who signed the Subsidiary Guarantee had not ceased to be such
officer of the Subsidiary Guarantor. At any time after a Subsidiary Guarantee
is terminated pursuant to the terms of this Indenture, the Trustee shall upon
written notice from the Company (and delivery of an Officer's Certificate)
remove any such endorsement which relates to such Subsidiary Guarantee.
SECTION 11.08. Waiver of Stay, Extension or Usury Laws.
Each Subsidiary Guarantor, if any, covenants (to the extent that
it may lawfully do so) that it will not at any time insist upon, plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or forgive such
Subsidiary Guarantor from performing a Subsidiary Guarantee as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the
116
-107-
performances of this Indenture; and (to the extent that it may lawfully do so)
each Subsidiary Guarantor, if any, hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TIA Controls.
If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
SECTION 12.02. Notices.
Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made by hand
delivery, by commercial courier service, by telex, by telecopier or registered
or certified mail, postage prepaid, return receipt requested, addressed as
follows:
if to the Company:
Xxxxxxx Container Corporation
000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxxx, Esq.
117
-108-
if to the Trustee:
(1) For payment, registration, transfer, exchange and tender of the Notes:
By Hand: By Mail:
Chase Bank of Texas, National Chase Bank of Texas, National
Association Association
Attention: Registered Bond Events Attention: Registered Bond
One Main Place Events
0000 Xxxx Xxxxxx, 00xx Xxxxx P.O. Box 2320
Dallas, Texas 75202 Xxxxxx, Xxxxx 00000-0000
Telephone: (000) 000-0000 or (000) 000-0000
(2) For all other communications relating to the Notes:
Chase Bank of Texas, National Association
Global Trust Services
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Each of the Company and the Trustee by written notice to each
other such Person may designate additional or different addresses for notices
to such Person. Any notice or communication to the Company or the Trustee
shall be deemed to have been given or made as of the date so delivered if
personally delivered; when receipt is confirmed if delivered by commercial
courier; when answered back, if telexed; when receipt is acknowledged, if
faxed; and upon receipt if sent by registered or certified mail, postage
prepaid.
Any notice or communication mailed to a Noteholder shall be
mailed to him by first class mail or other equivalent means at his address as
it appears on the registration books of
118
-109-
the Registrar and shall be sufficiently given to him if so mailed within the
time prescribed.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other
Noteholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 12.03. Communications by Holders with Other Holders.
Noteholders may communicate pursuant to TIA Section 312(b) with
other Noteholders with respect to their rights under this Indenture or the
Notes. The Company, the Trustee, the Registrar and any other Person shall have
the protection of TIA Section 312(c).
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee
upon request:
(1) an Officers' Certificate, in form and substance satisfactory
to the Trustee, stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.07, shall include:
119
-110-
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is reasonably necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 12.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of Noteholders.
The Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 12.07. Legal Holidays.
A "Legal Holiday" used with respect to a particular place of
payment is a Saturday, a Sunday or a day on which banking institutions in Xxx
Xxxx, Xxx Xxxx, Xxxxxxx, Xxxxx or at such place of payment are not required to
be open. If a payment date is a Legal Holiday at such place, payment may be
made at such place on the next succeeding day that is not a Legal Holiday, and
no interest shall accrue for the intervening period.
SECTION 12.08. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS.
120
-111-
Each of the parties hereto agrees to submit to the jurisdiction of the courts
of the State of New York in any action or proceeding arising out of or relating
to this Indenture.
SECTION 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of any of the Company or any of its Subsidiaries. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 12.10. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as
such, of the Company or the Trustee shall not have any liability for any
obligations of the Company under the Notes or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creations.
Each Noteholder by accepting a Note waives and releases all such liability.
Such waiver and release are part of the consideration for the issuance of the
Notes.
SECTION 12.11. Successors.
All agreements of the Company in this Indenture and the Notes
shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successors.
SECTION 12.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together shall represent
the same agreement.
SECTION 12.13. 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 respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
121
-112-
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
122
-113-
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, all as of the date first written above.
XXXXXXX CONTAINER CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Treasurer
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Xxxxx Xxxxx
----------------------------
Name: Xxxxx Xxxxx
Title: Vice President and
Trust Officer
123
EXHIBIT A
[FORM OF SERIES A SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "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 (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE ACT) OR (B) IT IS AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE ACT) (AN "ACCREDITED INVESTOR") OR (C) IT
IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION,
(2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF
THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE
ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 000X XXXXX XXX XXX, (X) XXXXXX XXX
XXXXXX XXXXXX TO AN ACCREDITED INVESTOR 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
ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE 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 TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THE SECURITY, IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND THE ISSUER 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
A-1
124
OF THE 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
ACT.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE
OF THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR DEPOSITARY
OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTION 2.17 OF THE INDENTURE.
A-2
125
CUSIP No.:
XXXXXXX CONTAINER CORPORATION
9 7/8% Senior Subordinated Note due 2008, Series A
No. 1 $
XXXXXXX CONTAINER CORPORATION, a Delaware corporation (the
"Company," which term includes any successor entity), for value received
promises to pay to Cede & Co. or registered assigns, the principal sum of
Dollars, on February 15, 2008.
Interest Payment Dates: February 15 and August 15, commencing
August 15, 1998
Record Dates: February 1 and August 1
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
A-3
126
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
Dated: February 23, 1998
XXXXXXX CONTAINER CORPORATION
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
A-4
127
This is one of the Notes referred to in the within-mentioned
Indenture.
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
By:
--------------------------------
Authorized Signatory
Dated: February 23, 1998
A-5
128
(REVERSE OF SECURITY)
XXXXXXX CONTAINER CORPORATION
9 7/8% Senior Subordinated Note due 2008, Series A
1. Interest.
XXXXXXX CONTAINER CORPORATION, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at
the rate per annum shown above. Interest on the Notes will accrue from the
most recent date on which interest has been paid or, if no interest has been
paid, from the Issue Date. The Company will pay interest semi-annually in
arrears on each Interest Payment Date, commencing August 15, 1998. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal from time to
time on demand at the rate of 10 7/8% per annum; it shall pay interest on
overdue installments of interest (without regard to any applicable grace
periods) from time to time on demand at the rate of 10 7/8% per annum.
2. Method of Payment.
The Company shall pay interest on the Notes (except defaulted
interest) to the Persons who are the registered Holders at the close of
business on the Record Date immediately preceding the Interest Payment Date
even if the Notes are cancelled on registration of transfer or registration of
exchange after such Record Date. Holders must surrender Notes to a Paying
Agent to collect principal payments. The Company shall pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts ("U.S. Legal Tender"). However,
the Company may pay principal and interest by its check payable in such U.S.
Legal Tender. The Company may deliver any such interest payment to the Paying
Agent or to a Holder at the Holder's registered address.
A-6
129
3. Paying Agent and Registrar.
Initially, Chase Bank of Texas, National Association (the
"Trustee") will act as Paying Agent and Registrar. The Company may change any
Paying Agent, Registrar or co-Registrar without notice to the Holders. The
Company or any of its Subsidiaries may, subject to certain exceptions, act as
Paying Agent, Registrar or co-Registrar.
4. Indenture.
The Company issued the Notes under an Indenture, dated as of
February 23, 1998 (the "Indenture"), between the Company and the Trustee. This
Note is one of a duly authorized issue of Notes of the Company designated as
its 9 7/8% Senior Subordinated Notes due 2008, Series A (the "Notes"), limited
(except as otherwise provided in the Indenture) in aggregate principal amount
to $250,000,000, which may be issued under the Indenture. Capitalized terms
herein are used as defined in the Indenture unless otherwise defined herein.
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 (15 U.S.
Code Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date of the
Indenture. Notwithstanding anything to the contrary herein, the Notes are
subject to all such terms, and Holders of Notes are referred to the Indenture
and the TIA for a statement of them. The Notes are general unsecured
obligations of the Company.
5. Subordination.
The Notes are subordinated in right of payment, in the manner and
to the extent set forth in the Indenture, to the prior payment in full in cash
or Cash Equivalents of all Senior Debt of the Company, whether outstanding on
the date of the Indenture or thereafter created, incurred, assumed or
guaranteed. Each Holder by his acceptance hereof agrees to be bound by such
provisions and authorizes and expressly directs the Trustee, on his behalf, to
take such action as may be necessary or appropriate to effectuate the
subordination provided for in the
A-7
130
Indenture and appoints the Trustee his attorney-in-fact for such purposes.
6. Optional Redemption.
The Notes may not be redeemed at the option of the Company prior
to February 15, 2003. Thereafter, the Company may redeem all or any of the
Notes at any time at redemption prices (expressed in percentages of the
principal amount), set forth below plus accrued interest, if any, to the
Redemption Date if redeemed during the 12-month period beginning on February 15
in the years indicated below:
Year Percentage
---- ----------
2003. . . . . . . . . . . . . . . 105.063%
2004. . . . . . . . . . . . . . . 103.375%
2005. . . . . . . . . . . . . . . 101.688%
2006 and thereafter . . . . . . . 100.000%
Notwithstanding the foregoing, at any time prior to February 15,
2001, the Company may redeem up to 33% of the aggregate principal amount of
Notes with the net proceeds from one or more Equity Offerings of the Company at
a redemption price equal to 109.875% of the principal amount thereof, plus
accrued and unpaid interest, if any, thereon to the date of redemption;
provided, however, that, after giving effect to any such redemption, at least
$125,000,000 aggregate principal amount of the Notes originally issued remain
outstanding. Any such redemption must occur on or prior to 120 days after the
receipt of such net proceeds.
In addition, upon the occurrence of a Change of Control prior to
February 15, 2003, the Company, at its option, may redeem all, but not less
than all, of the outstanding Notes at a redemption price equal to 100% of the
principal amount thereof plus the applicable Make-Whole Premium (a "Change of
Control Redemption"). The Company shall give not less than 30 nor more than 60
days notice of such redemption within 30 days following a Change of Control.
A-8
131
"Make-Whole Premium" with respect to a Note means an amount equal
to the greater of (i) 1.0% of the outstanding principal amount of such Note and
(ii) the excess of (a) the present value of the remaining interest, premium and
principal payments due on such Note as if such Note were redeemed on February
15, 2003 computed using a discount rate equal to the Treasury Rate plus 62.5
basis points, over (b) the outstanding principal amount of such Note.
7. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder of Notes to be redeemed
at such Holder's registered address. Notes in denominations larger than $1,000
may be redeemed in part.
Except as set forth in the Indenture, from and after any
Redemption Date, if monies for the redemption of the Notes called for
redemption shall have been deposited with the Paying Agent for redemption on
such Redemption Date, then, unless the Company defaults in the payment of such
Redemption Price, the Notes called for redemption will cease to bear interest
and the only right of the Holders of such Notes will be to receive payment of
the Redemption Price.
8. Change of Control Offer.
In the event of a Change of Control, upon the satisfaction of the
conditions set forth in the Indenture, the Company shall be required to offer
to purchase all of the then outstanding Notes pursuant to a Change of Control
Offer at a purchase price equal to 101% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of purchase. Holders of Notes
which are the subject of such an offer to repurchase shall receive an offer to
repurchase and may elect to have such Notes repurchased pursuant to and in
accordance with the terms of the Indenture.
X-0
000
0. Limitation on Disposition of Assets.
Under certain circumstances the Company is required to apply the
net proceeds from Asset Sales to offer to repurchase Notes at a price equal to
100% of the aggregate principal amount thereof, plus accrued interest to the
date of purchase.
10. Denominations; Transfer; Exchange.
The Notes are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Notes in accordance with the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay certain transfer taxes or
similar governmental charges payable in connection therewith as permitted by
the Indenture. The Registrar need not register the transfer of or exchange any
Notes or portions thereof selected for redemption.
11. Persons Deemed Owners.
The registered Holder of a Note shall be treated as the owner of
it for all purposes.
12. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for one year, the Trustee and the Paying Agents will pay the money
back to the Company. After that, all liability of the Trustee and such Paying
Agents with respect to such money shall cease.
13. Discharge Prior to Redemption or Maturity.
If the Company at any time deposits with the Trustee U.S. Legal
Tender or U.S. Government Obligations sufficient to pay the principal of and
interest on the Notes to redemption or maturity and complies with the other
provisions of the Indenture relating thereto, the Company will be discharged
from certain provisions of the Indenture and the Notes (including certain
A-10
133
covenants, but excluding its obligation to pay the principal of and interest on
the Notes).
14. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding, and any
existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Notes then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture or the Notes
to, among other things, cure any ambiguity, defect or inconsistency, provide
for uncertificated Notes in addition to or in place of certificated Notes, or
comply with Article Five of the Indenture or make any other change that does
not adversely affect in any material respect the rights of any Holder of a
Note.
15. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the
Company and its Subsidiaries to, among other things, incur additional
Indebtedness, make payments in respect of its Capital Stock or certain
Indebtedness, enter into transactions with Affiliates, create dividend or other
payment restrictions affecting Subsidiaries, merge or consolidate with any
other Person, sell, assign, transfer, lease, convey or otherwise dispose of all
or substantially all of its assets or adopt a plan of liquidation. Such
limitations are subject to a number of important qualifications and exceptions.
The Company must annually report to the Trustee on compliance with such
limitations.
16. Successors.
When a successor assumes, in accordance with the Indenture, all
the obligations of its predecessor under the Notes and the Indenture, the
predecessor will be released from those obligations.
X-00
000
00. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount, of Notes then
outstanding may declare all the Notes to be due and payable in the manner, at
the time and with the effect provided in the Indenture. Holders of Notes may
not enforce the Indenture or the Notes except as provided in the Indenture.
The Trustee is not obligated to enforce the Indenture or the Notes unless it
has received indemnity satisfactory to it. The Indenture permits, subject to
certain limitations therein provided Holders of a majority in aggregate
principal amount of the Notes then outstanding to direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of Notes
notice of any continuing Default or Event of Default (except a Default in
payment of principal or interest) if it determines that withholding notice is
in their interest.
18. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may otherwise deal with
the Company, its Subsidiaries or their respective Affiliates as if it were not
the Trustee.
19. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as
such, of the Company shall have any liability for any obligation of the Company
under the Notes or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a Note 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.
X-00
000
00. Authentication.
This Note shall not be valid until the Trustee or authenticating
agent manually signs the certificate of authentication on this Note.
21. Governing Law.
The Laws of the State of New York shall govern this Note and the
Indenture, without regard to principles of conflict of laws.
22. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Note 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).
23. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Note Identification Procedures, the Company will cause CUSIP numbers to
be printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
24. Registration Rights.
Pursuant to the Registration Rights Agreement, the Company will
be obligated upon the occurrence of certain events to consummate an exchange
offer pursuant to which the Holder of this Security shall have the right to
exchange this Series A Note for the Company's 9 7/8% Senior Subordinated Notes
due 2008, Series B, which have been registered under the Securities Act, in
like principal amount at maturity and having terms identical in all material
respects as the Series A Notes. The Holders shall be entitled to receive
certain additional interest
A-13
136
payments in the event such exchange offer is not consummated and upon certain
other conditions, all pursuant to and in accordance with the terms of the
Registration Rights Agreement.
25. Indenture.
Each Holder, by accepting a Note, agrees to be bound by all of
the terms and provisions of the Indenture, as the same may be amended from time
to time.
The Company will furnish to any Holder of a Note upon written
request and without charge a copy of the Indenture, which has the text of this
Note in larger type. Requests may be made to: XXXXXXX CONTAINER CORPORATION,
000 Xxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, Attn: Secretary.
A-14
137
[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
--------------------------------
--------------------------------------------------------------------------------
(please print or type name and address)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
--------------------------------------------------------------------------------
attorney to transfer the Note on the books of the Issuer with full power of
substitution in the premises.
Dated:
-------------------------------- --------------------------------------
NOTICE: The signature on this
assignment must correspond with
the name as it appears upon the
face of the within Note in
every particular without alteration
or enlargement or any change
whatsoever and be guaranteed by the
endorser's bank or broker.
In connection with any transfer of this Note occurring prior to
the date which is the earlier of (i) the date of the declaration by the SEC of
the effectiveness of a registration statement under the Securities Act of 1933,
as amended (the "Securities Act") covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) , the undersigned
A-15
138
confirms that it has not utilized any general solicitation or general
advertising in connection with the transfer and that this Note is being
transferred:
A-16
139
[Check One]
(1) -- to the Company or a subsidiary thereof; or
(2) -- pursuant to and in compliance with Rule 144A under the Securities Act;
or
(3) -- to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) that has
furnished to the Trustee a signed letter containing certain
representations and agreements (the form of which letter can be
obtained from the Trustee); or
(4) -- outside the United states to a "foreign person" in compliance with
Rule 904 of Regulation S under the Securities Act; or
(5) -- pursuant to the exemption from registration provided by Rule 144 under
the Securities Act; or
(6) -- pursuant to an effective registration statement under the Securities
Act; or
(7) -- pursuant to another available exemption from the registration
requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any person other than
the registered Holder thereof; provided, that if box (3), (4), (5) or (7) is
checked, the Company or the Trustee may require, prior to registering any such
transfer of the Notes, in its sole discretion, such legal opinions,
certifications (including an investment letter in the case of box (3) or (4))
and other information as the Trustee or the Company has reasonably requested 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.
A-17
140
If none of the foregoing boxes is checked, the Trustee or Registrar shall not
be obligated to register this Note in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.17 of the Indenture shall have
been satisfied.
Dated: Signed:
------------------ -------------------------------
(Sign exactly as name appears
on the other side of this Security)
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
------------------ -------------------------------
NOTICE: To be executed by
an executive officer
A-18
141
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.15 or Section 4.16 of the Indenture, check the appropriate box:
Section 4.15 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state the
amount you elect to have purchased:
$
---------------------
Dated:
-------------------------------- --------------------------------------
NOTICE: The signature on this
assignment must correspond with
the name as it appears upon the
face of the within Note in
every particular without alteration
or enlargement or any change
whatsoever and be guaranteed by the
endorser's bank or broker.
A-19
142
EXHIBIT B
CUSIP No.:
XXXXXXX CONTAINER CORPORATION
9 7/8% Senior Subordinated Note due 2008, Series B
No. 2 $
XXXXXXX CONTAINER CORPORATION, a Delaware corporation (the "Company,"
which term includes any successor entity), for value received promises to pay
to Cede & Co. or registered assigns, the principal sum of Dollars, on February
15, 2008.
Interest Payment Dates: February 15 and August 15, commencing August 15,
1998
Record Dates: February 1 and August 1
Reference is made to the further provisions of this Note contained herein,
which will for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually
or by facsimile by its duly authorized officers.
Dated: ,
XXXXXXX CONTAINER CORPORATION
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
B-1
143
This is one of the Notes referred to in the within-mentioned Indenture.
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
By:
----------------------------
Authorized Signatory
Dated: ,
B-2
144
(REVERSE OF SECURITY)
XXXXXXX CONTAINER CORPORATION
9 7/8% Senior Subordinated Note due 2008, Series B
1. Interest.
XXXXXXX CONTAINER CORPORATION, a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Note at the rate per
annum shown above. Interest on the Notes will accrue from the most recent date
on which interest has been paid or, if no interest has been paid, from the
Issue Date. The Company will pay interest semi-annually in arrears on each
Interest Payment Date, commencing August 15, 1998. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal from time to time on
demand at the rate of 10 7/8% per annum; it shall pay interest on overdue
installments of interest (without regard to any applicable grace periods) from
time to time on demand at the rate of 10 7/8% per annum.
2. Method of Payment.
The Company shall pay interest on the Notes (except defaulted interest) to
the Persons who are the registered Holders at the close of business on the
Record Date immediately preceding the Interest Payment Date even if the Notes
are cancelled on registration of transfer or registration of exchange after
such Record Date. Holders must surrender Notes to a Paying Agent to collect
principal payments. The Company shall pay principal and interest in money of
the United States that at the time of payment is legal tender for payment of
public and private debts ("U.S. Legal Tender"). However, the Company may pay
principal and interest by its check payable in such U.S. Legal Tender. The
Company may deliver any such interest payment to the Paying Agent or to a
Holder at the Holder's registered address.
B-3
145
3. Paying Agent and Registrar.
Initially, Chase Bank of Texas, National Association (the "Trustee") will
act as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to the Holders. The Company or any of
its Subsidiaries may, subject to certain exceptions, act as Paying Agent,
Registrar or co-Registrar.
4. Indenture.
The Company issued the Notes under an indenture, dated as of February 23,
1998 (the "Indenture"), between the Company and the Trustee. This Note is one
of a duly authorized issue of Notes of the Company designated as its 9 7/8%
Senior Subordinated Notes due 2008 (the "Notes"), limited (except as otherwise
provided in the Indenture) in aggregate principal amount to $250,000,000, which
may be issued under the Indenture. Capitalized terms herein are used as
defined in the Indenture unless otherwise defined herein. 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 (15 U.S. Code
Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture.
Notwithstanding anything to the contrary herein, the Notes are subject to all
such terms, and Holders of Notes are referred to the Indenture and said Act for
a statement of them. The Notes are general unsecured obligations of the
Company.
5. Subordination.
The Notes are subordinated in right of payment, in the manner and to the
extent set forth in the Indenture, to the prior payment in full in cash or Cash
Equivalents of all Senior Debt of the Company, whether outstanding on the date
of the Indenture or thereafter created, incurred, assumed or guaranteed. Each
Holder by his acceptance hereof agrees to be bound by such provisions and
authorizes and expressly directs the Trustee, on his behalf, to take such
action as may be necessary or appropriate to effectuate the subordination
provided for in the
B-4
146
Indenture and appoints the Trustee his attorney-in-fact for such purposes.
6. Optional Redemption.
The Notes may not be redeemed at the option of the Company prior to
February 15, 2003. Thereafter, the Company may redeem all or any of the Notes
at any time at redemption prices (expressed in percentages of the principal
amount), set forth below plus accrued interest, if any, to the Redemption Date
if redeemed during the 12-month period beginning on June 15 in the years
indicated below:
Year Percentage
---- ----------
2003. . . . . . . . . . . . . . . . . . . . . . 105.063%
2004. . . . . . . . . . . . . . . . . . . . . . 103.375%
2005. . . . . . . . . . . . . . . . . . . . . . 101.688%
2006 and thereafter . . . . . . . . . . . . . . 100.000%
Notwithstanding the foregoing, at any time prior to February 15, 2001, the
Company may redeem up to 33% of the aggregate principal amount of Notes with
the net proceeds from one or more Equity Offerings of the Company at the
redemption price equal to 109.875% of the principal amount thereof, plus
accrued and unpaid interest, if any, thereon to the date of redemption;
provided, however, that, after giving effect to any such redemption, at least
$125,000,000 aggregate principal amount of the Notes originally issued remain
outstanding. Any such redemption must occur on or prior to 120 days after the
receipt of such net proceeds.
In addition, upon the occurrence of a Change of Control prior to February
15, 2003, the Company, at its option, may redeem all, but not less than all, of
the outstanding Notes at a redemption price equal to 100% of the principal
amount thereof plus the applicable Make-Whole Premium (a "Change of Control
Redemption"). The Company shall give not less than 30 nor more than 60 days
notice of such redemption within 30 days following a Change of Control.
B-5
147
"Make-Whole Premium" with respect to a Note means an amount equal to the
greater of (i) 1.0% of the outstanding principal amount of such Note and (ii)
the excess of (a) the present value of the remaining interest, premium and
principal payments due on such Note as if such Note were redeemed on February
15, 2003 computed using a discount rate equal to the Treasury Rate plus 62.5
basis points, over (b) the outstanding principal amount of such Note.
7. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the Redemption Date to each Holder of Notes to be redeemed at such
Holder's registered address. Notes in denominations larger than $1,000 may be
redeemed in part.
Except as set forth in the Indenture, from and after any Redemption Date,
if monies for the redemption of the Notes called for redemption shall have been
deposited with the Paying Agent for redemption on such Redemption Date, then,
unless the Company defaults in the payment of such Redemption Price, the Notes
called for redemption will cease to bear interest and the only right of the
Holders of such Notes will be to receive payment of the Redemption Price.
8. Change of Control Offer.
In the event of a Change of Control, upon the satisfaction of the
conditions set forth in the Indenture, the Company shall be required to offer
to purchase all of the then outstanding Notes pursuant to a Change of Control
Offer at a purchase price equal to 101% of the principal amount thereof plus
accrued interest, if any, to the date of purchase Holders of the Notes which
are the subject of such an offer to repurchase shall receive an offer to
repurchase and may elect to have such Notes repurchased pursuant to and in
accordance with the terms of the Indenture.
B-6
148
9. Limitation on Disposition of Assets.
Under certain circumstances the Company is required to apply the net
proceeds from Asset Sales to offer to repurchase Notes at a price equal to 100%
of the aggregate principal amount thereof, plus accrued interest to the date of
purchase.
10. Denominations; Transfer; Exchange.
The Notes are in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000. A Holder shall register the transfer
of or exchange Notes in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay certain transfer taxes or similar governmental
charges payable in connection therewith as permitted by the Indenture. The
Registrar need not register the transfer of or exchange any Notes or portions
thereof selected for redemption.
11. Persons Deemed Owners.
The registered Holder of a Note shall be treated as the owner of it for
all purposes.
12. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed for
one year, the Trustee and the Paying Agents will pay the money back to the
Company. After that, all liability of the Trustee and such Paying Agents with
respect to such money shall cease.
13. Discharge Prior to Redemption or Maturity.
If the Company at any time deposits with the Trustee U.S. Legal Tender or
U.S. Government Obligations sufficient to pay the principal of and interest on
the Notes to redemption or maturity and complies with the other provisions of
the Indenture relating thereto, the Company will be discharged from certain
provisions of the Indenture and the Notes (including certain
B-7
149
covenants, but excluding its obligation to pay the principal of and interest on
the Notes).
14. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may be amended
or supplemented with the written consent of the Holders of at least a majority
in aggregate principal amount of the Notes then outstanding, and any existing
Default or Event of Default or compliance with any provision may be waived with
the consent of the Holders of a majority in aggregate principal amount of the
Notes then outstanding. Without notice to or consent of any Holder, the
parties thereto may amend or supplement the Indenture or the Notes to, among
other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Notes in addition to or in place of certificated Notes, or
comply with Article Five of the Indenture or make any other change that does
not adversely affect in any material respect the rights of any Holder of a
Note.
15. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the Company
and its Subsidiaries to, among other things, incur additional Indebtedness,
make payments in respect of its Capital Stock or certain Indebtedness, enter
into transactions with Affiliates, create dividend or other payment
restrictions affecting Subsidiaries, merge or consolidate with any other
Person, sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its assets or adopt a plan of liquidation. Such
limitations are subject to a number of important qualifications and exceptions.
The Company must annually report to the Trustee on compliance with such
limitations.
16. Successors.
When a successor assumes, in accordance with the Indenture, all the
obligations of its predecessor under the Notes and the Indenture, the
predecessor will be released from those obligations.
B-8
150
17. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount, of Notes then
outstanding may declare all the Notes to be due and payable in the manner, at
the time and with the effect provided in the Indenture. Holders of Notes may
not enforce the Indenture or the Notes except as provided in the Indenture.
The Trustee is not obligated to enforce the Indenture or the Notes unless it
has received indemnity satisfactory to it. The Indenture permits, subject to
certain limitations therein provided, Holders of a majority in aggregate
principal amount of the Notes then outstanding to direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of Notes
notice of any continuing Default or Event of Default (except a Default in
payment of principal or interest) if it determines that withholding notice is
in their interest.
18. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Notes and may otherwise deal with the
Company, its Subsidiaries or their respective Affiliates as if it were not the
Trustee.
19. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as such, of
the Company shall have any liability for any obligation of the Company under
the Notes or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a Note 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.
B-9
151
20. Authentication.
This Note shall not be valid until the Trustee or authenticating agent
manually signs the certificate of authentication on this Note.
21. Governing Law.
The Laws of the State of New York shall govern this Note and the
Indenture, without regard to principles of conflict of laws.
22 Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Note 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).
23 CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform Note
Identification Procedures, the Company will cause CUSIP numbers to be printed
on the Notes as a convenience to the Holders of the Notes. No representation
is made as to the accuracy of such numbers as printed on the Notes and reliance
may be placed only on the other identification numbers printed hereon.
24 Indenture.
Each Holder, by accepting a Note, agrees to be bound by all of the terms
and provisions of the Indenture, as the same may be amended from time to time.
The Company will furnish to any Holder of a Note upon written request and
without charge a copy of the Indenture, which has the text of this Note in
larger type. Requests may be made to: XXXXXXX CONTAINER CORPORATION, 000 Xxxx
Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, Attn: Secretary.
B-10
152
[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
--------------------------------
--------------------------------------------------------------------------------
(please print or type name and address)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
--------------------------------------------------------------------------------
attorney to transfer the Note on the books of the Issuer with full power of
substitution in the premises.
Dated:
----------------------- ----------------------------------------------
NOTICE: The signature on this assignment
must correspond with the name as it appears
upon the face of the within Note in every
particular without alteration or enlargement
or any change whatsoever and be guaranteed by
the endorser's bank or broker.
B-11
153
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.15 or Section 4.16 of the Indenture, check the appropriate box:
Section 4.15 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state the
amount you elect to have purchased:
$
-------------------
Dated:
----------------------- ----------------------------------------------
NOTICE: The signature on this assignment
must correspond with the name as it appears
upon the face of the within Note in every
particular without alteration or enlargement
or any change whatsoever and be guaranteed by
the endorser's bank or broker.
B-12
154
Exhibit C
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
___________, ____
Chase Bank of Texas, National Association
000 Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Corporate Trust Administration
Re: Xxxxxxx Container Corporation
9 7/8% Senior Subordinated Notes due 2008
Ladies and Gentlemen:
In connection with our proposed purchase of 9 7/8% Senior Subordinated
Notes due 2008 (the "Notes") of Xxxxxxx Container Corporation (the "Company"),
we confirm that:
1. We have received a copy of the Offering Memorandum (the "Offering
Memorandum") dated February 13, 1998 relating to the Notes and such other
information as we deem necessary in order to make our investment decision. We
acknowledge that we have read and agreed to the matters stated on pages
(i)-(ii) of the Offering Memorandum and in the section entitled "Transfer
Restrictions" of the Offering Memorandum, including the restrictions on
duplication and circulation of the Offering Memorandum.
2. We understand that any subsequent transfer of the Notes is subject to
certain restrictions and conditions set forth in the Indenture relating to the
Notes (as described in the Offering Memorandum) and the undersigned agrees to
be bound by, and not to resell, pledge or otherwise transfer the Notes
C-1
155
except in compliance with, such restrictions and conditions and the Securities
Act of 1933, as amended (the "Securities Act").
3. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes may not be offered or
sold except as permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell or otherwise transfer any Notes prior to the
date which is two years after the original issuance of the Notes, we will do so
only (i) to the Company or any of its subsidiaries, (ii) inside the United
States in accordance with Rule 144A under the Securities Act to a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act), (iii)
inside the United States to an institutional "accredited investor" (as defined
below) that, prior to such transfer, furnishes (or has furnished on its behalf
by a U.S. broker-dealer) to the Trustee (as defined in the Indenture relating
to the Notes), a signed letter containing certain representations and
agreements relating to the restrictions on transfer of the Notes, (iv) outside
the United States in accordance with Rule 904 of Regulation S under the
Securities Act, (v) pursuant to the exemption from registration provided by
Rule 144 under the Securities Act (if available), or (vi) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any person purchasing any of the Notes from us a notice advising
such purchaser that resales of the Notes are restricted as stated herein.
4. We are not acquiring the Notes for or on behalf of, and will not
transfer the Notes to, any pension or welfare plan (as defined in Section 3 of
the Employee Retirement Income Security Act of 1974), except as permitted in
the section entitled "Transfer Restrictions" of the Offering Memorandum.
5. We understand that, on any proposed resale of any Notes, we will be
required to furnish to the Trustee and the Company such certification, legal
opinions and other information as the Trustee and the Company may reasonably
require to confirm that the proposed sale complies with the foregoing
C-2
156
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
6. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and 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 their investment, as the case may be.
7. We are acquiring the Notes purchased by us for our 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 proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
By:
---------------------
Name:
Title:
C-3
157
Exhibit D
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S_____
______________, ____
Attention:
Re: Xxxxxxx Container Corporation (the "Company")
9 7/8% % Senior Subordinated Notes due 2008
(the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $___________ aggregate principal
amount of the Notes, we confirm that such sale has been effected pursuant to
and in accordance with Regulation S under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United States;
(2) either (a) at the time the buy offer was originated, the transferee
was outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States, or (b)
the transaction was executed in, on or through the facilities of a designated
off-shore securities market and neither we nor any person acting on our
behalf knows that the transaction has been pre-arranged with a buyer in the
United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation
S, as applicable;
D-1
158
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Notes.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate
have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
-----------------------
Authorized Signature
D-2
159
Exhibit E
SUBSIDIARY GUARANTEE
The undersigned hereby unconditionally guarantees on a senior unsecured
basis to the Holder of this Note the payments of principal of and interest on
this Notes in the amounts and at the time when due and interest on the overdue
principal and interest, if any, of this Note, if lawful, and the payment or
performance of all other obligations of the Company under the Indenture or the
Notes, to the Holder of this Note and the Trustee, all in accordance with and
subject to the terms and limitations of this Note, Article Eleven of the
Indenture and this Subsidiary Guarantee. This Subsidiary Guarantee will become
effective in accordance with Article Eleven of the Indenture and its terms
shall be evidenced therein. The validity and enforceability of any Subsidiary
Guarantee shall not be affected by the fact that it is not affixed to any
particular Note.
The obligations of the undersigned to the Holders of Notes and to the
Trustee pursuant to this Subsidiary Guarantee and the Indenture are expressly
set forth in Article Eleven of the Indenture and reference is hereby made to
the Indenture for the precise terms of this Subsidiary Guarantee and all of the
other provisions of the Indenture to which this Subsidiary Guarantee relates.
The internal laws of the State of New York shall govern this Subsidiary
Guarantee without regard to principles of conflict of laws.
[ ]
By:
------------------------
Name:
Title:
By:
------------------------
Name:
Title:
E-1
