1
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Xxxxxxxxx Group, Inc.,
Issuer
and
The Bank of New York,
Trustee
------------------
INDENTURE
Dated as of August 18, 1997
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$100,000,000
7 1/2% Senior Notes due 2007
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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)........................................................ 7.10
(b)........................................................... 7.08;
7.10
12.02;
(c)........................................................... N.A.
311(a)............................................................ 7.11
(b)........................................................... 7.11
(c)........................................................... N.A.
312(a)............................................................ 2.05
(b)........................................................... 12.03
(c)........................................................... 12.03
313(a)............................................................ 7.06
(b)(1)........................................................ N.A.
(b)(2)........................................................ 7.06;
(c)........................................................... 7.06;
12.02
(d)........................................................... 7.06
314(a)............................................................ 4.08;
12.02
(b)........................................................... N.A.
(c)(1)........................................................ 2.02;
7.02;
12.04;
(c)(2)........................................................ 7.02;
12.04
(c)(3)........................................................ N.A.
(d)........................................................... N.A.
(e)........................................................... 12.05
(f)........................................................... N.A.
315(a)............................................................ 7.01(b)
(b)........................................................... 7.05;
7.06;
12.02
(c)........................................................... 7.01(a)
(d)........................................................... 2.08;
6.12;
7.01(c)
(e)........................................................... 6.13
316(a)(last sentence)............................................. 2.09
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TIA Indenture
Section Section
------- ----------
(a)(1)(A)..................................................... 6.11
(a)(1)(B)..................................................... 6.12
(a)(2)........................................................ N.A.
(b)........................................................... 6.13;
6.08
316(c)........................................................... 1.01
317(a)(1)......................................................... 6.03
(a)(2)........................................................ 6.04
(b)........................................................... 2.04
318(a)............................................................ 12.01
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N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
Page
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ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE................................................................. 1
SECTION 1.01 Definitions................................................................................ 1
SECTION 1.02 Incorporation by Reference of TIA.......................................................... 11
SECTION 1.03 Rules of Construction...................................................................... 12
ARTICLE II.
THE SECURITIES............................................................................................. 13
SECTION 2.01 Forms and Dating........................................................................... 13
SECTION 2.02 Execution and Authentication............................................................... 14
SECTION 2.03 Registrar, Paying Agent.................................................................... 15
SECTION 2.04 Paying Agent to Hold Assets in Trust....................................................... 15
SECTION 2.05 Securityholder Lists....................................................................... 16
SECTION 2.06 Transfer and Exchange...................................................................... 16
SECTION 2.07 Replacement Securities..................................................................... 26
SECTION 2.08 Outstanding Securities..................................................................... 26
SECTION 2.09 Treasury Securities........................................................................ 27
SECTION 2.10. Temporary Securities....................................................................... 27
SECTION 2.11. Cancellation............................................................................... 27
SECTION 2.12. Defaulted Interest......................................................................... 28
SECTION 2.13. CUSIP Numbers.............................................................................. 28
ARTICLE III.
[INTENTIONALLY OMITTED].................................................................................... 28
ARTICLE IV.
COVENANTS.................................................................................................. 28
SECTION 4.01. Payment of Securities...................................................................... 28
SECTION 4.02. Maintenance of Office or Agency............................................................ 29
SECTION 4.03. Corporate Existence........................................................................ 29
SECTION 4.04. Payment of Taxes and Other Claims.......................................................... 30
SECTION 4.05. Compliance Certificate; Notice of Default.................................................. 30
SECTION 4.06. SEC Reports................................................................................ 31
SECTION 4.07. Waiver of Stay, Extension or Usury Laws.................................................... 32
SECTION 4.08. Limitation on Transactions with Affiliates.................................................
SECTION 4.09. Limitation on Liens........................................................................ 33
SECTION 4.10. Delivery of Certain Information............................................................ 33
ARTICLE V.
SUCCESSOR CORPORATION...................................................................................... 34
SECTION 5.01. When Company May Merge, Etc................................................................ 34
SECTION 5.02. Successor Corporation Substituted.......................................................... 35
ARTICLE VI.
EVENTS OF DEFAULT AND REMEDIES............................................................................. 35
SECTION 6.01. Events of Default.......................................................................... 35
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SECTION 6.02. Acceleration of Maturity Date; Rescission and Annulment.................................... 37
SECTION 6.03. Collection of Indebtedness and Suits for Enforcement by Trustee............................ 38
SECTION 6.04. Trustee May File Proofs of Claim........................................................... 39
SECTION 6.05. Trustee May Enforce Claims Without Possession of Securities................................ 40
SECTION 6.06. Priorities................................................................................. 41
SECTION 6.07. Limitation on Suits........................................................................ 41
SECTION 6.08. Unconditional Right of Holders to Receive Principal, Premium and Interest.................. 42
SECTION 6.09. Rights and Remedies Cumulative............................................................. 42
SECTION 6.10. Delay or Omission Not Waiver............................................................... 43
SECTION 6.11. Control by Holders......................................................................... 43
SECTION 6.12. Waiver of Past Default..................................................................... 43
SECTION 6.13. Undertaking for Costs...................................................................... 44
SECTION 6.14. Restoration of Rights and Remedies......................................................... 44
ARTICLE VII.
TRUSTEE.................................................................................................... 45
SECTION 7.01. Duties of Trustee.......................................................................... 45
SECTION 7.02. Rights of Trustee.......................................................................... 46
SECTION 7.03. Individual Rights of Trustee............................................................... 47
SECTION 7.04. Trustee's Disclaimer....................................................................... 47
SECTION 7.05. Notice of Default.......................................................................... 48
SECTION 7.06. Reports by Trustee to Holders.............................................................. 48
SECTION 7.07. Compensation and Indemnity................................................................. 48
SECTION 7.08. Replacement of Trustee..................................................................... 50
SECTION 7.09. Successor Trustee by Merger, Etc........................................................... 51
SECTION 7.10. Eligibility; Disqualification.............................................................. 51
SECTION 7.11. Preferential Collection of Claims.......................................................... 51
ARTICLE VIII.
SATISFACTION AND DISCHARGE................................................................................. 52
SECTION 8.01. Satisfaction, Discharge of the Indenture and Defeasance of the Securities.................. 52
SECTION 8.02. Termination of Obligations Upon Cancellation of the Securities............................. 53
SECTION 8.03. Survival of Certain Obligations............................................................ 54
SECTION 8.04. Acknowledgment of Discharge by Trustee..................................................... 54
SECTION 8.05. Application of Trust Assets................................................................ 55
SECTION 8.06. Repayment to the Company................................................................... 55
SECTION 8.07. Reinstatement.............................................................................. 56
ARTICLE IX.
AMENDMENTS, SUPPLEMENTS AND WAIVERS........................................................................ 56
SECTION 9.01. Supplemental Indentures Without Consent of Holders......................................... 56
SECTION 9.02. Amendments, Supplemental Indentures and Waivers with Consent of Holders.................... 57
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SECTION 9.03. Compliance with TIA........................................................................ 59
SECTION 9.04. Revocation and Effect of Consents.......................................................... 59
SECTION 9.05. Notation on or Exchange of Securities...................................................... 60
SECTION 9.06. Trustee to Sign Amendments, Etc............................................................ 60
ARTICLE X.
MEETINGS OF SECURITYHOLDERS................................................................................ 60
SECTION 10.01. Purposes for Which Meetings May Be Called.................................................. 60
SECTION 10.02. Manner of Calling Meetings................................................................. 61
SECTION 10.03. Call of Meetings by Company or Holders..................................................... 62
SECTION 10.04. Who May Attend and Vote at Meetings........................................................ 62
SECTION 10.05. Regulations May Be Made by Trustee; Conduct of the Meeting; Voting Rights; Adjournment..... 62
SECTION 10.06. Voting at the Meeting and Record to Be Kept................................................ 63
SECTION 10.07. Exercise of Rights of Trustee or Securityholders May Not Be Hindered
or Delayed by Call of Meeting.............................................................. 64
ARTICLE XI.
RIGHT TO REQUIRE REPURCHASE...................................................................................... 65
SECTION 11.01 Repurchase of Securities at Option of the Holder Upon Change of Control.................... 65
SECTION 11.02 Repurchase of Securities at Option of the Holder Upon Prohibited Restricted Payment........ 67
ARTICLE XII.
MISCELLANEOUS.................................................................................................... 70
SECTION 12.01. TIA Controls............................................................................... 70
SECTION 12.02. Notices.................................................................................... 70
SECTION 12.03. Communications by Holders with Other Holders............................................... 71
SECTION 12.04. Certificate and Opinion as to Conditions Precedent......................................... 71
SECTION 12.05. Statements Required in Certificate or Opinion.............................................. 72
SECTION 12.06. Rules by Trustee, Paying Agent, Registrar.................................................. 72
SECTION 12.07. Legal Holidays............................................................................. 73
SECTION 12.08. Governing Law.............................................................................. 73
SECTION 12.09. No Adverse Interpretation of Other Agreements.............................................. 73
SECTION 12.10. No Recourse against Others................................................................. 74
SECTION 12.11. Successors................................................................................. 74
SECTION 12.12. Duplicate Originals........................................................................ 74
SECTION 12.13. Severability............................................................................... 74
SECTION 12.14. Table of Contents, Headings, Etc........................................................... 74
Exhibit A........................................................................................................ 1
EXHIBIT B........................................................................................................ 1
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Form of Note............................................................................................ Exhibit A
Certificate to be Delivered Upon Exchange
or Registration of Transfer of Notes.............................................................. Exhibit B
Transferee Letter of Representations ................................................................... Exhibit C
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S ......................................................................... Exhibit D
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INDENTURE
INDENTURE, dated as of ___________, 1997, between Xxxxxxxxx Group,
Inc., a Delaware corporation (the "Company"), and The Bank of New York, a New
York banking corporation, as Trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of each other
party and for the equal and ratable benefit of the Holders of the Company's 7
1/2% Senior Notes due 2007:
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, that with respect to the Company,
"Affiliate" shall not mean any Affiliate of ITG, Inc. if such Affiliate is not
otherwise an Affiliate of the Company. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise.
"Affiliate Transaction" shall have the meaning specified in Section 4.08.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"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 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 of such person.
"Business Day" means a day that is not a Legal Holiday.
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"Capital Lease Obligation" means, at any time any determination thereof is
made, the amount of the liability in respect of a capital lease that would at
such time be so required to be capitalized on the balance sheet in accordance
with GAAP.
"Capital Stock" means any and all shares, interests, participations,
rights or the equivalents (however designated) of corporate stock, including,
without limitation, partnership interests.
"Certificated Notes" has the meaning assigned to such term in Section
2.01.
"Change of Control" means any "person" or "group" (as such terms are used
for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not
applicable) becomes the "beneficial owner" (as the term is used in Rules 13d-3
and 13d-5 under the Exchange Act, whether or not applicable, except that a
person shall be deemed to have "beneficial ownership" of all shares that any
such person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more
than 50% of the total voting power entitled to vote in the election of directors
of the Company if as a result, and within 60 days, of such person or group
becoming the beneficial owner of such voting power, the Notes do not have the
Required Rating; provided, however, that a Change of Control shall not be deemed
to have occurred (a) as a result of the formation of such a "group" or the
acquisition of shares of Capital Stock of the Company by such group if such
group includes existing Affiliates and/or persons who beneficially own in the
aggregate, as of the date of the Indenture, 20% or more of the outstanding
shares of Capital Stock of the Company on the date of the Indenture or (b) by
virtue of the Company, any Subsidiary, any employee stock ownership plan or any
other employee benefit plan of the Company or any Subsidiary, or any other
person holding Capital Stock of the Company for or pursuant to the terms of any
such employee benefit plan, becoming a beneficial owner, directly or indirectly,
of more than 50% of the total voting power entitled to vote in the election of
directors of the Company.
"Change of Control Notice" shall have the meaning specified in Section
11.01.
"Change of Control Offer" shall have the meaning specified in Section
11.01.
"Change of Control Payment Date" shall have the meaning specified in
Section 11.01.
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"Change of Control Purchase Price" shall have the meaning specified in
Section 11.01.
"Change of Control Put Date" shall have the meaning specified in Section
11.01.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to the Indenture and thereafter means such
successor.
"Consolidated Net Worth" means, with respect to any Person as of any date,
the sum of (i) the consolidated equity of the common stockholders of such Person
and its Consolidated Subsidiaries as of such date plus (ii) the respective
amounts reported on such Person's balance sheet as of such date with respect to
any series of preferred stock (other than Disqualified Stock) that by its terms
is not entitled to the payment of dividends unless such dividends may be
declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by such
Person upon issuance of such preferred stock.
"Consolidated Net Worth Ratio" means, with respect to any Person as of the
date of calculation, the ratio of (i) the Long-Term Indebtedness of such person
and its Consolidated Subsidiaries as of such date to (ii) Consolidated Net Worth
of such person as of such date.
"Consolidated Subsidiary" means, for any person, each Subsidiary of such
person (whether now existing or hereafter created or acquired) the financial
statements of which shall be (or should have been) consolidated for financial
statement reporting purposes with the financial statements of such person in
accordance with GAAP.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event that is or with the passage of time or the
giving of notice both would be an Event of Default.
"Depository" means The Depository Trust Company, its
nominees and successors.
"Disqualified Stock" means any Capital Stock which by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable
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at the option of the Holder thereof, in whole or in part, on or prior to the
final date of maturity of the Notes.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Event of Default" shall have the meaning specified 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 Offer" has the meaning ascribed to such term in the Registration
Rights Agreement.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Standards Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession, which are in
effect on the date of this Indenture.
"Global Note" shall have the meaning assigned to such term in Section
2.01.
"Guaranty" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Hedging Obligations" means, with respect to any Person, the Obligations
of such Person under interest rate swap agreements, interest rate cap
agreements, and interest rate collar agreements, and other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates.
"Holder" or "Securityholder" means the person in whose name a Security is
registered on the Registrar's books.
"incur" shall have the meaning specified in Section 4.09.
"Indebtedness" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures of similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or representing Capital Lease
Obligations or the balance deferred and unpaid of
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the purchase price of any property or representing any Hedging Obligations,
except any such balance that constitutes an accrued expense or trade payable, if
and to the extent any of the foregoing indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance sheet
of such Person prepared in accordance with GAAP, and also includes, to the
extent not otherwise included, the Guaranty of any indebtedness of such Person
or any other Person.
"Indenture" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof.
"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 due date of an
installment of interest on the Securities.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in forms of loans (including a
Guaranty), advances or capital contributions (excluding commission, travel and
similar advances to officers and employees made in the ordinary course of
business), purchases or other acquisitions for consideration of indebtedness,
Equity Interests or other securities and all other items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
"Issue Date" means the date of first issuance of the Securities under this
Indenture.
"Legal Holiday" shall have the meaning provided in Section 12.07.
"Legend" means the legend initially set forth on the Notes in the form set
forth in Section 2.06.
"Lien" means any mortgage, lien, pledge, charge, security interest, or
other encumbrance of any kind, whether or not filed, recorded or otherwise
perfected under applicable law.
"Long-Term Indebtedness" means, with respect to a Person as of any date,
the aggregate amount of Indebtedness which is characterized as long-term
indebtedness of such Person in accordance with GAAP.
"Material Subsidiary" means (i) any Subsidiary of the Company which at
June 27, 1997, was a Significant Subsidiary or any successor to such Subsidiary
and (ii) any other Subsidiary of the Company or any of its Subsidiaries if the
Company's or any of
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its Subsidiaries' Investments in such Subsidiary at the date of determination
thereof, represent 20% or more of the Company's Consolidated Net Worth as of
such date; provided, however, that clause (ii) shall not include any Subsidiary
if, at the time that it became a Subsidiary, the Company contemplated commencing
a voluntary case or proceeding under the Bankruptcy Law with respect to such
Subsidiary.
"Maturity Date" when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity, Change of Control Payment Date,
Section 11.02 Payment Date or by declaration of acceleration or otherwise.
"Minimum Net Capital Amount" means, as of any date, the product of (i) the
minimum Net Capital required by Rule 15c3-1 under the Exchange Act and (ii)
150%.
"Net Capital" shall have the meaning set forth in Rule 15c3- 1 under the
Exchange Act.
"Non-U.S. Person" means a person who is not a U.S. person, as defined in
Regulation S.
"Notes" or "Securities" means, prior to the Exchange Offer, the Original
Notes and, after the Exchange Offer, the Original Notes (if any) and the Series
B Notes, in each case, as amended or modified from time to time in accordance
with the terms hereof, issued under this Indenture.
"Obligations" means any principal, premium, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means, with respect to the Company, the Chairman of the Board,
the President, any Vice President, the Chief Financial Officer, the Treasurer,
the Controller, or the Secretary of the Company.
"Officers' Certificate" means, with respect to the Company, a certificate
signed by two Officers or by an Officer and an Assistant Secretary of the
Company and otherwise complying with the requirements of Sections 12.04 and
12.05.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee complying with the requirements of Sections
12.04 and 12.05. Unless otherwise required by the Trustee, the counsel may be
inside counsel to the Company.
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"Original Notes" means the 7 1/2% Senior Notes due 2007, as amended and
supplemented from time to time in accordance with the terms hereof, that are
issued pursuant to this Indenture.
"Paying Agent" shall have the meaning specified in Section 2.03.
"Permitted Liens" means (a) Liens in favor of the Company; (b) Liens on
any shares of Voting Stock of any corporation existing at the time such
corporation becomes a Material Subsidiary of the Company (and any extensions,
renewals or replacements thereof); (c) Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
Obligations of a like nature incurred in the ordinary course of business; and
(d) Liens for taxes, assessments or governmental charges or claims that are not
yet delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently concluded, provided, that any
reserve or appropriate provision as shall be required in conformity with GAAP
shall have been made therefor.
"Person or person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof.
"principal" of any Indebtedness (including the Securities) means the
principal of such Indebtedness plus any applicable premium, if any, on such
Indebtedness.
"property" means any right or interest in or to property or assets of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Prohibited Restricted Payment" means a Restricted Payment made (x) if the
Company's senior unsecured debt does not have the Required Rating, and (y) if
after giving effect to the Restricted Payment, the Consolidated Net Worth Ratio
would be greater than 2.00 to one.
"Prohibited Restricted Payment Notice" shall have the meaning specified in
Section 11.02.
"Prohibited Restricted Payment Offer" shall have the meaning specified in
Section 11.02.
"Prohibited Restricted Payment Purchase Price" shall have the meaning
specified in Section 11.02.
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"Prohibited Restricted Payment Put Date" shall have the meaning specified
in Section 11.02.
"Purchase Agreement" means each of the Purchase Agreements by and between
the Company and the Purchasers, dated as of the date hereof, providing for the
several purchases of the Securities.
"Purchasers" means the Purchasers named on the execution pages attached to
the Purchase Agreement.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Record Date" means a Record Date specified in the Securities whether or
not such Record Date is a Business Day.
"Registrar" shall have the meaning specified in Section 2.03.
"Registration Rights Agreement" means the Registration Rights Agreement by
and among the Company and the Purchasers, dated as of the date hereof.
"Regulation S" means Regulation S under the Securities Act.
"Required Rating" means a rating of the Notes by Standard & Poor's of BBB-
or higher.
"Restricted Payment" means either of the following acts of the Company:
(i) a direct or indirect declaration or payment of any dividends or the
making of any distribution on the Company's Capital Stock or to the holders of
its Capital Stock (other than dividends or distributions payable in the
Company's Common Stock or its shares of Capital Stock of the same class held by
such holders or in options, warrants or other rights to purchase the Company's
Common Stock or such Capital Stock); or
(ii) the direct or indirect purchase, redemption or other acquisition or
retirement for value, or the Company's permitting any Subsidiary of the Company
to, directly or indirectly, purchase, redeem or otherwise acquire for value, any
such Capital Stock (other than in exchange for the Company's Common Stock or
options, warrants or other rights to purchase the Company's Common Stock or such
Capital Stock).
"Restricted Security" means a Security, unless or until it has been (i)
effectively registered under the Securities Act and disposed of in accordance
with the registration statement covering it, (ii) distributed to the public
pursuant to Rule 144
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(or any similar provision then in force) under the Securities Act and (iii)
exchanged for a Series B Note pursuant to the Registration Rights Agreement.
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Section 11.02 Payment Date" shall have the meaning specified in Section
11.02.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Series B Notes" means the Series B 7 1/2% Senior Notes due 2007 to be
issued pursuant to this Indenture in connection with the offer to exchange such
Series B 7 1/2% Senior Notes due 2007 for Original Notes that may be made by the
Company pursuant to the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a "significant
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Act, as such Regulation is in effect on the date hereof.
"Stated Maturity" when used with respect to any Security, means August 15,
2007.
"Subsidiary" means any corporation, association or other business entity
of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by any Person or one or more of the other
Subsidiaries of that Person or a combination thereof.
"Surviving Person" shall have the meaning specified in Section 5.01.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of the execution of this Indenture,
except as provided in Section 9.03.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means any officer within the corporate trust department
(or any successor group) of the Trustee including any
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vice president, assistant vice president, secretary, assistant secretary or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at that time shall be
such officers, and also means, with respect to a particular corporate trust
matter, any other officer of the corporate trust department (or any successor
group) of the Trustee to whom such trust matter is referred because of his
knowledge of and familiarity with the particular subject.
"U.S. Government Obligations" means direct noncallable obligations of, or
noncallable obligations guaranteed by, the United States of America for the
payment of which obligation or guarantee the full faith and credit of the United
States of America is pledged.
"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.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not at the time stock of
any other class or classes shall have or might have voting power by reason of
the happening of any contingency).
"W&D" means W & D Securities, Inc., a Delaware corporation.
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 Securities.
"indenture securityholder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any other
obligor on the Securities.
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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 thereby.
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;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions;
(6) "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; and
(7) references to Sections or Articles means reference to such
Section or Article in this Indenture, unless stated otherwise.
ARTICLE II.
THE SECURITIES
SECTION 2.01 Forms and Dating.
The Securities and the Trustee's certificate of authentication, in respect
thereof, shall be substantially in the form of Exhibit A hereto, which is part
of this Indenture. The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage. The Company shall approve the
form of the Securities and any notation, legend or endorsement on them. Any such
notations, legends or endorsements not contained in the form of Security
attached as Exhibit A hereto shall be delivered in writing to the Trustee. Each
Security shall be dated the date of its authentication.
The terms and provisions contained in the form of Securities 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,
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expressly agree to such terms and provisions and to be bound thereby.
Certain of the Notes offered and sold in reliance on Rule 144A shall be
issued in the form of one or more permanent global Notes (the "Global Note") in
registered form, substantially in the form set forth in Exhibit A attached
hereto (including footnotes 1 and 2), deposited with the Trustee, as custodian
for the Depository, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. 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 reliance on any exemption from registration
under the Securities Act other than as described in the preceding paragraph
shall be issued, and Notes offered and sold in reliance on Rule 144A may be
issued, in the form of permanent certificated Notes (the "Certificated Notes")
in registered form in substantially the form set forth in Exhibit A attached
hereto (excluding certain language in accordance with footnotes 1 and 2). Notes
offered and sold in offshore transactions in reliance on Regulation S shall be
issued in the form of Certificated Notes in registered form in substantially the
form set forth in Exhibit A.
SECTION 2.02 Execution and Authentication.
Two Officers shall sign, or one Officer shall sign and one Officer shall
attest to, the Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security was an Officer at the time
of such execution but no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless and the
Company shall nevertheless be bound by the terms of the Securities and this
Indenture.
A Security shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Security, but such
signature shall be conclusive evidence that the Security has been authenticated
pursuant to the terms of this Indenture.
The Trustee shall authenticate Securities for original issue in the
aggregate principal amount of up to $100,000,000 upon a written order of the
Company. Such order shall specify the amount of Securities to be authenticated
and the date on which the Securities are to be authenticated. The aggregate
principal amount of Securities outstanding at any time may not exceed
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$100,000,000 except as provided in Section 2.07. Upon the written order of the
Company, the Trustee shall authenticate Securities in substitution of Securities
originally issued to reflect any name change of the Company.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. Unless otherwise provided in the appointment, an
authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Company, any Affiliate of the Company or any of their
respective Subsidiaries.
Securities shall be issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof.
SECTION 2.03 Registrar, Paying Agent and Depository.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where Securities may be presented for
registration of transfer or for exchange ("Registrar") and an office or agency
in the Borough of Manhattan, The City of New York, where Securities may be
presented for payment ("Paying Agent") and an office or agency where notices and
demands to or upon the Company in respect of the Securities may be served. The
Company may act as its own Registrar or Paying Agent, except that, for the
purposes of Articles Eight and Eleven, neither the Company nor any Affiliate of
the Company shall act as Paying Agent. The Registrar shall keep a register of
the Securities and of their transfer and exchange. The Company may have one or
more co-Registrars and one or more additional Paying Agents. The term "Paying
Agent" includes any additional Paying Agent. The Company hereby initially
appoints the Trustee as Registrar and Paying Agent,and the Trustee hereby
initially agrees so to act.
The Company shall enter into an appropriate written 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
promptly notify the Trustee in writing 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.
The Company initially appoints The Depository Trust Company to act as
Depository with respect to the Global Notes.
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SECTION 2.04 Paying Agent to Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that each Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all assets held by the Paying Agent for the payment of
principal of, or interest on, the Securities (whether such assets have been
distributed to it by the Company or any other obligor on the Securities), and
shall notify the Trustee in writing of any Default by the Company (or any other
obligor on the Securities) 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 for the benefit of the Holders or the
Trustee. The Company at any time may require a Paying Agent to distribute all
assets held by it to the Trustee and account for any assets disbursed and the
Trustee may at any time during the continuance of any payment Default, upon
written request to a Paying Agent, require such Paying Agent to distribute all
assets held by it to the Trustee and to account for any assets distributed. Upon
distribution to the Trustee of all assets that shall have been delivered by the
Company to the Paying Agent, the Paying Agent (if other than the Company) shall
have no further liability for such assets.
SECTION 2.05 Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee on or before the third Business Day preceding each Interest Payment Date
and at such other times as the Trustee may request in writing a list in such
form and as of such date as the Trustee reasonably may require of the names and
addresses of Holders.
SECTION 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Certificated Notes. When Certificated Notes
are presented by a Holder to the Registrar with a request:
(x) to register the transfer of the Certificated Notes; or
(y) to exchange such Certificated Notes for an equal principal
amount of Certificated Notes of other authorized
denominations,
the Registrar shall register the transfer to make the exchange as requested if
its requirements for such transactions are met;
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provided, however, that the Certificated Notes presented or surrendered for
register of transfer or exchange:
(i) shall be duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such
Holder or by his attorney, duly authorized in writing; and
(ii) in the case of a Certificated Note that is a Restricted Security,
such request shall be accompanied by the following additional
information and documents, as applicable:
(A) if such Restricted Security is being delivered to the
Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification to that effect from
such Holder (in substantially the form of Exhibit B hereto);
or
(B) if such Restricted Security is being transferred to a
"qualified institutional buyer" (as defined in Rule 144A under
the Securities Act) in accordance with Rule 144A under the
Securities Act or pursuant to an exemption from registration
in accordance with Rule 144 or Rule 904 under the Securities
Act or pursuant to an effective registration statement under
the Securities Act, a certification to that effect from such
Holder (in substantially the form of Exhibit B hereto) (and,
if the Company so requests, an Opinion of Counsel from such
Holder or the transferee reasonably acceptable to the Company
to the effect that such transfer pursuant to Rule 144 is in
compliance with the Securities Act); or
(C) if such Restricted Security is being transferred in reliance
on another exemption from the registration requirements of the
Securities Act, a certification to that effect from such
Holder (in substantially the form of Exhibit B hereto) and an
Opinion of Counsel from such Holder or the transferee
reasonably acceptable to the Company to the effect that such
transfer is in compliance with the Securities Act.
(b) Transfer of a Certificated Note for a Beneficial Interest in a Global
Note. A Certificated Note may not be exchanged for a beneficial interest in a
Global Note except upon satisfaction of the requirements set forth below. Upon
receipt by the Trustee of a Certificated Note, duly endorsed or
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accompanied by appropriate instruments of transfer, in form satisfactory to the
Trustee, together with:
(i) if such Certificated Note is a Restricted Security, a
certification from the Holder thereof (in substantially the
form of Exhibit B hereto) to the effect that such Certificated
Note is being transferred by such Holder to a "qualified
institutional buyer" (as defined in Rule 144A under the
Securities Act) in accordance with Rule 144A under the
Securities Act; and
(ii) whether or not such Certificated Note is a Restricted
Security, written instructions from the Holder thereof
directing the Trustee to make an endorsement on the Global
Note to reflect an increase in the aggregate principal amount
of the Notes represented by the Global Note;
in which case the Trustee shall cancel such Certificated Note and cause, in
accordance with the standing instructions and procedures existing between the
Depository and the Trustee, the aggregate principal amount of Notes represented
by the Global Note to be increased accordingly. If no Global Notes are then
outstanding, the Company shall issue and, upon receipt of an authentication
order in accordance with Section 2.02 hereof, the Trustee shall authenticate a
new Global Note in the appropriate principal amount.
(c) Transfer and Exchange of Global Notes. The transfer and exchange of
Global Notes or beneficial interests therein shall be effected through the
Depository, in accordance with this Indenture and the procedures of the
Depository therefor, which shall include restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act.
(d) Transfer of a Beneficial Interest in a Global Note for a Certificated
Note.
(i) Any Person having a beneficial interest in a Global Note may
upon request exchange such beneficial interest for a
Certificated Note. Upon receipt by the Trustee of written
instructions, or such other form of instructions as is
customary for the Depository, from the Depository or its
nominee on behalf of any Person having a beneficial interest
in a Global Note, and, in the case of a Restricted Security,
the following additional information and documents (all of
which may be submitted by facsimile):
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(A) if such beneficial interest is being transferred to the Person
designated by the Depository as being the beneficial owner, a
certification to that effect from such Person (in
substantially the form of Exhibit B hereto); or
(B) if such beneficial interest is being transferred to a
"qualified institutional buyer" (as defined in Rule 144A under
the Securities Act) in accordance with Rule 144A under the
Securities Act or pursuant to an exemption from registration
in accordance with Rule 144 or Rule 904 under the Securities
Act or pursuant to an effective registration statement under
the Securities Act, a certification to that effect from the
transferor (in substantially the form of Exhibit B hereto)
(and, if the Company so requests, an Opinion of Counsel from
such Holder or the transferee reasonably acceptable to the
Company to the effect that such transfer pursuant to Rule 144
is in compliance with the Securities Act); or
(C) if such beneficial interest is being transferred in reliance
on another exemption from the registration requirements of the
Securities Act, a certification to that effect from the
transferor (in substantially the form of Exhibit B hereto) and
an Opinion of Counsel from the transferee or transferor
reasonably acceptable to the Company to the effect that such
transfer is in compliance with the Securities Act,
in which case the Trustee shall, in accordance with the standing
instructions and procedures existing between the Depository and the Trustee,
cause the aggregate principal amount of Global Notes to be reduced accordingly
and, following such reduction, the Company shall execute and, upon receipt of an
authentication order in accordance with Section 2.02 hereof, the Trustee shall
authenticate and deliver to the transferee a Certificated Note in the
appropriate principal amount.
(ii) Certificated Notes issued in exchange for a beneficial
interest in a Global Note pursuant to this Section 2.06(d)
shall be registered in such names and in such authorized
denominations as the Depository, pursuant to instructions from
its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such
Certificated Notes to the Persons in whose names such Notes
are so registered.
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(e) Restrictions on Transfer and Exchange of Global Notes. Notwithstanding
any other provision of this Indenture (other than the provisions set forth in
subsection (f) of this Section 2.06), a Global Note may not be transferred
except as a whole (i) by the Depository to a nominee of the Depository or (ii)
by a nominee of the Depository to the Depository or another nominee of the
Depository or (iii) by the Depository or any such nominee to a successor
Depository or a nominee of such successor Depository.
(f) Authentication of Notes in Absence of Depository. If at any time:
(i) the Depository for the Global Notes notifies the Company that
the Depository is unwilling or unable to continue as
Depository for the Global Notes and a successor Depository for
the Global Notes is not appointed by the Company within 90
days after delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of Certificated
Notes under this Indenture,
then the Company shall execute, and the Trustee, upon receipt of a written order
of the Company requesting the authentication and delivery of Certificated Notes,
shall authenticate and deliver, Certificated Notes in an aggregate principal
amount equal to the principal amount of the Global Notes in exchange for such
Global Notes.
(g) Legends.
(i) Except as permitted by the following paragraphs (ii) and (iii), each
Note certificate evidencing Global Notes and Certificated Notes (and
all Notes issued in exchange therefor or substitution thereof) shall
bear legends in substantially the following form:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM OR NOT
SUBJECT TO, REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
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WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF
THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) (THE "RESALE
RESTRICTION TERMINATION DATE") ONLY (A) TO THE COMPANY, (B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE
THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF SUBPARAGRAPH (A)(1), (A)(2), (A)(3) OR (A)(7) OF RULE
501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITIES FOR
ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D),
(E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO THE COMPANY
AND THE TRUSTEE.
(ii) Upon any sale or transfer of a Restricted Security (including any
Restricted Security represented by a Global Note) pursuant to Rule
144 under the Securities Act or pursuant to an effective
registration statement under the Securities Act:
(A) in the case of any Restricted Security that is a Certificated
Note, the Registrar shall permit the Holder thereof to
exchange (in accordance with Section 2.06(a)) such Restricted
Security for a Certificated Note that does not bear the legend
set forth in (i) above and rescind any restriction on the
transfer of such Restricted Security; and
(B) in the case of any Restricted Security represented by a Global
Note, such Restricted Security shall not be required to bear
the legend set forth in (i) above, but shall continue to be
subject to the provisions of Section 2.06(c) and (e) hereof;
provided, however, that with respect to any
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request for an exchange of a Restricted Security that is
represented by a Global Note for a Certificated Note that does
not bear the first legend set forth in (i) above, which
request is made in reliance upon Rule 144, such exchange shall
be made in accordance with Section 2.06(d) and the Holder
thereof shall certify in writing to the Registrar that such
request is being made pursuant to Rule 144 (such certification
to be substantially in the form of Exhibit B hereto).
(iii) Notwithstanding the foregoing, upon consummation of the
Exchange Offer, the Company shall issue and, upon receipt of
an authentication order in accordance with Section 2.02
hereof, the Trustee shall authenticate Series B Notes in
exchange for Original Notes accepted for exchange in the
Exchange Offer, which Series B Notes shall not bear the first
legend set forth in (i) above, and the Registrar shall rescind
any restriction on the transfer of such Notes, in each case
unless the Holder of such Original Notes is either (A) a
broker-dealer who purchased such Original Notes directly from
the Company to resell pursuant to Rule 144A or any other
available exemption under the Securities Act, (B) a person
participating in the distribution of the Original Notes or (C)
a person who is an affiliate (as defined in Rule 144A) of the
Company.
(h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in Global Notes have either been exchanged for Certificated
Notes or cancelled, all Global Notes shall be returned to or retained and
cancelled by the Trustee. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for Certificated Notes or
cancelled, the principal amount of Notes represented by such Global Note shall
be reduced accordingly and an endorsement shall be made on such Global Note, by
the Trustee or the Notes Custodian, at the direction of the Trustee, to reflect
such reduction.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate
Certificated Notes and Global Notes at the Registrar's
request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the
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Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer
pursuant to Sections 9.05, 11.01 and 11.02 hereto).
(iii) The Registrar shall not be required to register the transfer
of or to exchange a Note between a Record Date and the next
succeeding Interest Payment Date.
(iv) All Certificated Notes and Global Notes issued upon any
registration of transfer or exchange of Certificated Notes or
Global Notes shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Certificated Notes or Global
Notes surrendered upon such registration of transfer or
exchange.
(v) The Company shall not be required to register the transfer of
or to exchange a Note between a Record Date and the next
succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer
of any Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Note is registered as
the absolute owner of such Note for the purpose of receiving
payment of principal of and interest on such Notes, and
neither the Trustee, any Agent nor the Company shall be
affected by notice to the contrary.
(vii) The Trustee shall authenticate Certificated Notes and Global
Notes upon receipt of an Officers' Certificate instructing it
to do so.
(viii) Each Holder of a Security agrees to indemnify the Company and
the Trustee against any liability that may result from the
transfer, exchange or assignment of such Holder's Security in
violation of any provision of this Indenture and/or
applicable U.S. Federal or state securities law.
(ix) In the case of a transfer of Securities to an Institutional
Accredited Investor which is not a QIB, the proposed
transferee shall deliver to the Registrar a certificate
substantially in the form of Exhibit C hereto and in the case
of a transfer
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to a Non-U.S. Person pursuant to Regulation S, the proposed
transferor shall deliver to the Registrar a certificate
substantially in the form of Exhibit D hereto.
(j) Exchange of Original Notes for Series B Notes. The Original Notes may
be exchanged for Series B Notes pursuant to the terms of the Exchange Offer. The
Trustee and Registrar shall make the exchange as follows:
(i) the Company shall present the Trustee with an Officers' Certificate
certifying the following:
(A) upon issuance of the Series B Notes, the transactions
contemplated by the Exchange Offer have been consummated; and
(B) the principal amount at maturity of Original Notes properly
tendered in the Exchange Offer which are represented by a
Global Note and the principal amount at maturity of Original
Notes properly tendered in the Exchange Offer which are
represented by Certificated Notes (together with such
Certificated Notes), the name of each Holder of such
Certificated Notes, the principal amount at maturity properly
tendered in the Exchange Offer by each such Holder and the
name and address to which Certificated Notes for Series B
Notes shall be registered and sent for each such Holder.
(ii) The Trustee, upon receipt of such Officers' Certificate, an
Opinion of Counsel that the Series B Notes have been
registered under Section 5 of the Securities Act and the
Indenture has been qualified under the TIA, and a written
order of the Company, shall authenticate (A) a Global Note
for Series B Notes in principal amount at maturity equal to
the principal amount at maturity of Original Notes
represented by a Global Note indicated in such order as
having been properly tendered and (B) Certificated Notes
representing Series B Notes registered in the names of, and
in the principal amounts at maturity indicated in such order.
(iii) The Trustee shall exchange such Global Note for Series B
Notes and cancel the Global Note for the Original Notes
pursuant to Section 2.11, or if the principal amount at
maturity of the Global Note for the Series B Notes is less
than the principal amount at maturity of the Global Note for
the
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Original Notes, the Trustee shall make an endorsement on such
Global Note for Original Notes indicating a reduction in the
principal amount at maturity represented thereby.
(iv) The Trustee shall deliver Certificated Notes for Series B
Notes to the Holders thereof as indicated in the Officers'
Certificate described in clause (i) above.
SECTION 2.07 Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the Holder of
a Security claims and submits an affidavit or other evidence, satisfactory to
the Trustee, to the effect that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Security if the Trustee's requirements are met. If required by the
Trustee or the Company, such Holder must provide an indemnity bond or other
indemnity, sufficient in the judgment of both the Company and the Trustee, to
protect the Company, the Trustee or any Agent from any loss which any of them
may suffer if a Security is replaced. The Company may charge such Holder for its
reasonable, out-of-pocket expenses in replacing a Security.
Every replacement Security is an additional obligation of the Company.
SECTION 2.08 Outstanding Securities.
Securities outstanding at any time are all the Securities that have been
authenticated by the Trustee except those cancelled by it, those delivered to it
for cancellation and those described in this Section 2.08 as not outstanding. A
Security does not cease to be outstanding because the Company or an Affiliate of
the Company holds the Security, except as provided in Section 2.09.
If a Security is replaced pursuant to Section 2.07 (other than a mutilated
Security surrendered for replacement), it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by
a bona fide purchaser. A mutilated Security ceases to be outstanding upon
surrender of such Security and replacement thereof pursuant to Section 2.07.
If on the Maturity Date the Paying Agent (other than the Company or an
Affiliate 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 Securities
payable on that date and payment of the Securities is not otherwise prohibited,
then
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on and after that date such Securities cease to be outstanding and interest on
them ceases to accrue.
SECTION 2.09 Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, amendment, supplement, waiver or
consent, Securities owned by the Company and Affiliates of the Company shall be
disregarded, except that, for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, amendment, supplement,
waiver or consent, only Securities that the Trustee actually knows are so owned
shall be disregarded.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company reasonably and in good faith considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Securities in
exchange for temporary Securities. Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
permanent Securities authenticated and delivered hereunder.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent
(other than the Company or an Affiliate of the Company), and no one else, shall
cancel and, at the written direction of the Company, shall return all such
cancelled Securities to the Company. Subject to Section 2.07, the Company may
not issue new Securities to replace Securities it has paid or delivered to the
Trustee for cancellation. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section 2.11, except
as expressly permitted in the form of Securities and as permitted by this
Indenture.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest, plus (to the extent lawful) interest on the
defaulted interest, to the persons who are Holders on a subsequent Record Date
(or at its option on
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a subsequent special record date), which date shall be the fifteenth day
preceding the date fixed by the Company for the payment of defaulted interest,
whether or not such day is 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 Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use).
ARTICLE III.
[INTENTIONALLY OMITTED]
ARTICLE IV.
COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest on the Securities on
the dates and in the manner provided in the Securities and this Indenture. An
installment of principal, premium, if any, or interest on the Securities shall
be considered paid on the date it is due if the Trustee or Paying Agent (other
than the Company or an Affiliate of the Company) holds for the benefit of the
Holders, on that date, U.S. Legal Tender in immediately available funds
deposited and designated for and sufficient to pay the installment.
The Company shall pay interest on overdue principal and on overdue
installments of interest at the rate specified in the Securities compounded
semi-annually, to the extent lawful.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company shall give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any
such required office
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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 12.02.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Company shall give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency. The Company
hereby initially designates the principal corporate trust office of the Trustee
as such office of the Company.
SECTION 4.03. Corporate Existence.
Subject to Article Five, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate or other existence of each of its Subsidiaries in
accordance with the respective organizational documents of each of them and the
rights (charter and statutory) and corporate franchises of the Company and each
of its Subsidiaries; provided, however, that the Company shall not be required
to preserve, with respect to itself, any right or franchise, and with respect to
any of its Subsidiaries, any such existence, right or franchise, if (a) the
Board of Directors of the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and (b) the
loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 4.04. Payment of Taxes and Other Claims.
The Company shall, and shall cause each of its Subsidiaries to, 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 the Company or any of its Subsidiaries or properties and assets of
the Company or any of its Subsidiaries and (ii) all lawful claims, whether for
labor, materials, supplies, service or anything else, which have become due and
payable and which by law have or may become a Lien upon the property and assets
of the Company 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 whose amount, applicability or validity is
being contested in
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good faith by appropriate proceedings and for which disputed amounts adequate
reserves have been established in accordance with GAAP.
SECTION 4.05. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee within 120 days after
the end of its fiscal year an Officers' Certificate (one of the signatories of
which shall be the Company's principal executive officer, principal financial
officer or principal accounting officer) complying with Section 314(a)(4) of the
TIA and 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 the
Company has kept, observed, performed and fulfilled its obligations under this
Indenture (all without regard to periods of grace (other than the periods set
forth in Section 6.01 (vii), which shall be deemed fulfilled unless and until
the expiration of such periods) or notice requirements) and further stating, as
to each such Officer signing such certificate, whether or not the signer knows
of any failure by the Company or any Subsidiary of the Company to comply with
any conditions or covenants in this Indenture and, if such signer does know of
such a failure to comply, the certificate shall describe such failure with
particularity. The Officers' Certificate shall also notify the Trustee should
the relevant fiscal year end on any date other than the current fiscal year end
date.
(b) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, immediately upon becoming aware of any
Default or Event of Default under this Indenture, an Officers' Certificate
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto. The Trustee shall not be deemed
to have knowledge of a Default or an Event of Default unless one of its Trust
Officers receives notice of the Default giving rise thereto from the Company or
any of the Holders.
SECTION 4.06. SEC Reports.
(a) The Company shall file with the Trustee, simultaneously with any
filing of 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), if any,
which it is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. If the Company is not subject to the requirements of Section 13 or
15(d) of the Exchange Act, the Company shall file with the Trustee, at the time
it would have been required to file such information
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with the SEC were it required to do so, financial statements, including any
notes thereto (and, in the case of a fiscal year end, an auditors' report by an
independent certified public accounting firm of established national
reputation), and a "Management's Discussion and Analysis of Financial Condition
and Results of Operations," comparable to that which it would have been required
to include in such quarterly or annual reports, information, documents or other
reports if it had been subject to the requirements of Section 13 or 15(d) of the
Exchange Act (the "MD&A").
(b) The Company shall cause its annual reports to stockholders
containing audited consolidated financial statements and any quarterly or other
financial reports furnished by it to stockholders pursuant to the Exchange Act,
if any, to be mailed to the Holders (no later than the date such materials are
mailed or made available to its stockholders) at their addresses appearing in
the registrar of Securities maintained by the Registrar. If the Company is not
required to furnish annual or quarterly reports to its stockholders pursuant to
the Exchange Act, the Company shall cause its financial statements referred to
in Section 4.06(a) above, including any notes thereto (and, in the case of a
fiscal year end, an auditors' report by an independent certified public
accounting firm of established national reputation), together with the MD&A, to
be so mailed to the Holders within 90 days after the end of each of its fiscal
years and within 45 days after the end of each of the first three fiscal
quarters of each fiscal year. If the Trustee (at the Company's request and
expense) is to mail the foregoing information to the Holders, the Company shall
supply such information to the Trustee at least three Business Days prior
thereto.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.07. 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 of, any stay or extension law or any usury law or
other law wherever enacted which would prohibit or forgive the Company from
paying all or any portion of the principal of or interest on the Securities as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or
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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
insofar as such law applies to the Securities, and covenants that it shall 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 4.08. Limitation on Transactions with Affiliates.
The Company will not, and will not permit any of its Subsidiaries to,
sell, lease, transfer or otherwise dispose of any of its properties or assets
to, or purchase any property or asset from, or enter into any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate (each of the foregoing, an "Affiliate Transaction"),
unless (a) such Affiliate Transaction is made on terms that are no less
favorable to the Company or the relevant Subsidiary than those that would have
been obtained in a comparable transaction by the Company or such Subsidiary with
an unrelated person and (b) the Company delivers to the Trustee with respect to
any Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $10 million in any fiscal year, a
resolution of the Board of Directors set forth in an Officers' Certificate
certifying that such Affiliate Transaction or series of related Affiliate
Transactions complies with clause (a) above and such Affiliate Transaction or
series of related Affiliate Transactions has been approved by a majority of the
disinterested members of the Board of Directors; provided, however, that (i) any
employment agreement entered into by the Company or any of its Subsidiaries in
the ordinary course of business and consistent with the past practice of the
Company, such Subsidiary or W&D; (ii) transactions between or among the Company,
its Subsidiaries and/or W&D, and (iii) Affiliate Transactions entered into prior
to the Issue Date, shall be deemed not to be Affiliate Transactions.
SECTION 4.09. Limitation on Liens.
The Company shall not, and shall not permit any of its Material
Subsidiaries to, issue, incur, assume or guarantee any Indebtedness for borrowed
money secured by a Lien (other than Permitted Liens) upon any shares of the
Voting Stock of a Material Subsidiary which shares are owned by the Company or
its Material Subsidiaries without effectively providing that the Notes (and if
the Company so elects, any other indebtedness of the Company ranking on a parity
with the Notes) shall be secured equally and ratably with, or prior to, any such
secured Indebtedness so long as such Indebtedness remains outstanding.
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SECTION 4.10. Delivery of Certain Information.
At any time when the Company is not subject to Section 13 or 15(d) of the
Exchange Act, upon the request of a Holder of a Security, the Company will
promptly furnish or cause to be furnished Rule 144A Information (as defined
below) to such Holder, to a prospective purchaser who is a "qualified
institutional buyer," within the meaning of Rule 144A under the Securities Act,
of such Security designated by such Holder in order to permit compliance by such
Holder with Rule 144A in connection with the resale of such Security by such
Holder; provided, however, that the Company shall not be required to furnish
such information in connection with any request made on or after the date which
is two years from the later of (i) the date such Security (or any predecessor
Security) was acquired from the Company or (ii) the date such Security (or any
predecessor Security) was last acquired from an "affiliate" of the Company
within the meaning of Rule 144 under the Securities Act. "Rule 144A Information"
shall be such information as is specified pursuant to Rule 144(d)(4) under the
Securities Act as in effect on the date hereof.
ARTICLE V.
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc.
The Company may not, in a single transaction or through a series of
related transactions, consolidate with or merge with or into any other person,
or, directly or indirectly, sell, lease, assign, transfer or convey its
properties and assets as an entirety or substantially as an entirety (computed
on a consolidated basis) to another person or group of affiliated persons,
unless:
(1) the Company shall be the continuing person, or the person (if
other than the Company) formed by such consolidation or into which the Company
is merged or to which all or substantially all of the properties and assets of
the Company are transferred as an entirety or substantially as an entirety (the
Company or such other person being hereinafter referred to as the "Surviving
Person"), shall be a corporation organized and validly existing under the laws
of the United States, any State thereof or the District of Columbia, and shall
expressly assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form and substance satisfactory to the Trustee, all the
obligations of the Company under the Securities and this Indenture and the
Indenture, so supplemented, shall remain in full force and effect;
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(2) immediately after giving effect to such transaction and the
assumption of the obligations as set forth in clause (1), above, no Default or
Event of Default shall have occurred and be continuing; and
(3) if a supplemental indenture is required in connection with such
transaction, the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
assignment, or transfer and such supplemental indenture comply with this Article
Five and that all conditions precedent herein provided relating to such
transaction have been satisfied.
SECTION 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer of assets in accordance
with Section 5.01, the Surviving 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 Surviving Person had been
named as the Company herein. When a Surviving Person duly assumes all of the
obligations of the Company pursuant hereto and pursuant to the Securities, the
predecessor shall be relieved of the performance and observance of all
obligations and covenants of this Indenture and the Securities, including but
not limited to the obligation to make payment of the principal of and interest,
if any, on all the Securities then outstanding, and the Company may thereupon or
any time thereafter be liquidated and dissolved.
ARTICLE VI.
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
"Event of Default," wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
caused voluntarily or involuntarily or effected, without limitation, by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) failure by the Company to pay installments of interest on the
Notes as and when the same becomes due and payable and the continuance of any
such failure for 30 days;
(ii) the failure by the Company to pay all or any part of the
principal of or premium, if any, on the Notes when the
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same becomes due and payable, whether at maturity, acceleration, repurchase
obligation or otherwise.
(iii) the failure by the Company for 60 days after notice to the
Company by the Trustee or the holders of at least 25% percent in aggregate
principal amount of the Notes then outstanding to comply with any other
agreement or covenant in this Indenture;
(iv) any default under any mortgage, indenture or other instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness of the Company or any of its Subsidiaries whether such
Indebtedness now exists or is created after the date of this Indenture if (a)
such default either (i) results from the failure to pay any principal of any
Indebtedness at maturity (after expiration of any applicable grace period) or
(ii) relates to an obligation other than the obligation to pay any principal of
such Indebtedness at maturity and results in the holder or holders of such
Indebtedness causing such Indebtedness to become due prior to its stated
maturity and (b) the principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness in default for failure to pay
principal at maturity or which has been so accelerated, aggregates $25,000,000
or more at any one time;
(v) a decree, judgment, or order by a court of competent
jurisdiction shall have been entered adjudging the Company or any of its
Material Subsidiaries as bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization of the Company of any of its Material
Subsidiaries under any bankruptcy or similar law, and such decree or order shall
have continued undischarged and unstayed for a period of 60 days; or a decree or
order of a court of competent jurisdiction over the appointment of a receiver,
liquidator, trustee, or assignee in bankruptcy or insolvency of the Company or
any of its Material Subsidiaries, or of the property of any such person, or for
the winding up or liquidation of the affairs of any such person, shall have been
entered, and such decree, judgment, or order shall have remained in force
undischarged and unstayed for a period of 60 days;
(vi) the Company or any of its Material Subsidiaries shall institute
proceedings to be adjudicated a voluntary bankrupt, or shall consent to the
filing of a bankruptcy proceeding against it, or shall file a petition or answer
or consent seeking reorganization under any bankruptcy or similar law or similar
statute, or shall consent to the filing of any such petition, or shall consent
to the appointment of a custodian, receiver, liquidator, trustee, or assignee in
bankruptcy or insolvency of it or any of its assets or property, or shall make a
general assignment for the benefit of creditors,
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or shall admit in writing its inability to pay its debts generally as they
become due, or shall, within the meaning of any Bankruptcy Law, become
insolvent, fails generally to pay their debts as they become due, or takes any
corporate action in furtherance of or to facilitate, conditionally or otherwise,
any of the foregoing;
(vii) the failure of Xxxxxxxxx & Company, Inc. to maintain Net Capital
greater than or equal to the Minimum Net Capital Amount, and the continuance of
any such failure for a period of 30 consecutive days.
SECTION 6.02. Acceleration of Maturity Date; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 6.01(v) or (vi)) occurs and is continuing, then, and in every such case,
unless the principal of all of the Securities shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of then outstanding Securities, by a notice in writing to the
Company (and to the Trustee if given by Holders) (an "Acceleration Notice"), may
declare all of the principal of the Securities (and premium, if applicable)
determined as set forth below, together with accrued interest thereon, to be due
and payable immediately. If an Event of Default specified in Section 6.01(v) or
(vi) occurs, all principal of, premium applicable to, and accrued interest on,
the Securities shall be immediately due and payable on all outstanding
Securities without any declaration or other act on the part of the Trustee or
the Holders.
At any time after such a declaration of acceleration being made and before
a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter provided in this Article Six, the Holders of not less
than a majority in aggregate principal amount of then outstanding Securities, by
written notice to the Company and the Trustee, may waive, on behalf of all
Holders, an Event of Default or an event which with notice or lapse of time or
both would become an Event of Default if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, applicable to) any
Securities which would become due otherwise than by such declaration of
acceleration, and interest thereon at the rate borne by the Securities,
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(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate borne by the Securities,
(D) all sums paid or advanced by the Trustee hereunder and the
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and
(2) all Events of Default, other than the non-payment of amounts which
have become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 6.12.
Notwithstanding the previous sentence of this Section 6.02, no waiver shall be
effective for any Event of Default or event which with notice or lapse of time
or both would be an Event of Default with respect to any covenant or provision
which cannot be modified or amended without the consent of the Holder of each
outstanding Security, unless all such affected Holders agree, in writing, to
waive such Event of Default or event. No such waiver shall cure or waive any
subsequent default or impair any right consequent thereon.
SECTION 6.03. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if an Event of Default in payment of principal,
premium, or interest specified in clauses (1) or (2) of Section 6.01 occurs and
is continuing, the Company shall, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal, premium (if any) and interest, and, to the
extent that payment of such interest shall be legally enforceable, interest on
any overdue principal (and premium, if any) and on any overdue interest, at the
rate borne by the Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
compensation to, and expenses, disbursements and advances of the Trustee, its
agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust in favor of the
Holders, may institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Company or any other obligor upon the
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon the Securities, wherever situated.
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If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 6.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise to take any and
all actions under the TIA, including
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Securities and
to file such other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent and
counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding 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 it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment, or composition affecting the Securities
or the rights
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of any Holder thereof or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
SECTION 6.05. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust in favor of the Holders, and any recovery of
judgment shall, after provision for the payment of compensation to, and
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 6.06. Priorities.
Any money collected by the Trustee pursuant to this Article Six shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, premium (if
any) or interest, upon presentation of the Securities and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the Trustee in payment of all amounts due pursuant to Section
7.07;
SECOND: To the Holders in payment of the amounts then due and unpaid for
principal of, premium (if any) and interest on, the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal, premium (if any) and interest,
respectively; and
THIRD: To whomsoever may be lawfully entitled thereto, the remainder, if
any.
SECTION 6.07. Limitation on Suits.
No Holder of any Security shall have any right to order or direct the
Trustee to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
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(A) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(B) the Holders of not less than 25% in principal amount of
then outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(C) such Holder or Holders have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities to
be incurred or reasonably probable to be incurred in compliance with such
request;
(D) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(E) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 6.08. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision of this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of, and premium (if any) and interest on, such Security
on the Maturity Dates of such payments as expressed in such Security (in the
case of the Change of Control Purchase Price, on the applicable Change of
Control Purchase Date, in the case of the Prohibited Restricted Payment Purchase
Price, on the applicable Prohibited Restricted Payment Purchase Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 6.09. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in Section 2.07, no right or
remedy herein conferred upon or
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reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 6.10. Delay or Omission Not Waiver.
No delay or omission by the Trustee or by any Holder of any Security to
exercise any right or remedy arising upon any Event of Default shall impair the
exercise of any such right or remedy or constitute a waiver of any such Event of
Default. Every right and remedy given by this Article Six or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 6.11. Control by Holders.
The Holder or Holders of not less than of a majority in aggregate
principal amount of then outstanding Securities shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred upon the Trustee;
provided, that
(A) such direction shall not be in conflict with any rule of law or
with this Indenture,
(B) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Holders not taking part in such direction,
and
(C) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 6.12. Waiver of Past Default.
Subject to Section 6.08, the Holder or Holders of not less than a majority
in aggregate principal amount of the outstanding Securities may, by written
notice to the Trustee on behalf of all Holders, prior to the declaration of the
acceleration of the maturity of the Securities, waive any past default hereunder
and its consequences, except a default
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(A) in the payment of the principal of, premium, if any, or interest
on, any Security as specified in clauses (i) and (ii) of Section 6.01, or
(B) in respect of a covenant or provision hereof which, under
Article Nine, cannot be modified or amended without the consent of the Holder of
each outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair the exercise of any right arising therefrom.
SECTION 6.13. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, 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,
suffered or omitted to be taken by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section 6.13 shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in aggregate principal amount of the outstanding Securities, or to
any suit instituted by any Holder for enforcement of the payment of principal
of, or premium (if any) or interest on, any Security on or after the Maturity
Date of such Security.
SECTION 6.14. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
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ARTICLE VII.
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 has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the conduct
of 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 others, and no covenants or
obligations shall be implied in or read into this Indenture which 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, in the
case of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the accuracy
of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section 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
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accordance with a direction received by it pursuant to Section 6.11.
(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 to take or omit to take any action
under this Indenture or at the request, order or direction of the Holders or in
the exercise of any of its rights or powers if it shall have reasonable grounds
for believing that repayment of such funds or adequate Indemnity against such
risk or liability is not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c), (d) and (f) of this Section
7.01.
(f) The Trustee shall not be liable for interest on any assets
received by it except as the Trustee may agree in writing with the Company.
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 on 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 12.04 and 12.05. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
certificate or opinion.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action 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
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further inquiry or investigation into such facts or matters as it may see fit.
(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
therein or thereby.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities and may otherwise deal with the Company, its
Subsidiaries, 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 Securities and it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement in the Securities, other than the Trustee's certificate of
authentication, or the use or application of any funds received by a Paying
Agent other than the Trustee.
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 Securityholder 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 (or premium, if any) of, or interest on, any Security,
the Trustee may withhold the notice if and so long as a Trust Officer in good
faith determines that withholding the notice is in the interest of the
Securityholders.
SECTION 7.06. Reports by Trustee to Holders.
Within 60 days after each February 15 beginning with the February 15
following the date of this Indenture, the Trustee shall mail to each
Securityholder a brief report dated as of such February 15 that complies with
TIA Section 313(a) if such report is required by such TIA Section 313(a). The
Trustee also shall comply with TIA Sections 313(b) and 313(c).
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The Company shall promptly notify the Trustee in writing if the Securities
become listed on any stock exchange or automatic quotation system.
A copy of each report at the time of its mailing to Securityholders shall
be mailed to the Company and filed with the SEC and each stock exchange, if any,
on which the Securities are listed.
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such compensation
for its services as the Company and the Trustee shall from time to time agree in
writing. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable disbursements, expenses and advances
incurred or made by it. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents, accountants, experts and
counsel.
The Company shall indemnify each of the Trustee (in its capacity as
Trustee) and any predecessor Trustee and each of their respective officers,
directors, attorneys-in-fact and agents for, and hold it harmless against, any
claim, demand, expense (including but not limited to reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel), loss, charges
(including taxes (other than taxes based upon the income of the Trustee)) or
liability incurred by them without negligence or bad faith on its part, arising
out of or in connection with the acceptance or administration of this trust and
their rights or duties hereunder including the reasonable costs and expenses of
defending themselves against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The Trustee
shall notify the Company promptly of any claim asserted against the Trustee for
which it may seek indemnity. The Company shall defend the claim and the Trustee
shall provide reasonable cooperation at the Company's expense in the defense.
The Trustee may have separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel. 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 Securities on all assets held or
collected by the Trustee, in its capacity as Trustee, except assets held in
trust to pay principal and premium, if any, of or interest on particular
Securities.
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When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(v) or (vi) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Company's obligations under this Section 7.07 and any lien arising
hereunder shall survive the resignation or removal of the Trustee, the discharge
of the Company's obligations pursuant to Article Eight of this Indenture and any
rejection or termination of this Indenture under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company in writing. The Holder
or Holders of a majority in principal amount of the outstanding Securities may
remove the Trustee by so notifying the Company and the Trustee in writing and
may appoint a successor trustee with the Company's consent. 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, Custodian, or other public officer takes
charge of the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holder or
Holders of a majority in principal amount of the Securities 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 and provided
that all sums owing to the Trustee provided for in Section 7.07 have been paid,
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
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successor Trustee shall mail notice of its succession to each Holder.
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
Holder or Holders of at least 10% in principal amount of the outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder 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 such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements of TIA Section
310(a)(1) and TIA Section 310(a)(5). The Trustee shall have a combined capital
and surplus of at least $50,000,000 as set forth in its most recent published
annual report of condition. The Trustee shall comply with TIA Section 310(b).
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.
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ARTICLE VIII.
SATISFACTION AND DISCHARGE
SECTION 8.01. Satisfaction, Discharge of the Indenture and
Defeasance of the Securities.
The Company shall be deemed to have paid and discharged the entire
Indebtedness on the Securities and the provisions of this Indenture shall cease
to be of further effect (subject to Section 8.03), if:
(1) The Company irrevocably deposits in trust with the
Trustee, pursuant to an irrevocable trust and security agreement in form and
substance reasonably satisfactory to the Trustee, (i) U.S. Legal Tender in an
amount, (ii) U.S. Government Obligations in an amount, or (iii) a combination
thereof in an amount, which in the case of U.S. Government Obligations after
payment of all Federal, state and local taxes or other charges or assessments in
respect thereof payable by the Trustee, which through the payment of principal
and interest will provide, not later than one day before the due date of payment
in respect of the Securities, U.S. Legal Tender in an amount which, in the
opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the
Trustee, is sufficient to pay the principal of, premium, if any, and each
installment of principal and interest to Stated Maturity on the Securities then
outstanding on the dates on which any such payments are due and payable in
accordance with the terms of this Indenture and of the Securities;
(2) the Company has paid or caused to be paid all other sums
payable with respect to the outstanding Securities;
(3) Such deposits shall not cause the Trustee to have a
conflicting interest as defined in and for purposes of the TIA;
(4) No Default or Event of Default shall have occurred or be
continuing on the date of such deposit, and such deposit will not result in a
Default or Event of Default under this Indenture or a breach or violation of, or
constitute a default under, any other material instrument to which the Company
or any Subsidiary of the Company is a party or by which it or its property is
bound;
(5) The Trustee has received an opinion of tax counsel to the
effect that the deposit, defeasance and discharge will not cause the Holders of
the Notes to recognize income, gain or loss for federal income tax purposes and
that the Holders will be subject to Federal income tax in the same amounts and
in the
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same manner and at the same times as would have been the case if such deposit
and defeasance had not occurred;
(6) The deposit shall not result in the Company, the Trustee
or the trust becoming an "investment company" under the Investment Company Act
of 1940;
(7) Ninety days (or any greater period of time in which any
such deposit of trust funds may remain subject to Bankruptcy Laws insofar as
those laws apply to the Company) have elapsed following the deposit of the trust
funds and such funds are not subject to any Bankruptcy Laws affecting creditors'
rights generally;
(8) Holders of the Securities have a valid, perfected and
unavoidable first-priority security interest in the trust funds; and
(9) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each in form and substance satisfactory
to the Trustee, stating that all conditions precedent specified herein relating
to the defeasance contemplated by this Section 8.01 have been complied with.
In the event that the Company takes the necessary action to comply with
the provisions described in this Section 8.01 and the Securities are declared
due and payable because of the occurrence of an Event of Default, the Company
will remain liable for all amounts due on the Securities at the time of
acceleration resulting from such Event of Default in excess of the amount of
money and U.S. Obligations deposited with the Trustee pursuant to this Section
8.01 at the time with such acceleration.
SECTION 8.02. Termination of Obligations Upon Cancellation
of the Securities.
In addition to the Company's rights under Section 8.01, the Company may
terminate all of its obligations under this Indenture (subject to Section 8.03)
when:
(1) all Securities theretofore authenticated and delivered
(other than Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.07) have been delivered to the
Trustee for cancellation;
(2) the Company has paid or caused to be paid all
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each
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stating that all conditions precedent specified herein relating to the
satisfaction and discharge of this Indenture have been complied with and that
such satisfaction and discharge will not result in a breach or violation of, or
constitute in Default under, this Indenture or any other instrument to which the
Company or any of its Subsidiaries is a party or by which it or their property
is bound.
SECTION 8.03. Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of this Indenture and of
the Securities referred to in Section 8.01 or 8.02, the respective obligations
of the Company and the Trustee under Sections 2.02, 2.03, 2.04, 2.05, 2.06,
2.07, 2.11, 2.12, 4.01, 4.02, 4.04, 6.07, 6.08, 7.07, 7.08, 8.05, 8.06, 8.07,
12.01, 12.02, 12.04, 12.05, 12.07, 12.08, 12.11 and this Section 8.03 shall
survive until the Securities are no longer outstanding, and thereafter the
obligations of the Company and the Trustee under Sections 6.08, 7.07, 7.08,
8.05, 8.06, 8.07, 12.04, 12.05, 12.11 and this Section 8.03 shall survive.
Nothing contained in this Article Eight shall abrogate any of the obligations or
duties of the Trustee under this Indenture.
SECTION 8.04. Acknowledgment of Discharge by Trustee.
After (i) the conditions of Section 8.01 or 8.02 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 Officers'
Certificate and an Opinion of Counsel, each 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 request
shall acknowledge in writing the discharge of the Company's obligations under
this Indenture except for those surviving obligations specified in Section 8.03.
SECTION 8.05. Application of Trust Assets.
The Trustee shall hold any U.S. Legal Tender or U.S. Government
Obligations deposited with it in the irrevocable trust established pursuant to
Section 8.01. The Trustee shall apply the deposited U.S. Legal Tender or U.S.
Government Obligations, together with earnings thereon, through the Paying Agent
(other than the Company or any Affiliate of the Company), in accordance with
this Indenture and the terms of the Securities, to the payment of principal of
and interest on the Securities.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Legal Tender or U.S.
Government Obligations deposited pursuant to Section 8.01 or the principal and
interest received in respect
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thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of outstanding Securities.
SECTION 8.06. Repayment to the Company.
Upon termination of the trust established pursuant to Section 8.01, the
Trustee and the Paying Agent shall promptly pay to the Company upon request any
excess U.S. Legal Tender or U.S. Government Obligations held by them.
The Trustee and the Paying Agent shall pay to the Company upon request,
and, if applicable, in accordance with the irrevocable trust established
pursuant to Section 8.01, any U.S. Legal Tender or U.S. Government Obligations
held by them for the payment of principal of or interest on the Securities that
remain unclaimed for two years after the date on which such payment shall have
become due; provided, however, that the Trustee or such Paying Agent, before
being required to make any such repayment, may, at the expense of the Company,
cause to be published once, in a newspaper customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City of
New York, 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, any unclaimed balance of such money then remaining shall be repaid
to the Company. After payment to the Company, Holders entitled to
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such payment must look to the Company for such payment as general creditors
unless an applicable abandoned property law designates another person.
SECTION 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. Legal Tender or
U.S. Government Obligations in accordance with Section 8.01 or 8.02 by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.01 or 8.02 until such time as the Trustee or Paying Agent is permitted
to apply all such U.S. Legal Tender or U.S. Government Obligations in accordance
with Section 8.01 or 8.02; provided, however, that if the Company has made any
payment of principal of, premium, if any, or interest on any Securities because
of the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the U.S.
Legal Tender or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holder, the Company, when authorized by Board
Resolutions, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to cure any ambiguity, defect, or inconsistency, or to
make any other provisions with respect to matters or questions arising under
this Indenture which shall not be inconsistent with the provisions of this
Indenture, provided such action pursuant to this clause (1) shall not adversely
affect the interests of any Holder in any respect;
(2) to add to the covenants and Events of Default of the
Company for the benefit of the Holders, or to surrender any right or power
herein conferred upon the Company or to make any other change that does not
adversely affect the rights of any Holder;
(3) to provide for collateral for the Securities;
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(4) to evidence the succession of another person to the
Company, and the assumption by any such successor of the obligations of the
Company, herein and in the Securities in accordance with Article Five;
(5) to comply with the TIA; or
(6) establishing the form or terms of Notes or to provide for
uncertificated Securities in addition to or in place of certificated Securities
and to provide for the issuance and authorization of Series B Notes in exchange
for Original Notes in compliance with this Indenture and the Registration Rights
Agreement.
SECTION 9.02. Amendments, Supplemental Indentures and
Waivers with Consent of Holders.
Subject to Section 6.08, with the consent of the Holders of not less than
a majority in aggregate principal amount of then outstanding Securities, by
written act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by Board Resolutions, and the Trustee may amend or
supplement this Indenture or the Securities or enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
the Securities or of modifying in any manner the rights of the Holders under
this Indenture or the Securities. Subject to Section 6.08, the Holder or Holders
of a majority, in principal amount of then outstanding Securities may waive
compliance by the Company with any provision of this Indenture or the
Securities. Notwithstanding any of the above, however, no such amendment,
supplemental indenture or waiver shall, without the consent of the Holder of
each outstanding Security affected thereby:
(1) reduce the percentage of principal amount of Securities
whose Holders must consent to an amendment, supplement or waiver of any
provision of this Indenture or the Securities;
(2) reduce the rate or extend the time for
payment of interest on any Security;
(3) reduce the principal amount of any Security;
(4) change the Stated Maturity of any Security or
extend any Maturity Date of any Security;
(5) make any changes in the provisions concerning waivers of
Defaults or Events of Default by Holders of the Securities or the rights of
Holders to recover the principal or premium of, or interest on, any Security;
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(6) make any changes in Section 6.08, 6.12 or this third
sentence of this Section 9.02;
(7) make the principal of, or the interest on, any Security
payable with anything or in any manner other than as provided for in this
Indenture and the Securities on the Issue Date; or
(8) make the Securities subordinated in right of payment to
any extent or under any circumstances to any other indebtedness.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 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.
In connection with any amendment, supplement or waiver under this Article
Nine, the Company may, but shall not be obligated to, offer to any Holder who
consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
SECTION 9.03. Compliance with TIA.
Every amendment, waiver or supplement of this Indenture or the Securities
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 Security or portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
Security. However, any such Holder or subsequent Holder may revoke the consent
as to his Security or portion of his Security by written notice to the Company
or the person designated by the Company as the person to whom consents should be
sent if such revocation is received by the Company or such person before the
date on which the Trustee receives an Officers' Certificate certifying that the
Holders of the requisite principal amount of Securities have consented (and not
theretofore revoked such consent) to the amendment, supplement or waiver.
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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 the date so fixed by the
Company notwithstanding the provisions of the TIA. 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, and only those persons (or
their duly designated proxies), shall be entitled to revoke any consent
previously given, whether or not such persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date.
After an amendment, supplement or waiver becomes effective, it shall bind
every Securityholder unless it makes a change described in any of clauses (1)
through (9) of Section 9.02, in which case, the amendment, supplement or waiver
shall bind only each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security; provided, that any such waiver shall
not impair or affect the right of any Holder to receive payment of principal and
premium of and interest or a Security, on or after the respective dates set for
such amounts to become due and payable expressed in such Security, or to bring
suit for the enforcement of any such payment on or after such respective dates.
SECTION 9.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security, the
Trustee may require the Holder of the Security to deliver it to the Trustee or
require the Holder to put an appropriate notation on the Security. The Trustee
may place an appropriate notation on the Security about the changed terms and
return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms. Any failure
to make the appropriate notation or to issue a new Security shall not affect the
validity of such amendment, supplement or waiver.
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 stating that the execution of
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any amendment, supplement or waiver authorized pursuant to this Article Nine is
authorized or permitted by this Indenture.
ARTICLE X.
MEETINGS OF SECURITYHOLDERS
SECTION 10.01. Purposes for Which Meetings May Be Called.
A meeting of Securityholders may be called at any time and from time to
time pursuant to the provisions of this Article Ten for any of the following
purposes:
(a) to give any notice to the Company or to the
Trustee, or to give any directions to the Trustee, or to waive or
to consent to the waiving of any Default or Event of Default hereunder and its
consequences, or to take any other action authorized to be taken by
Securityholders pursuant to any of the provisions of Article Six;
(b) to remove the Trustee or appoint a successor
Trustee pursuant to the provisions of Article Seven;
(c) to consent to an amendment, supplement or waiver
pursuant to the provisions of Section 9.02; or
(d) to take any other action (i) authorized to be taken by or on
behalf of the Holder or Holders of any specified aggregate principal amount of
the Securities under any other provision of this Indenture, or authorized or
permitted by law or (ii) which the Trustee deems necessary or appropriate in
connection with the administration of this Indenture.
SECTION 10.02. Manner of Calling Meetings.
The Trustee may at any time call a meeting of Securityholders to take any
action specified in Section 10.01, to be held at such time and at such place in
The City of New York, State of New York or elsewhere as the Trustee shall
determine. Notice of every meeting of Securityholders, setting forth the time
and place of such meeting and in general terms the action proposed to be taken
at such meeting, shall be mailed by the Trustee, first-class postage prepaid, to
the Company and to the Holders at their last addresses as they shall appear on
the registration books of the Registrar, not less than 10 nor more than 60 days
prior to the date fixed for a meeting. The Company shall pay the costs and
expenses of preparing and mailing such notice.
Any meeting of Securityholders shall be valid without notice if the
Holders of all Securities then outstanding are present in
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person or by proxy, or if notice is waived before or after the meeting by the
Holders of all Securities outstanding, and if the Company and the Trustee are
either present by duly authorized representatives or have, before or after the
meeting, waived notice.
SECTION 10.03. Call of Meetings by Company or Holders.
In case at any time the Company, pursuant to a Board Resolution, or the
Holders of not less than 10% in aggregate principal amount of the Securities
then outstanding, shall have requested the Trustee to call a meeting of
Securityholders to take any action specified in Section 10.01, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have mailed the notice of such meeting
within 20 days after receipt of such request, then the Company or the Holders of
Securities in the amount above specified may determine the time and place in The
City of New York, State of New York or elsewhere for such meeting and may call
such meeting for the purpose of taking such action, by mailing or causing to be
mailed notice thereof as provided in Section 10.02, or by causing notice thereof
to be published at least once in each of two successive calendar weeks (on any
Business Day during such week) in a newspaper or newspapers printed in the
English language, customarily published at least five days a week of a general
circulation in The City of New York, State of New York, the first such
publication to be not less than 10 nor more than 60 days prior to the date fixed
for the meeting.
SECTION 10.04. Who May Attend and Vote at Meetings.
To be entitled to vote at any meeting of Securityholders, a person shall
(a) be a registered Holder of one or more Securities, or (b) be a person
appointed by an instrument in writing as proxy for the registered Holder or
Holders of Securities. The only persons who shall be entitled to be present or
to speak at any meeting of Securityholders shall be the persons entitled to vote
at such meeting and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 10.05. Regulations May Be Made by Trustee; Conduct
of the Meeting; Voting Rights; Adjournment.
Notwithstanding any other provision of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any action by or
an meeting of Securityholders, in regard to proof of the holding of Securities
and of the appointment of proxies, and in regard to the appointment and duties
of inspect of votes, and submission and examination of
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proxies, certificates and other evidence of the right to vote, such other
matters concerning the conduct of the meeting as it shall think appropriate.
Such regulations may fix a record date and time for determining the Holders of
record of Securities entitled to vote at such meeting, which case those and only
those persons who are Holders of Securities at the record date and time so
fixed, or their proxies, shall be entitled to vote at such meeting whether or
not they shall be such Holders at the time the meeting.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 10.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Holders of a majority
in principal amount of the Securities represented at the meeting and entitled to
vote.
At any meeting each Securityholder or proxy shall be entitled to one vote
for each $1,000 principal amount of Securities held or represented by him;
provided, however, that no vote shall be cast or counted at meeting in respect
of any Securities challenged as not outstanding and ruled by the chairman of the
meeting to be not then outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Securities held by him or instruments in
writing as aforesaid duly designating him as the proxy to vote on behalf of
other Securityholders. Any meeting of Securityholders duly called pursuant to
the provisions of Section 10.02 or Section 10.03 may be adjourned from time to
time by vote of the Holder or Holders of a majority in aggregate principal
amount of the Securities represented at the meeting and entitled to vote, and
the meeting may be held as so adjourned without further notice.
SECTION 10.06. Voting at the Meeting and Record to Be Kept.
The vote upon any resolution submitted to any meeting of Securityholders
shall be by written ballots on which shall be subscribed the signatures of the
Holders of Securities or of their representatives by proxy and the principal
amount of the Securities voted by the ballot. The permanent chairman of the
meeting shall appoint two inspectors of votes, who shall count all votes cast at
the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Securityholders shall be prepared by the secretary of the meeting and
there shall be attached to such record the original reports of the inspectors of
votes on any vote by ballot
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taken thereat and affidavits by one or more persons having knowledge of the
facts, setting forth a copy of the notice of the meeting and showing that such
notice was mailed as provided in Section 10.02 or published as provided in
Section 10.03. The record shall be signed and verified by the affidavits of the
permanent chairman and the secretary of the meeting and one of the duplicates
shall be delivered to the Company and the other to the Trustee to be preserved
by the Trustee, the latter to have attached thereto the ballots voted at the
meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 10.07. Exercise of Rights of Trustee or
Securityholders May Not Be Hindered or Delayed by Call of
Meeting.
Nothing contained in this Article Ten shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Securityholders or
any rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Securityholders under any of the provisions of
this Indenture or of the Securities.
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ARTICLE XI.
RIGHT TO REQUIRE REPURCHASE
SECTION 11.01. Repurchase of Securities at Option of the Holder
Upon Change of Control.
(a) In the event that a Change of Control occurs, each Holder of
Securities shall have the right, at such Holder's option, subject to the terms
and conditions of the Indenture, to require the Company to repurchase all or any
part of such Holder's Securities (provided that the principal amount of such
Securities at maturity must be $1,000 or an integral multiple thereof) on the
date that is no later than 40 Business Days after the occurrence of such Change
of Control (the "Change of Control Payment Date"), at a cash purchase price (the
"Change of Control Purchase Price") equal to 101% of the principal amount
thereof, plus accrued and unpaid interest, if any, to and including the Change
of Control Payment Date.
(b) Within 10 Business Days after the Company knows, or reasonably should
know, of the occurrence of a Change of Control, the Company shall make an
irrevocable, unconditional offer (a "Change of Control Offer") to the Holders to
purchase for U.S. Legal Tender all of the Securities pursuant to the offer
described in clause (c) of this Section 11.01 at the Change of Control Purchase
Price. Within five Business Days after each date upon which the Company knows,
or reasonably should know, of the occurrence of a Change of Control requiring
the Company to make a Change of Control Offer pursuant to this Section 11.01,
the Company shall give notice (the "Change of Control Notice") to the Trustee.
(c) Notice of a Change of Control Offer shall be sent, at least 20
Business Days prior to Change of Control Put Date (as defined below), by first
class mail, by the Company to each Holder at its registered address, with a copy
to the Trustee. The notice to the Holders shall contain all instructions and
materials required by applicable law and shall contain or make available to
Holders other information material to such Holders' decision to tender
Securities pursuant to the Change of Control Offer. The notice, which shall
govern the terms of the Offer, shall state:
(1) that the Change of Control Offer is being made pursuant to this
Section 11.01 and that all Securities, or portions thereof, tendered will
be accepted for payment;
(2) the Change of Control Purchase Price (including the amount of accrued
and unpaid interest), the Change of
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Control Payment Date and the Change of Control Put Date (as defined
below);
(3) that any Security, or portion thereof, not tendered or accepted for
payment will continue to accrue interest;
(4) that, unless the Company defaults in depositing U.S. Legal Tender with
the Paying Agent in accordance with the last paragraph of this clause (c)
or payment to Holders thereof is otherwise prevented, any Security, or
portion thereof, accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest after the Change of Control Payment
Date;
(5) that Holders electing to have a Security, or portion thereof,
purchased pursuant to a Change of Control Offer will be required to
surrender the Security, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Security completed, to the Paying Agent
(which may not for purposes of this Section 11.01, notwithstanding
anything in this Indenture to the contrary, be the Company or any
Affiliate of the Company) at the address specified in the notice prior to
the close of business on the third Business Day prior to the Change of
Control Payment Date (the "Change of Control Put Date");
(6) that Holders will be entitled to withdraw their election, in whole or
in part, if the Paying Agent receives, prior to the close of business on
the Final Change of Control Put Date, a facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the
Securities the Holder is withdrawing and a statement that such Holder is
withdrawing his election to have such principal amount of Securities
purchased; and
(7) a brief description of the events resulting in such Change of Control.
Any such Change of Control Offer shall comply with all applicable provisions of
Federal and state laws, including those regulating tender offers, if applicable,
and any provisions of this Indenture which conflict with such laws shall be
deemed to be superseded by the provisions of such laws.
On or before the Change of Control Payment Date, the Company shall (i) accept
for payment Securities or portions thereof properly tendered pursuant to the
Change of Control Offer prior to the close of business on the Change of Control
Put Date, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay
the Change of Control Purchase Price (including accrued and unpaid interest) of
all Securities so tendered and (iii) deliver
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to the Trustee Securities so accepted together with an Officers' Certificate
listing the Securities or portions thereof being purchased by the Company. The
Paying Agent shall promptly mail to the Holders of Securities so accepted
payment in an amount equal to the Change of Control Purchase Price (including
accrued and unpaid interest), and the Trustee shall promptly authenticate and
mail or deliver to such Holders a new Security equal in principal amount to any
unpurchased portion of the Security surrendered. Any Securities not so accepted
shall be promptly mailed or delivered by the Company to the Holder thereof. The
Company will publicly announce the results of the Change of Control Offer on or
as soon as practicable after the Change of Control Payment Date.
SECTION 11.02. Repurchase of Securities at Option of the Holder
Upon Prohibited Restricted Payment.
(a) In the event that a Prohibited Restricted Payment occurs, each Holder
of Securities shall have the right, at such Holder's option, subject to the
terms and conditions of the Indenture, to require the Company to repurchase all
or any part of such Holder's Securities (provided that the principal amount of
such Securities at maturity must be $1,000 or an integral multiple thereof) on
the date that is no later than 40 Business Days after the occurrence of such
Prohibited Restricted Payment (the "Section 11.02 Payment Date"), at a cash
purchase price (the "Prohibited Restricted Payment Purchase Price") equal to
102% of the principal amount thereof, plus accrued and unpaid interest, if any,
to and including the Section 11.02 Payment Date.
(b) Within 10 Business Days after the Company knows, or reasonably should
know, of the occurrence of a Prohibited
Restricted Payment, the Company shall make an irrevocable, unconditional offer
(a "Prohibited Restricted Payment Offer") to the Holders to purchase for U.S.
Legal Tender all of the Securities pursuant to the offer described in clause (c)
of this Section 11.02 at the Prohibited Restricted Payment Purchase Price.
Within five Business Days after each date upon which the Company knows, or
reasonably should know, of the occurrence of a Prohibited Restricted Payment
requiring the Company to make a Prohibited Restricted Payment Offer pursuant to
this Section 11.02, the Company shall give notice (the "Prohibited Restricted
Payment Notice") to the Trustee.
(c) Notice of a Prohibited Restricted Payment Offer shall be sent, at
least 20 Business Days prior to Prohibited Restricted Payment Put Date (as
defined below), by first class mail, by the Company to each Holder at its
registered address, with a copy to the Trustee. The notice to the Holders shall
contain all instructions and materials required by applicable law and shall
contain or make available to Holders other information material
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to such Holders' decision to tender Securities pursuant to the Prohibited
Restricted Payment Offer. The notice, which shall govern the terms of the
Prohibited Restricted Payment Offer, shall state:
(1) that the Prohibited Restricted Payment Offer is being made pursuant to
this Section 11.02 and that all Securities, or portions thereof, tendered
will be accepted for payment;
(2) the Prohibited Restricted Payment Purchase Price (including the amount
of accrued and unpaid interest), the Section 11.02 Payment Date and the
Prohibited Restricted Payment Put Date (as defined below);
(3) that any Security, or portion thereof, not tendered or accepted for
payment will continue to accrue interest;
(4) that, unless the Company defaults in depositing U.S. Legal Tender with
the Paying Agent in accordance with the last paragraph of this clause (c)
or payment to Holders thereof is otherwise prevented, any Security, or
portion thereof, accepted for payment pursuant to the Prohibited
Restricted Payment Offer shall cease to accrue interest after the Section
11.02 Payment Date;
(5) that Holders electing to have a Security, or portion thereof,
purchased pursuant to a Prohibited Restricted Payment Offer will be
required to surrender the Security, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Security completed, to the
Paying Agent (which may not for purposes of this Section 11.02,
notwithstanding anything in this Indenture to the contrary, be the Company
or any Affiliate of the Company) at the address specified in the notice
prior to the close of business on the third Business Day prior to the
Section 11.02 Payment Date (the "Prohibited Restricted Payment Put Date");
(6) that Holders will be entitled to withdraw their election, in whole or
in part, if the Paying Agent receives, prior to the close of business on
the Final Prohibited Restricted Payment Put Date, a facsimile transmission
or letter setting forth the name of the Holder, the principal amount of
the Securities the Holder is withdrawing and a statement that such Holder
is withdrawing his election to have such principal amount of Securities
purchased; and
(7) a brief description of the events resulting in such Prohibited
Restricted Payment.
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Any such Prohibited Restricted Payment Offer shall comply with all applicable
provisions of Federal and state laws, including those regulating tender offers,
if applicable, and any provisions of this Indenture which conflict with such
laws shall be deemed to be superseded by the provisions of such laws.
On or before the Section 11.02 Payment Date, the Company shall (i) accept for
payment Securities or portions thereof properly tendered pursuant to the
Prohibited Restricted Payment Offer prior to the close of business on the
Prohibited Restricted Payment Put Date, (ii) deposit with the Paying Agent U.S.
Legal Tender sufficient to pay the Prohibited Restricted Payment Purchase Price
(including accrued and unpaid interest) of all Securities so tendered and (iii)
deliver to the Trustee Securities so accepted together with an Officers'
Certificate listing the Securities or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to the Holders of Securities so
accepted payment in an amount equal to the Prohibited Restricted Payment
Purchase Price (including accrued and unpaid interest), and the Trustee shall
promptly authenticate and mail or deliver to such Holders a new Security equal
in principal amount to any unpurchased portion of the Security surrendered. Any
Securities not so accepted shall be promptly mailed or delivered by the Company
to the Holder thereof. The Company will publicly announce the results of the
Prohibited Restricted Payment Offer on or as soon as practicable after the
Section 11.02 Payment Date.
ARTICLE XII.
MISCELLANEOUS
SECTION 12.01. TIA Controls.
If any provision of this Indenture limits, qualifies, or conflicts with
the duties imposed by operation of the TIA, the imposed duties, upon
qualification of this Indenture under the TIA, shall control.
SECTION 12.02. Notices.
Any notices or other communications to the Company or the Trustee required
or permitted hereunder shall be in writing, and shall be sufficiently given if
made by hand delivery, by telecopier or registered or certified mail, postage
prepaid, return receipt requested, addressed as follows:
if to the Company:
Xxxxxxxxx Group, Inc.
1100 Santa Xxxxxx Xxxxxxxxx
00xx Xxxxx
00
00
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: General Counsel
with a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 X. Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxx, Esq.
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: Corporate Trust Trustee Administration
The Company or the Trustee by notice to each other party may designate
additional or different addresses as shall be furnished in writing by such
party. 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 acknowledged, if telecopied; and five Business Days after
mailing if sent by registered or certified mail, postage prepaid (except that a
notice of change of address shall not be deemed to have been given until
actually received by the addressee).
Any notice or communication mailed to a Securityholder shall be mailed to
him by first class mail or other equivalent means at his address as it appears
on the registration books of 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 Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. 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.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the
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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 such
certificates and opinions as may be required under TIA:
(1) Each such Officers' Certificate (in form and substance
reasonably satisfactory to the Trustee) shall state 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) Each such Opinion of Counsel (in form and substance
reasonably satisfactory to the Trustee) shall state 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 shall include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of each
such person, such condition or covenant has been complied with; provided,
however, that with respect to matters of fact an Opinion of Counsel may rely on
an Officers' Certificate or certificates of public officials.
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SECTION 12.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for
its functions.
SECTION 12.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in The City of New York, Borough of Manhattan 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 SECURITIES 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
CONFLICTS OF LAW. THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF
ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW
YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW
YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS INDENTURE AND THE SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE
AFORESAID COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THEY MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH
THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY
SECURITYHOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER
JURISDICTION.
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.
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SECTION 12.10. No Recourse against Others.
A director, officer, employee, stockholder or incorporator, as such,
present or future, of the Company or any successor to the Company shall not have
any liability for any obligations of the Company under the Securities, this
Indenture or the Registration Rights Agreement or for any claim based on, in
respect of or by reason of such obligations or their creations. Each
Securityholder by accepting a Security waives and releases all such liability.
Such waiver and release are part of the consideration for the issuance of the
Securities.
SECTION 12.11. Successors.
All agreements of the Company in this Indenture and the Securities shall
bind its successors. All agreements of the Trustee in this Indenture shall bind
its successor.
SECTION 12.12. Duplicate Originals.
All parties may sign any number of copies or counterparts of this
Indenture. Each signed copy or counterpart 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
Securities 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
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
SECTION 12.14. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and headings of the Articles
and the Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
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Signature Pages To Follow
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
XXXXXXXXX GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxx Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxx Xxxxxxx
Title: Assistant Vice President
Signature Page
76
EXHIBITS
Exhibit A - Form of Note
Exhibit B - Certificate to be Delivered Upon Exchange or
Registration of Transfer of Notes
Exhibit C - Transferee Letter of Representations
Exhibit D - Transferor Letter Pursuant to Regulation S
Transfers
77
Exhibit A
[FACE OF NOTE]
CUSIP No. ____
XXXXXXXXX GROUP, INC.
7 1/2% Series B SENIOR NOTE DUE 2007
No. R[A][B]- $
Xxxxxxxxx Group, Inc., a Delaware corporation (hereinafter called the
"Company," which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_____________________ , or registered assigns, the principal sum of
_________________ Dollars, on August 15, 2007.
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
Reference is made to the further provisions of this Security on the
reverse side, which will, for all purposes, have the same effect as if set forth
at this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed.
XXXXXXXXX GROUP, INC.
By:
------------------
Attest:
--------------------------
Secretary
A-1
78
(Back of Note)
7 1/2 [Series B] Senior Note due 2007
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment 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.1/
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM OR NOT SUBJECT TO, REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY,
PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) (THE
"RESALE RESTRICTION TERMINATION DATE") ONLY (A) TO THE COMPANY, (B) PURSUANT TO
A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (A)(2), (A)(3)
OR (A)(7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITIES
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED
INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE
IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F)
PURSUANT
--------
1/ This paragraph should be included only if the Note is issued in global form.
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TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO THE COMPANY AND THE TRUSTEE."
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
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[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By
--------------------------------
Authorized Signatory
Dated:
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XXXXXXXXX GROUP, INC.
7 1/2% Senior Note
due 2007
1. Interest.
Xxxxxxxxx Group, Inc., a Delaware corporation (the "Company"), promises to
pay interest on the principal amount of this Security at a rate of 7 1/2% per
annum. To the extent it is lawful, the Company promises to pay interest on any
interest payment due but unpaid on such principal amount at a rate of 7 1/2% per
annum compounded semi-annually.
The Company will pay interest semi-annually on February 15 and August 15
of each year (each, an "Interest Payment Date"), commencing February 15, 1998.
Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from August 18, 1997.
Interest will be computed on the basis of a 360-day year consisting of twelve
30-day months.
2. Method of Payment.
The Company shall pay interest on the Securities (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. Holders must
surrender Securities to a Paying Agent to collect principal payments. Except as
provided below, the Company shall pay principal and interest in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for payment of public and private debts ("U.S. Legal Tender").
However, the Company may pay principal and interest by wire transfer of Federal
funds, or interest by its check payable in such U.S. Legal Tender. The Company
may deliver any such interest payment to the Paying Agent or the Company may
mail any such interest payment to a Holder at the Holder's registered address.
3. Paying Agent and Registrar.
Initially, The Bank of New York (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.
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The Company issued the Securities under an Indenture, dated as of August
18, 1997 (the "Indenture"), between the Company and the Trustee. Capitalized
terms herein are used as defined in the Indenture unless otherwise defined
herein. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act, as in
effect on the date of the Indenture. The Securities are subject to all such
terms, and Holders of Securities are referred to the Indenture and said Act for
a statement of them. The Securities are unsecured senior obligations of the
Company limited in aggregate principal amount to $100,000,000.
5. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in denominations
of $1,000 and integral multiples of $1,000. A Holder may register the transfer
of, or exchange Securities in accordance with, the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar shall not be required to register the transfer of
or to exchange a Note between a Record Date and the next succeeding Interest
Payment Date.
Pursuant to the Registration Rights Agreement among the Company and the
Holders of the Notes, the Company will be obligated to consummate an exchange
offer pursuant to which the Holder of this Note shall have the right to exchange
this Note for a Series B Note issued under the Indenture in accordance with the
terms of the Registration Rights Agreement which have been registered under the
Securities Act, in like principal amount and having identical terms as the
Notes. The Holders of the Notes shall be entitled to receive certain additional
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. Within five days after the occurrence of an event
so resulting in such additional payments, the Company shall provide the Trustee
with an Officers' Certificate describing such event and providing the Trustee
with all necessary details relating to the payments, including, without
limitation, the method of calculating the payments.
6. Persons Deemed Owners.
The registered Holder of a Security may be treated as the owner of it for
all purposes.
7. Unclaimed Money.
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If money for the payment of principal or interest remains unclaimed for
two years, the Trustee and the Paying Agent(s) will pay the money back to the
Company at its written request. After that, all liability of the Trustee as such
Paying Agent(s) with respect to such money shall cease.
8. Discharge Prior to Maturity.
If the Company at any time deposits into an irrevocable trust with the
Trustee U.S. Legal Tender or U.S. Government Obligations sufficient to pay the
principal of and interest on the Securities to 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 Securities
(including the financial covenants, but excluding its obligation to pay the
principal of and interest on the securities).
9. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities 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 Securities then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture or the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
or to make any other change that does not adversely affect the rights of any
Holder of a Security.
10. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the Company
and its Subsidiaries to, among other things, incur liens, merge or consolidate
with any other person and sell, lease, transfer or otherwise dispose of
substantially all of its properties or assets. The limitations are subject to a
number of important qualifications and exceptions. The Company must annually
report to the Trustee on compliance with such limitations. The Indenture also
requires Xxxxxxxxx & Company, Inc. to maintain a certain minimum net capital
amount.
11. Successors.
When a successor assumes all the obligations of its predecessor under the
Securities and the Indenture, the predecessor will be released from those
obligations.
13. Change of Control.
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In the event there shall occur any Change of Control, each Holder of
Securities shall have the right, at each Holder's option but subject to the
limitations and conditions set forth in the Indenture, to require the Company to
purchase on the Change of Control Payment Date in the manner specified in the
Indenture, all or any part (in integral multiples of $1,000) of such Holder's
Securities at a Change of Control Purchase Price equal to 101% of the principal
amount thereof, together with accrued and unpaid interest, if any, to the Change
of Control Payment Date. (Article Eleven).
14. Prohibited Restricted Payments.
In the event there shall occur any Prohibited Restricted Payment, each
Holder of Securities shall have the right, at each Holder's option but subject
to the limitations and conditions set forth in the Indenture, to require the
Company to purchase on the Section 11.02 Payment Date in the manner specified in
the Indenture, all or any part (in integral multiples of $1,000) of such
Holder's Securities at a Prohibited Restricted Payment Purchase Price equal to
102% of the principal amount thereof, together with accrued and unpaid interest,
if any, to the Section 11.02 Payment Date. (Article Eleven).
12. 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 Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Securities. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the Securities then
outstanding may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders of Securities 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.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity,
may make loans to, accept deposits from, and perform services for its
Affiliates, and may otherwise deal or its Affiliates as if it were not the
Trustee.
13. No Recourse Against Others.
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No stockholder, director, officer, employee or incorporator, as such,
past, present or future, of the Company or any successor corporation shall have
any liability for any obligation of the Company under the Securities 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 Security by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities.
14. Authentication.
This Security shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on the other side of this Security.
15. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Security
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).
16. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
17. Governing Law.
THIS NOTE 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 CONFLICTS OF LAW. THE COMPANY
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE, AND
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT THEY MAY
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EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH
THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY
SECURITYHOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER
JURISDICTION.
[FORM OF ASSIGNMENT]
I or we assign this security to
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
Please insert Social Security or other identifying number of
assignee
---------------------
and irrevocably appoint ________________ agent to transfer this
Security on the books of the Company. The agent may substitute
another to act for him.
Dated: Signed:
------------------------ ------------------------------
--------------------------------------------------------------------------------
(Sign exactly as name appears on
the other side of this security)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant to
Article Eleven of the Indenture, check the box. [ ]
If you want to elect to have only part of this Security purchased by the Company
pursuant to Article Eleven of the Indenture, state the amount you want to be
purchased. $___________.
Date:
A-10
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---------------------
Signature
(sign exactly as your name appears on the other side of this Security)
Signature Guarantee:__________________
SCHEDULE OF EXCHANGES OF CERTIFICATED NOTES2/
The following exchanges of a part of this Global Note for Certificated
Notes have been made:
Amount of Signature of
Amount of increase in Principal Amount authorized
decrease in Principal of this Global officer of
Principal Amount of Note following Trustee or
Date of Amount of this this Global such decrease Note
Exchange Global Note Note (or increase) Custodian
---------- --------------- -------------- ----------------- ------------
-----------
2/ This should be included only if the Note is issued in global form.
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------------------------------------------------------------------------------
EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF
TRANSFER OF NOTES
Re: [Series B] 7 1/2% Senior Secured Notes due 2007 of Xxxxxxxxx
Group, Inc.
This Certificate relates to $________ principal amount of Notes held in
*_______ book-entry or *________ certificated form by _______________ (the
"Transferor").
The Transferor*:
- has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Note held by the depository a Note or
Notes in certificated, registered form of authorized denominations and an
aggregate principal amount equal to its beneficial interest in such Global Note
(or the portion thereof indicated above); or
- has requested the Trustee by written order to exchange or register the
transfer of a Note or Notes.
In connection with such request and in respect of each such Note, the
Transferor does hereby certify that Transferor is familiar with the Indenture
relating to the above captioned Notes and, as provided in Section 2.06 of such
Indenture, the transfer of this Note does not require registration under the
Securities Act (as defined below) because:*
- Such Note is being acquired for the Transferor's own account, without
transfer (in satisfaction of Section 2.06(a)(ii)(A), Section 2.06(d)(i)(A) of
the Indenture) .
- Such Note is being transferred to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933, as amended (the
"Securities Act")) in reliance on Rule 144A (in satisfaction of Section
2.06(a)(ii)(B), Section 2.06(b)(i) or Section 2.06(d)(i)(B) of the Indenture) or
pursuant to an exemption from registration in accordance with Rule 904 under the
Securities Act (in satisfaction of Section 2.06(a)(ii)(B) or Section
2.06(d)(i)(B) of the Indenture.)
- Such Note is being transferred in accordance with Rule 144 under the
Securities Act, or pursuant to an effective registration statement under the
Securities Act (in satisfaction of Section 2.06(a)(ii)(B) or Section
2.06(d)(i)(B) of the Indenture).
---------------------------------
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* Check Applicable Box
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- Such Note is being transferred in reliance on and in compliance with an
exemption from the registration requirements of the Securities Act, other than
Rule 144A, 144 or Rule 904 under the Securities Act. An Opinion of Counsel to
the effect that such transfer does not require registration under the Securities
Act accompanies this Certificate (in satisfaction of Section 2.06(a)(ii)(C) or
Section 2.06(d)(i)(C) of the Indenture).
-------------------------------------
[INSERT NAME OF TRANSFEROR]
By:
---------------------------------
Date:
-------------------------
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EXHIBIT C
TRANSFEREE LETTER OF REPRESENTATIONS
THE BANK OF NEW YORK 000 Xxxxxxx Xxxxxx 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
In connection with our proposed purchase of $_______ aggregate principal amount
of the 7 1/2% Senior Notes due 2007 (the "Notes") of XXXXXXXXX GROUP, INC., a
Delaware corporation (the "Company"):
(1) We understand that the Notes have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), and may not be sold
except as permitted in the following sentence. We agree on our own behalf and on
behalf of any investor account for which we are purchasing the Notes to offer,
sell or otherwise transfer such Notes prior to the date which is three years
after the later of the date of original issue and the last date on which the
Company or any affiliate of the Company was the owner of such Notes, or any
predecessor thereto (the "Resale Restriction Termination Date") only (a) to the
Company, (b) pursuant to a registration statement which has been declared
effective under the Securities Act, (c) for so long as the Notes are eligible
for resale pursuant to Rule 144A under the Securities Act, to a person we
reasonably believe is a qualified institutional buyer under Rule 144A (a "QIB")
that purchases for its own account or for the account of a QIB to whom notice is
given that the transfer is being made in reliance on Rule 144A, (d) pursuant to
offers and sales to non-U.S. persons that occur outside the United States within
the meaning of Regulation S under the Securities Act, (e) to an institutional
"accredited investor" within the meaning of subparagraph (a)(1), (2), (3) or (7)
of Rule 501 under the Securities Act that is acquiring the Notes for its own
account or for the account of such an institutional "accredited investor" for
investment purposes and not with a view to, or for offer for sale in connection
with, any distribution thereof in violation of the Securities Act or (f)
pursuant to any other available exemption from the registration requirements of
the Securities Act, subject in each of the foregoing cases to any requirement of
law that the disposition of our property or such investor account or accounts be
at all times within our or their control and to compliance with any applicable
state securities laws. The ongoing restrictions on resale will not apply
subsequent to the Resale Restriction Termination Date. If any resale or other
transfer of the Notes is proposed to be made pursuant to clause (e) above prior
to the Resale Restriction Termination Date, the transferor shall deliver a
letter from the
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transferee substantially in the form of this letter to the Trustee, which shall
provide, among other things, that the transferee is an institutional "accredited
investor" within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501
under the Securities Act and that it is acquiring such Notes for investment
purposes and not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act. We acknowledge that the Company
and the Trustee reserve the right prior to any offer, sale or other transfer
prior to the Resale Restriction Termination Date of the Notes pursuant to
clauses (d), (e) and (f) above to require the delivery of an opinion of counsel,
certifications and/or other information satisfactory to the Company and the
Trustee.
(2) We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) purchasing
for our own account or for the account of such an institutional "accredited
investor," and we are acquiring the Notes for investment purposes and not with a
view to, or for offer or sale in connection with, any distribution in violation
of the Securities Act and we have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our
investment in the Notes, and we and any accounts for which we are acting are
each able to bear the economic risk of our or its investment.
(3) We are acquiring the Notes purchased by us for our own account or for
one or more accounts as to each of which we exercise sole investment discretion.
(4) You are entitled to rely upon this letter and you 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 of Purchaser)
Date:
Upon transfer, the Notes should be registered in the name of new beneficial
owner as follows:
Name:
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Address:
Taxpayer ID Number:
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Exhibit D
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
-----------------, -----
The Bank of New York
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Xxxxxxxxx Group, Inc. (the "Issuer") 7 1/2%
Notes due 2007 (the "Securities")
Dear Sirs:
In connection with our proposed sale of $_________ aggregate principal
amount of the Securities, 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 Securities 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;
(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 Securities.
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You and the Issuer are entitled to rely upon this letter and are
irrevocable 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