1
Exhibit 4.1
================================================================================
XXXXXX HOLDING CO. (DE), INC.
10% Senior Subordinated Notes due 2007
----------
INDENTURE
Dated as of November 24, 1997
----------
IBJ XXXXXXXX BANK & TRUST COMPANY,
Trustee
================================================================================
2
Page
----
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions and Incorporation by Reference
------------------------------------------
SECTION 1.01. Definitions...............................................2
SECTION 1.02. Other Definitions........................................33
SECTION 1.03. Incorporation by Reference
of Trust Indenture Act...............................34
SECTION 1.04. Rules of Construction....................................35
ARTICLE II
The Securities
--------------
SECTION 2.01. Form and Dating..........................................36
SECTION 2.02. Execution and Authentication.............................37
SECTION 2.03. Registrar and Paying Agent...............................38
SECTION 2.04. Paying Agent To Hold Money in Trust......................39
SECTION 2.05. Securityholder Lists.....................................40
SECTION 2.06. Transfer and Exchange....................................40
SECTION 2.07. Replacement Securities...................................41
SECTION 2.08. Outstanding Securities...................................42
SECTION 2.09. Temporary Securities.....................................43
SECTION 2.10. Cancelation..............................................43
SECTION 2.11. Defaulted Interest.......................................43
SECTION 2.12. CUSIP Numbers............................................44
SECTION 2.13. Book-Entry Provisions for
U.S. Global Securities..............................44
SECTION 2.14. Special Transfer Provisions..............................45
ARTICLE III
Redemption
----------
SECTION 3.01. Notices to Trustee.......................................48
SECTION 3.02. Selection................................................48
SECTION 3.03. Notice...................................................49
SECTION 3.04. Effect of Notice of Redemption...........................50
SECTION 3.05. Deposit of Redemption Price..............................50
SECTION 3.06. Securities Redeemed in Part..............................50
SECTION 3.07. Optional Redemption......................................50
SECTION 3.08. No Sinking Fund..........................................52
SECTION 3.09. Repurchase Offers........................................52
i
3
Page
----
ARTICLE IV
Covenants
---------
SECTION 4.01. Payment of Securities....................................56
SECTION 4.02. Reports..................................................56
SECTION 4.03. Incurrence of Indebtedness and
Issuance of Preferred Stock.........................56
SECTION 4.04. Restricted Payments......................................60
SECTION 4.05. Dividend and Other Payment
Restrictions Affecting
Restricted Subsidiaries.............................63
SECTION 4.06. Asset Sales..............................................65
SECTION 4.07. Transactions with Affiliates.............................67
SECTION 4.08. Change of Control........................................69
SECTION 4.09. Compliance Certificate...................................69
SECTION 4.10. [INTENTIONALLY OMITTED]..................................69
SECTION 4.11. Liens....................................................69
SECTION 4.12. Additional Security Guarantees...........................69
SECTION 4.13. Business Activities......................................70
SECTION 4.14. No Senior Subordinated Debt..............................71
ARTICLE V
Successor Company
-----------------
SECTION 5.01. Merger, Consolidation or Sale of All
or Substantially All Assets of the
Company.............................................71
SECTION 5.02. Merger, Consolidation or Sale of All
or Substantially All Assets of a
Guarantor...........................................72
ARTICLE VI
Defaults and Remedies
---------------------
SECTION 6.01. Events of Default and Remedies...........................73
SECTION 6.02. Acceleration.............................................75
SECTION 6.03. Other Remedies...........................................76
SECTION 6.04. Waiver of Past Defaults..................................76
SECTION 6.05. Control by Majority......................................76
SECTION 6.06. Limitation on Suits......................................77
SECTION 6.07. Rights of Holders to
Receive Payment.....................................77
SECTION 6.08. Collection Suit by Trustee...............................78
SECTION 6.09. Trustee May File Proofs
of Claim............................................78
ii
4
Page
----
SECTION 6.10. Priorities...............................................78
SECTION 6.11. Undertaking for Costs....................................79
SECTION 6.12. Waiver of Stay or Extension
Laws................................................79
ARTICLE VII
Trustee
-------
SECTION 7.01. Duties of Trustee........................................79
SECTION 7.02. Rights of Trustee........................................81
SECTION 7.03. Individual Rights of Trustee.............................82
SECTION 7.04. Trustee's Disclaimer.....................................82
SECTION 7.05. Notice of Defaults.......................................82
SECTION 7.06. Reports by Trustee to Holders............................83
SECTION 7.07. Compensation and Indemnity...............................83
SECTION 7.08. Replacement of Trustee...................................84
SECTION 7.09. Successor Trustee by Merger..............................86
SECTION 7.10. Eligibility; Disqualification............................86
SECTION 7.11. Preferential Collection of Claims
Against Company.....................................86
ARTICLE VIII
Discharge of Indenture; Defeasance
----------------------------------
SECTION 8.01. Legal Defeasance and Covenant
Defeasance..........................................87
SECTION 8.02. Conditions to Legal or Covenant
Defeasance..........................................88
SECTION 8.03. Deposited Money and Government
Securities to be Held in Trust;
Other Miscellaneous Provisions......................90
SECTION 8.04. Repayment to Company.....................................91
SECTION 8.05. Reinstatement............................................91
SECTION 8.06. Satisfaction and Discharge of
Indenture...........................................92
ARTICLE IX
Amendments
----------
SECTION 9.01. Without Consent of Holders...............................93
SECTION 9.02. With Consent of Holders..................................94
SECTION 9.03. Compliance with Trust
Indenture Act.......................................95
iii
5
Page
----
SECTION 9.04. Revocation and Effect of Consents and
Waivers.............................................95
SECTION 9.05. Notation on or Exchange
of Securities.......................................96
SECTION 9.06. Trustee To Sign Amendments..............................96
SECTION 9.07. Payment for Consent.....................................96
ARTICLE X
Subordination
-------------
SECTION 10.01. Agreement To Subordinate................................97
SECTION 10.02. Liquidation, Dissolution,
Bankruptcy..........................................97
SECTION 10.03. Default on Senior Indebtedness..........................98
SECTION 10.04. Acceleration of Payment
of Securities.......................................99
SECTION 10.05. When Distribution Must
Be Paid Over........................................99
SECTION 10.06. Subrogation.............................................99
SECTION 10.07. Relative Rights.........................................99
SECTION 10.08. Subordination May Not Be
Impaired by Company................................100
SECTION 10.09. Rights of Trustee and
Paying Agent.......................................100
SECTION 10.10. Distribution or Notice to
Representative.....................................100
SECTION 10.11. Article X Not To Prevent
Events of Default or Limit
Right To Accelerate................................101
SECTION 10.12. Trust Moneys Not Subordinated..........................101
SECTION 10.13. Trustee Entitled To Rely...............................101
SECTION 10.14. Trustee to Effectuate
Subordination......................................102
SECTION 10.15. Trustee Not Fiduciary for Holders
of Senior Indebtedness.............................102
SECTION 10.16. Reliance by Holders of Senior
Indebtedness on Subordination
Provisions.........................................102
SECTION 10.17. Trustee's Compensation
Not Prejudiced.....................................102
ARTICLE XI
Security Guarantees
-------------------
SECTION 11.01. Security Guarantees....................................103
iv
6
Page
----
SECTION 11.02. Limitation on Liability................................105
SECTION 11.03. Successors and Assigns.................................106
SECTION 11.04. No Waiver..............................................106
SECTION 11.05. Modification...........................................106
ARTICLE XII
Subordination of the Security Guarantees
----------------------------------------
SECTION 12.01. Agreement To Subordinate...............................107
SECTION 12.02. Liquidation, Dissolution,
Bankruptcy.........................................107
SECTION 12.03. Default on Senior Indebtedness
of a Guarantor.....................................107
SECTION 12.04. Demand for Payment.....................................109
SECTION 12.05. When Distribution Must Be
Paid Over..........................................109
SECTION 12.06. Subrogation............................................109
SECTION 12.07. Relative Rights........................................109
SECTION 12.08. Subordination May Not Be
Impaired by a Guarantor............................110
SECTION 12.09. Rights of Trustee and
Paying Agent.......................................110
SECTION 12.10. Distribution or Notice to
Representative.....................................110
SECTION 12.11. Article XII Not To Prevent
Events of Default or Limit
Right To Accelerate................................111
SECTION 12.12. Trustee Entitled To Rely...............................111
SECTION 12.13. Trustee to Effectuate
Subordination......................................111
SECTION 12.14. Trustee Not Fiduciary for Holders
of Senior Indebtedness of a
Guarantor..........................................112
SECTION 12.15. Reliance by Holders of Senior
Indebtedness of a Guarantor on
Subordination Provisions...........................112
ARTICLE XIII
Miscellaneous
-------------
SECTION 13.01. Trust Indenture Act Controls...........................112
SECTION 13.02. Notices................................................112
SECTION 13.03. Communication by Holders with Other
Holders............................................113
SECTION 13.04. Certificate and Opinion as to
Conditions Precedent...............................114
v
7
Page
----
SECTION 13.05. Statements Required in Certificate
or Opinion.........................................114
SECTION 13.06. When Securities Disregarded............................114
SECTION 13.07. Rules by Trustee, Paying Agent and
Registrar..........................................115
SECTION 13.08. Legal Holidays.........................................115
SECTION 13.09. Governing Law..........................................115
SECTION 13.10. No Recourse Against Others.............................115
SECTION 13.11. Successors.............................................115
SECTION 13.12. Multiple Originals.....................................115
SECTION 13.13. Table of Contents; Headings............................116
Exhibit A - Form of Initial Security
Exhibit B - Form of Exchange Security
Exhibit C - Form of Private Exchange Security
Exhibit D - Form of Transferee Letter of Representation
Exhibit E - Form of Supplemental Indenture
Exhibit F - Form of Certificate to be Delivered in
Connection with Transfers Pursuant to
Rule 144A
Exhibit G - Form of Certificate to be Delivered in
Connection with Transfers pursuant to
Regulation S
vi
8
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- -------
310(a)(1) ................................................ 7.10
(a)(2) ................................................ 7.10
(a)(3) ................................................ N.A.
(a)(4) ................................................ N.A.
(b) ................................................ 7.08; 7.10
(c) ................................................ N.A.
311(a) ................................................ 7.11
(b ................................................ 7.11
(c) ................................................ N.A.
312(a) ................................................ 2.05
(b) ................................................ 13.03
(c) ................................................ 13.03
313(a) ................................................ 7.06
(b)(1) ................................................ N.A.
(b)(2) ................................................ 7.06
(c) ................................................ 13.02
(d) ................................................ 7.06
314(a) ................................................ 4.02; 4.09
(b) ................................................ N.A.
(c)(1) ................................................ 13.04
(c)(2) ................................................ 13.04
(c)(3) ................................................ 13.04
(d) ................................................ N.A.
(e) ................................................ 13.05
(f) ................................................ N.A.
315(a) ................................................ 7.01
(b) ................................................ 7.05; 13.02
(c) ................................................ 7.01
(d) ................................................ 7.0
(e) ................................................ 6.11
316(a)(last
sentence) ................................................ 13.06
(a)(1)(A) ................................................ 6.05
(a)(1)(B) ................................................ 6.04
(a)(2) ................................................ N.A.
(b) ................................................ 6.07317
(a)(1) ................................................ 6.08
(a)(2) ................................................ 6.09
(b) ................................................ 2.04
318(a) ................................................ 13.01
N.A. means Not Applicable.
---------------------
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
vii
9
INDENTURE dated as of November 24, 1997,
among XXXXXX HOLDING CO. (DE), INC., a Delaware
corporation (the "Company"), XXXXXX HOLDING CO. (PA),
INC., a Pennsylvania corporation, XXXXXX CO., a
Pennsylvania corpora tion, GOLD MEDAL LADDER COMPANY,
a Pennsylvania corporation, KENTUCKY LADDER COMPANY,
a Pennsylvania corporation, FLORIDA LADDER COMPANY, a
Florida corporation, XXXXXX MANAGEMENT CO., a
Pennsylvania corporation, XXXXXX FINANCIAL INC., a
Delaware corporation, R.D. ARIZONA LADDER CORP., an
Arizona corporation, WIP TECHNOLOGIES, INC., a
Delaware corporation, ARDEE INVESTMENT CO., INC., a
Delaware corporation, OLYMPUS PROPERTIES, INC., an
Illinois corporation, PHOENIX MANAGEMENT SERVICES,
INC., a Pennsylvania corporation, as guarantors
(collectively, the "Initial Guarantors"), and IBJ
XXXXXXXX BANK & TRUST COMPANY, a New York banking
corporation (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of (i) the
Company's 10% Senior Subordinated Notes due 2007 issued on the date hereof, (ii)
any Additional Securities (as defined herein) that may be issued on any other
Issue Date (all such Securities in clauses (i) and (ii) being referred to
collectively as the "Initial Securities"), (iii) if and when issued as provided
in a Registration Rights Agreement of the Company's 10% Senior Subordinated
Notes due 2007 issued in a Registered Exchange Offer (as defined below) in
exchange for any Initial Securities (the "Exchange Securities") and (iv), if and
when issued as provided in a Registration Rights Agreement, the Private Exchange
Securities (as defined) issued in a Private Exchange Offer (as defined) (the
"Private Exchange Securities", and together with the Initial Securities and any
Exchange Securities issued hereunder, the "Securities"). Except as otherwise
provided herein, the Securities will be limited to $270,000,000 in aggregate
principal amount outstanding, of which $135,000,000 in aggregate principal
amount will be initially issued on the date hereof. Subject to the conditions
set forth herein, the Company may issue up to an additional $135,000,000
aggregate principal amount of Securities.
10
2
ARTICLE I
Definitions and Incorporation by Reference
------------------------------------------
SECTION 1.01. DEFINITIONS.
"Acquired Debt" means, with respect to any specified Person,
(i) Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Restricted Subsidiary of such specified Person,
including Indebtedness Incurred in connection with, or in contemplation of, such
other Person's merging with or into or becoming a Restricted Subsidiary of such
specified Person (provided such Person is not formed for the purpose of
Incurring such Indebtedness and is engaged in a bona fide business prior to
Incurring such Indebtedness or has material assets other than cash), and (ii)
Indebtedness secured by a Lien encumbering any asset acquired by such specified
Person.
"Additional Securities" shall mean up to $135,000,000 in
aggregate principal amount of Initial Securities initially issued subsequent to
the date hereof pursuant to Article II and in compliance with Section 4.03.
"Affiliate" of any specified Person means (i) any other
Person, directly or indirectly, controlling or controlled by or under direct or
indirect common control with such specified Person, (ii) any other Person that
owns, directly or indirectly, 5% or more of such specified Person's Voting Stock
or (iii) any Person who is a director or officer (a) of such Person, (b) of any
Subsidiary of such Person or (c) of any Person described in clause (i) or (ii)
above. 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.
"Applicable Premium" means, with respect to a Security at any
redemption date, the greater of (i) 1.0% of the principal amount of such
Security or (ii) the excess of (A) the present value at such time of (1) the
redemption price of such Security at November 15, 2002 (such redemption price
being set forth in the tables in Section 3.07) plus (2) all required interest
payments due on such Security through November 15, 2002 (excluding accrued but
unpaid
11
3
interest), computed using a discount rate equal to the Treasury Rate plus 75
basis points, over (B) the principal amount of such Security, if greater.
"Asset Sale" means (i) the sale, lease, conveyance or other
disposition of any assets or rights (including by way of a sale and leaseback)
(PROVIDED that the sale, lease, conveyance or other disposition of all or
substantially all of the assets of the Company and its Restricted Subsidiaries
taken as a whole will be governed by Section 5.01 or 5.02 and not by the
provisions of Section 4.06), and (ii) the issue or sale by the Company or any of
its Restricted Subsidiaries of Equity Interests of any of the Company's
Subsidiaries (other than director's qualifying shares), in the case of either
clause (i) or (ii), whether in a single transaction or a series of related
transactions (a) that have a fair market value in excess of $1.0 million or (b)
for net proceeds in excess of $1.0 million. Notwithstanding the foregoing, (1)
the following will not be Asset Sales: (i) a transfer of assets by the Company
to a Restricted Subsidiary or by a Restricted Subsidiary to the Company or to
another Restricted Subsidiary, (ii) an issuance of Equity Interests by a
Restricted Subsidiary to the Company or to another Restricted Subsidiary, (iii)
a contribution, transfer or other disposition of Receivables in connection with
a Receivables Facility PROVIDED consideration in an amount at least equal to
the fair market value of such Receivables is received, directly or indirectly,
by the Company or any of its Restricted Subsidiaries, PROVIDED FURTHER that all
the net cash proceeds of any Receivables Facility are remitted to the Company or
any Restricted Subsidiary, (iv) a Restricted Payment or Permitted Investment
that is permitted by Section 4.04 (including any formation of or contribution of
assets to a joint venture), (v) leases or subleases, in the ordinary course of
business, to third parties of real property owned in fee or leased by the
Company or its Subsidiaries, (vi) a disposition, in the ordinary course of
business, of a lease of real property, (vii) any disposition of property of the
Company or any of its Subsidiaries that, in the reasonable judgment of the
Company, has become uneconomic, obsolete or worn out, (viii) any disposition of
property or assets (including any disposition of inventory and any licensing
agreements) in the ordinary course of business, other than in connection with a
Receivables Facility, (ix) the sale of Cash Equivalents, Permitted Insurance
Company Investments and Investment Grade Securities, (x) any exchange of like
property pursuant to Section 1031 of the Code, and (xi) any sale of life
insurance policies to certain management personnel pursuant to the
Recapitalization Agreement in an
12
4
approximate amount not to exceed $2.0 million; and (2) subject to clause
(1)(iii), the term "Asset Sale" shall include a contribution or other transfer
of Receivables to, or a disposition of Receivables by, an Unrestricted
Subsidiary in connection with a Receivables Facility of the Company and its
Restricted Subsidiaries.
"Board of Directors" means, with respect to any Person, the
Board of Directors of such Person, or any authorized committee of the Board of
Directors of such Person.
"Business Day" means a day other than a Saturday, Sunday or
other day on which banking institutions in New York State are authorized or
required by law to close.
"Capital Lease Obligation" means, at the time any
determination thereof is to be made, the amount of the liability in respect of a
capital lease that would at such time be required to be capitalized on a balance
sheet in accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation,
corporate stock, (ii) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and (iv) any similar participation in profits and losses or equity of a
Person.
"Cash Equivalents" means (i) United States dollars, (ii)
securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof having maturities of
not more than one year from the date of acquisition, (iii) certificates of
deposit and eurodollar time deposits with maturities of one year or less from
the date of acquisition, bankers' acceptances with maturities not exceeding one
year and overnight bank deposits, in each case with any commercial bank or
trust company having capital and surplus in excess of $300 million, (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) above entered into
with any financial institution meeting the qualifications specified in clause
(iii) above, (v) commercial paper having the highest rating obtainable from
Xxxxx'x Investors Service, Inc. ("Moody's") or Standard & Poor's Ratings
Services, a division of the XxXxxx-Xxxx Companies, Inc. ("S&P") and in each case
maturing within one year after
13
5
the date of acquisition, (vi) investment funds investing 95% of their assets in
securities of the types described in clauses (ii) through (v) above, (vii)
readily marketable direct obligations issued by any state of the United States
of America or any political subdivision thereof having one of the two highest
rating categories obtainable from either Moody's or S&P and (viii) Indebtedness
with a rating of "A" or higher from S&P or "A2" or higher from Moody's.
"Change of Control" means such time as:
(i) prior to the earlier to occur of (A) the first public
offering of Voting Stock of the Company or (B) the first public
offering of Voting Stock of Holding, the Initial Control Group ceases
to be the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act), directly or indirectly, of more than 50% of the
total voting power of the Voting Stock of the Company or Holding,
whether as a result of the issuance of securities of the Company or
Holding, as the case may be, any merger, consolidation, liquidation or
dissolution of the Company or Holding, as the case may be, any direct
or indirect transfer of securities by the Initial Control Group or
otherwise (for purposes of this clause (i) and clause (ii) below, the
Initial Control Group shall be deemed to beneficially own any Voting
Stock of an entity (the "specified entity") held by any other entity
(the "parent entity") so long as the Initial Control Group beneficially
owns (as so defined), directly or indirectly, in the aggregate a
majority of the voting power of the Voting Stock of the parent entity;
(ii) following the first public offering of Voting Stock of
the Company or Holding, as the case may be, (A) any "person" (as such
term is used in Sections 13(d) and 14(d) of the Exchange Act), other
than one or more members of the Initial Control Group, is or becomes
the beneficial owner (as defined in clause (i) above, except that such
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 40% of the total voting power of the Voting
Stock of the Company or Holding, as the case may be, and (B) the
Initial Control Group "beneficially owns" (as defined in clause (i)
above), directly or indirectly, in the aggregate a lesser percentage of
the total voting power of the Voting Stock of the Company or Holding,
as the
14
6
case may be, than such other person and does not have the right or
ability by voting power, contract or otherwise to elect or designate
for election a majority of the board of directors of the Company or
Holding, as the case may be, (for purposes of this clause (ii), such
other person shall be deemed to beneficially own any Voting Stock of a
specified entity held by a parent entity, if such other person
"beneficially owns" (as defined in clause (i) above), directly or
indirectly, in the aggregate more than 40% of the voting power of the
Voting Stock of such parent entity and the Initial Control Group
"beneficially owns" (as defined in clause (i) above), directly or
indirectly, in the aggregate a lesser percentage of the voting power of
the Voting Stock of such parent entity and does not have the right or
ability by voting power, contract or otherwise to elect or designate
for election a majority of the board of directors of such parent
entity); or
(iii) any person other than the Initial Control Group, (A)(I)
nominates one or more individuals for election to the Board of
Directors of the Company or Holding, as the case may be and (II)
solicits proxies, authorization or consents in connection therewith and
(B) such number of nominees elected to serve on the Board of Directors
in such election and all previous elections after the Closing Date
represents a majority of the Board of Directors of the Company or
Holding, as the case may be, following such election.
"Closing Date" shall mean November 24, 1997.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commodity Hedging Agreements" means any futures contract or
other similar agreement or arrangement designed to protect the Company or any
Subsidiary against fluctuations in commodities prices.
"Company" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor and, for
purposes of any provision contained herein and required by the TIA, each other
obligor on the indenture securities.
"Consolidated Cash Flow" means, with respect to any Person for
any period, the Consolidated Net Income of such Person for such period (A) plus,
to the extent deducted in computing such Consolidated Net Income, (i) Fixed
Charges
15
7
and the amortization of debt issuance costs, commissions, fees and expenses of
such Person and its Restricted Subsidiaries for such period, (ii) provision for
taxes based on income or profits (including franchise taxes) of such Person and
its Restricted Subsidiaries for such period, (iii) depreciation and amortization
expense, including amortization of inventory write-up under APB 16, amortization
of intangibles (including goodwill and the non-cash costs of Interest Rate
Agreements, Commodity Hedging Agreements or Currency Agreements, license
agreements and non-competition agreements), non-cash amortization of Capital
Lease Obligations, and organization costs, (iv) non-cash expenses related to the
amortization of management fees paid on or prior to the Closing Date, (v)
expenses and charges related to any equity offering or Incurrence of
Indebtedness permitted to be Incurred by this Indenture (including any such
expenses or charges relating to the Recapitalization), (vi) the amount of any
restructuring charge or reserve, (vii) unrealized gains and losses from hedging,
foreign currency or commodities translations and transactions, (viii) expenses
consisting of internal software development costs that are expensed during the
period but could have been capitalized in accordance with GAAP, (ix) any
write-downs, write-offs, and other non-cash charges and expenses (excluding
insurance reserves), (x) the amount of any minority interest expense of
Restricted Subsidiaries, and (xi) costs of surety bonds in connection with
financing activities, and (B) minus (x) non-cash items increasing such
Consolidated Net Income for such period and (y) any cash payment or expense
(excluding cash payments on account of insurance claims) for which a reserve or
charge of the kind described in the clause (vi), (ix) or (x) above was taken
previously during such period.
"Consolidated Net Income" means, with respect to any Person
for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; PROVIDED that (i) the Net Income of any Person that is not
a Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a Restricted Subsidiary of
such Person, (ii) the Net Income of any Restricted Subsidiary (other than an
Insurance Subsidiary) shall be excluded to the extent that the declaration or
payment of dividends or similar distributions by that Restricted Subsidiary of
that Net Income is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or indirectly,
16
8
prohibited by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Restricted Subsidiary or its stockholders unless such
restriction with respect to the payment of dividends has been permanently
waived, (iii) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall be
excluded, (iv) the cumulative effect of a change in accounting principles shall
be excluded (effected either through cumulative effect adjustment or a
retroactive application, in each case, in accordance with GAAP), (v) to the
extent deducted in determining Net Income, the fees, expenses and other costs
Incurred in connection with the Recapitalization, including payments to
management contemplated by the Recapitalization Agreement, in each case, to the
extent that such fee, expense or cost was disclosed in the Offering Memorandum,
shall be excluded, (vi) any unrealized gains or losses with respect to
Investments held in the insurance business of any Restricted Subsidiary shall be
excluded and (vii) with respect to periods prior to the Closing Date,
Consolidated Net Income shall include (without duplication) (A) all adjustments
relating to MIICA investment income (loss) reflected in the calculation of
EBITDA set forth in note (d) in the Notes to Unaudited Pro Forma Condensed
Consolidated Statements of Operations set forth in "Unaudited Pro Forma
Condensed Consolidated Financial Statements" of the Offering Memorandum and (B)
all adjustments relating to reductions in management compensation,
non-recurring expenses, MIICA investment income, non-recurring employee
separation charges and non-recurring private company expenses, in each case
reflected in the calculation of Adjusted EBITDA set forth in footnote (a) to the
"Summary Historical and Pro Forma Financial Information" of the Offering
Memorandum.
"Credit Facilities" means, with respect to the Company, one or
more debt facilities (including the New Credit Facility) or commercial paper
facilities with banks, insurance companies or other institutional lenders
providing for revolving credit loans, term loans, notes, receivables financing
(including through the sale of receivables to such lenders or to special purpose
entities formed to borrow from or issue securities to such lenders against such
receivables) or letters of credit or other credit facilities, in each case, as
amended, restated, modified, renewed, refunded, replaced or refinanced in whole
or in part from time to time.
17
9
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement to which the
Company or any Subsidiary is a party or of which it is a beneficiary.
"Default" means any event that is or with the passage of time
or the giving of notice or both would be an Event of Default.
"Definitive Securities" means Securities that are in the form
of Exhibit A, Exhibit B or Exhibit C attached hereto that do not include the
Global Securities Legend therein.
"Depository" means, with respect to the Securities issuable or
issued in whole or in part in global form, the person specified in Section 2.03
as the Depository with respect to the Securities, until a successor shall have
been appointed and become such pursuant to the applicable provisions of this
Indenture, and thereafter, "Depository" shall mean or include such successor.
"Designated Senior Debt" means (i) any Indebtedness
outstanding under the New Credit Facility and (ii) any other Senior Indebtedness
permitted under this Indenture the principal amount of which is $10.0 million or
more and that has been designated by the Company or any Guarantor as "Designated
Senior Debt."
"Disqualified Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event (other than as a result
of a Change of Control), matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is 91 days after the
date on which the Securities mature; PROVIDED, HOWEVER, that if such Capital
Stock is issued to any plan for the benefit of employees of the Company or its
Subsidiaries or by any such plan to such employees, such Capital Stock shall not
constitute Disqualified Stock solely because it may be required to be
repurchased by the Company in order to satisfy applicable statutory or
regulatory obligations.
"Domestic Subsidiary" means any Restricted Subsidiary of the
Company other than a Foreign Subsidiary.
"Equity Interests" means Capital Stock and all
warrants, options or other rights to acquire Capital Stock
18
10
(but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock).
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Existing Indebtedness" means Indebtedness of the Company and
its Restricted Subsidiaries (other than Indebtedness under the New Credit
Facility) in existence on the Closing Date, until such amounts are repaid.
"Fixed Charges" means, with respect to any Person for any
period, the sum, without duplication, of (i) the consolidated interest expense
of such Person and its Restricted Subsidiaries for such period, whether paid or
accrued (including amortization of original issue discount, non-cash interest
payments, the interest component of any deferred payment obligations, the
interest component of all payments associated with Capital Lease Obligations,
commissions, discounts and other fees and charges Incurred in respect of letter
of credit or bankers' acceptance financings or any Receivables Facility, and net
payments (if any) pursuant to Hedging Obligations relating to Interest Rate
Agreements or Currency Agreements with respect to Indebtedness, excluding,
however, (A) amortization of debt issuance costs, commissions, fees and
expenses, (B) customary commitment, administrative and transaction fees and
charges) and (C) expenses attributable to letters of credit or similar
arrangements supporting insurance certificates issued to customers in the
ordinary course of business, (ii) the consolidated interest expense of such
Person and its Restricted Subsidiaries that was capitalized during such period,
(iii) any interest expense on Indebtedness of another Person that is Guaranteed
by such Person or one of its Restricted Subsidiaries or secured by a Lien on
assets of such Person or one of its Restricted Subsidiaries (whether or not or,
in the case of Indebtedness of a Foreign Subsidiary, at any time after such,
Guarantee or Lien is called upon), (iv) all dividend payments, whether or not in
cash, on any series of Preferred Stock of any Restricted Subsidiary of such
Person, (v) all dividend payments, whether or not in cash, on any series of
Preferred Stock of such person other than dividend payments or accruals payable
solely in Equity Interests (other than Disqualified Stock) of such Person, in
each case, on a consolidated basis and in accordance with GAAP and (vi)
commissions, discounts and other fees and charges Incurred in connection with a
Receivables Facility of the Company or any Restricted Subsidiary.
19
11
"Fixed Charge Coverage Ratio" means with respect to any Person
for any period, the ratio of the Consolidated Cash Flow of such Person and its
Restricted Subsidiaries for such period to the Fixed Charges of such Person and
its Restricted Subsidiaries for such period. In the event that the Company or
any of its Restricted Subsidiaries Incurs, assumes, Guarantees or redeems any
Indebtedness (other than revolving credit borrowings) or issues Preferred Stock
subsequent to the commencement of the period for which the Fixed Charge
Coverage Ratio is being calculated but prior to the date on which the event for
which the calculation of the Fixed Charge Coverage Ratio is made (the
"Calculation Date"), then the Fixed Charge Coverage Ratio shall be calculated
giving pro forma effect to such Incurrence, assumption, Guarantee or redemption
of Indebtedness, or such issuance or redemption of Preferred Stock, as if the
same had occurred at the beginning of the applicable four-quarter reference
period. For purposes of making the computation referred to above, Investments in
Restricted Subsidiaries, acquisitions, dispositions, mergers and consolidations
that have been made by the Company or any of its Restricted Subsidiaries during
the four-quarter reference period or subsequent to such reference period and on
or prior to the Calculation Date, and discontinued operations determined in
accordance with GAAP on or prior to the Calculation Date, shall be given effect
on a PRO FORMA basis assuming that all such Investments in Restricted
Subsidiaries, acquisitions, dispositions, mergers and consolidations or
discontinued operations (and the reduction or increase of any associated fixed
charge obligations and the change in Consolidated Cash Flow resulting therefrom)
had occurred on the first day of the four-quarter reference period. If since the
beginning of such period any Person (that subsequently became a Restricted
Subsidiary or was merged with or into the Company or any Restricted Subsidiary
since the beginning of such period) shall have made any Investment in a
Restricted Subsidiary, acquisition, disposition, merger or consolidation or
determined a discontinued operation, that would have required adjustment
pursuant to this definition, then the Fixed Charge Coverage Ratio shall be
calculated giving PRO FORMA effect thereto for such period as if such
Investment, acquisition, disposition, merger or consolidation or discontinued
operations had occurred at the beginning of the applicable four-quarter period.
For purposes of this definition, whenever PRO FORMA effect is to be given to a
transaction, the PRO FORMA calculations shall be made in good faith by a
responsible financial or accounting officer of the Company. If any Indebtedness
to which PRO FORMA effect is given bears interest at a floating rate, the
interest expense on such Indebtedness shall be calculated as if the
20
12
rate in effect on the Calculation Date had been the applicable interest rate
for the entire period (taking into account any Interest Rate Agreement in effect
on the Calculation Date). Interest on a Capital Lease Obligation shall be deemed
to accrue at an interest rate reasonably determined by a responsible financial
or accounting officer of the Company to be the rate of interest implicit in such
Capital Lease Obligation in accordance with GAAP. Interest on Indebtedness that
may optionally be determined at an interest rate based upon a factor of a prime
or similar rate, a eurocurrency interbank offered rate, or other rate, shall be
deemed to have been based upon the rate actually chosen, or, if none, then based
upon such optional rate chosen as the Company may designate.
"Foreign Subsidiary" means any Subsidiary of the Company
formed under the laws of any jurisdiction other than the United States or any
political subdivision thereof substantially all of the assets of which are
located outside of the United States or that conducts substantially all of its
business outside of the United States.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect from time to time, including those set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession. All ratios and computations based on GAAP
contained in this Indenture shall be computed in conformity with GAAP as in
effect as of the Closing Date.
"Global Security" means a Security that is in the form of
Exhibit A, Exhibit B or Exhibit C hereto that includes the Global Securities
Legend therein.
"Global Securities Legend" means the legend set forth in the
first paragraph of Exhibit A hereto.
"Government Notes" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including letters of credit and reimbursement
21
13
agreements in respect thereof), of all or any part of any Indebtedness.
"Guarantors" means the Initial Guarantors and any other
Restricted Subsidiary of the Company that executes a supplemental indenture
pursuant to Section 4.12, and their respective successors and assigns, in each
case until released from its Security Guarantee in accordance with the terms of
this Indenture.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under Interest Rate Agreements, Currency Agreements
or Commodity Hedging Agreements.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"Holding" means Xxxxxx Holding Co. (PA), Inc.
"Incur", "Incurring" and "Incurred" means to, directly or
indirectly, create, incur, issue, assume, guarantee or otherwise become directly
or indirectly liable, contingently or otherwise; PROVIDED, HOWEVER, that any
Indebtedness or Capital Stock of a Person existing at the time such Person
becomes a subsidiary (whether by merger, consolidation, acquisition or
otherwise) shall be deemed to be incurred by such Subsidiary at the time it
becomes a Subsidiary.
"Indebtedness" means, with respect to any Person (without
duplication), (i) any indebtedness of such Person, whether or not contingent, in
respect of borrowed money or evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in respect
thereof) or banker's acceptances or representing Capital Lease Obligations or
the balance deferred and unpaid of the purchase price of any property, which
purchase price is due more than six months after the date of placing such
property in service or taking delivery thereof, 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, (ii) all
indebtedness under clause (i) of other Persons secured by a Lien on any asset of
such Person (whether or not such indebtedness is assumed by such Person) and
(iii) to the extent not otherwise included, the
22
14
Guarantee by such Person of any indebtedness under clause (i) of any other
Person; PROVIDED, HOWEVER, that Indebtedness shall not include (a) any servicing
or guarantee of servicing obligations with respect to Receivables, (b)
obligations of the Company or any of its Restricted Subsidiaries arising from
agreements of the Company or a Restricted Subsidiary providing for
indemnification, adjustment of purchase price or similar obligations, in each
case, Incurred or assumed in connection with the disposition of any business,
assets or a Subsidiary, other than Guarantees of Indebtedness Incurred by any
Person acquiring all or any portion of such business, assets or a Subsidiary for
the purpose of financing such acquisition; PROVIDED, HOWEVER, that (x) such
obligations are not reflected on the balance sheet of the Company or any
Restricted Subsidiary (contingent obligations referred to in a footnote to
financial statements and not otherwise reflected on the balance sheet will not
be deemed to be reflected on such balance sheet for purposes of this clause (x))
and (y) the maximum assumable liability in respect of all such obligations shall
at no time exceed the gross proceeds including noncash proceeds (the fair market
value of such noncash proceeds being measured at the time received and without
giving effect to any subsequent changes in value) actually received by the
Company and its Restricted Subsidiaries in connection with such disposition; or
(c) obligations in respect of performance and surety bonds and completion
guarantees provided by the Company or any Restricted Subsidiary in the ordinary
course of business. The amount of any Indebtedness outstanding as of any date
shall be (i) the accreted value thereof, in the case of any Indebtedness that
does not require current payments of interest, and (ii) the principal amount
thereof in the case of any other Indebtedness.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Initial Control Group" means Investcorp, its Affiliates,
members of the Management Group, the investors who are the initial holders of
the Capital Stock of Holding following the Recapitalization, any Person acting
in the capacity of an underwriter or initial purchaser in connection with a
public or private offering of the Company's or Holding's Capital Stock, any
employee benefit plan of Holding, the Company or any of its Subsidiaries or any
participant therein, a trustee or other fiduciary holding securities under any
such employee benefit plan or any Permitted Transferee of any of the foregoing
Persons.
23
15
"Initial Purchasers" means Chase Securities Inc., Xxxxxxxxx
Xxxxxx & Xxxxxxxx Securities Corporation and Xxxxxxx, Sachs & Co.
"Insurance Subsidiary" means MIICA and its Subsidiaries that
are engaged in the insurance business or any business incidental thereto.
"Interest Rate Agreement" means any interest rate swap
agreement, interest rate cap agreement, repurchase agreement, futures contract
or other financial agreement or arrangement designed to protect the Company or
any Subsidiary against fluctuations in interest rates.
"Investcorp" means certain affiliates of INVESTCORP S.A.
"Investment Grade Securities" means (i) securities issued or
directly and fully guaranteed or insured by the United States government or any
agency or instrumentality thereof (other than Cash Equivalents), (ii) debt
securities or debt instruments with a rating of BBB- or higher by S&P or Baa3 or
higher by Xxxxx'x or the equivalent of such rating by such rating organization,
or, if no rating of S&P or Xxxxx'x then exists, the equivalent of such rating by
any other nationally recognized securities rating agency, but excluding any debt
securities or instruments constituting loans or advances among the Company and
its Subsidiaries, and (iii) investments in any fund that invests exclusively in
investments of the type described in clauses (i) and (ii) which fund may also
hold immaterial amounts of cash pending investment and/or distribution.
"Investments" means, with respect to any Person, all
investments by such Person in other Persons (including Affiliates) in the forms
of direct or indirect loans (including Guarantees of Indebtedness or other
obligations, but excluding advances to customers in the ordinary course of
business that are recorded as accounts receivable on the balance sheet of such
Person), advances or capital contributions (excluding commission, travel,
payroll, entertainment, relocation and similar advances to officers and
employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. If the Company
or any Subsidiary of the Company sells or otherwise disposes of any Equity
Interests of any direct or indirect Subsidiary of the Company such that, after
giving effect to any such sale or
24
16
disposition, such Person is no longer a Subsidiary of the Company, the Company
shall be deemed to have made an Investment on the date of any such sale or
disposition equal to the fair market value of the Equity Interests of such
Subsidiary not sold or disposed of in an amount determined as provided in the
final paragraph of Section 4.04.
"Investors" shall mean Investcorp and certain other
international investors organized by Investcorp.
"Issue Date" means the date on which any Initial Securities
are originally issued.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement or any
lease in the nature thereof); PROVIDED that in no event shall an operating lease
be deemed to constitute a Lien.
"Liquidated Damages" shall have the meaning set forth in a
Registration Rights Agreement.
"Management Group" means the senior management of the Company
or the Restricted Subsidiaries of the Company.
"MIICA" means Manufacturers Indemnity and Insurance Company of
America or any successor thereto.
"New Credit Facility" means the Credit Agreement dated as of
November 24, 1997, among the Company and the financial institutions named
therein, and any related notes, collateral documents, letters of credit and
Guarantees, including any appendices, exhibits or schedules to any of the
foregoing (as the same may be in effect from time to time), in each case, as
such agreements may be amended, modified, supplemented or restated from time to
time, or refunded, refinanced, restructured, replaced, renewed, repaid or
extended from time to time (whether with the original agents and lenders or
other agents or lenders or otherwise, and whether provided under the original
credit agreement or other credit agreements or otherwise).
"Net Income" means, with respect to any Person and any period,
the net income (or loss) of such Person for such period, determined in
accordance with GAAP and before any reduction in respect of Preferred Stock
dividends, excluding, however, (i) any extraordinary or non-recurring gains
25
17
or losses or charges and gains or losses or charges from the sale of assets
outside the ordinary course of business, together with any related provision for
taxes on such gain or loss or charges and (ii) deferred financing costs written
off in connection with the early extinguishment of Indebtedness; PROVIDED,
HOWEVER, that Net Income shall be deemed to include any increases during such
period to shareholder's equity of such Person attributable to tax benefits from
net operating losses and the exercise of stock options that are not otherwise
included in Net Income for such period.
"Net Proceeds" means the aggregate cash proceeds received by
the Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including any cash received upon the sale or other disposition of any non-cash
consideration received in any Asset Sale), net of the direct costs relating to
such Asset Sale (including legal, accounting and investment banking fees, and
brokerage and sales commissions) and any relocation expenses Incurred as a
result thereof, taxes paid or payable as a result thereof (after taking into
account any available tax credits or deductions and any tax sharing
arrangements), amounts applied to the repayment of principal, premium (if any)
and interest on Indebtedness that is not subordinated to the Securities required
(other than required by clause (a) of the second paragraph of Section 4.06) to
be paid as a result of such transaction, all distributions and other payments
required to be made to minority interest holders in Subsidiaries or joint
ventures as a result of such Asset Sale, and any deduction of appropriate
amounts to be provided by the Company as a reserve in accordance with GAAP
against any liabilities associated with the asset disposed of in such
transaction and retained by the Company after such sale or other disposition
thereof, including pension and other post-employment benefit liabilities and
liabilities related to environmental matters or against any indemnification
obligations associated with such transaction.
"Non-Recourse Debt" means Indebtedness (i) as to which neither
the Company nor any of its Restricted Subsidiaries (a) provides credit support
of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness) or (b) is directly or indirectly liable (as a guarantor
or otherwise); and (ii) no default with respect to which (including any rights
that the holders thereof may have to take enforcement action against an
Unrestricted Subsidiary) would permit (upon notice, lapse of time or both) any
holder of any other Indebtedness (other than the Securities being offered
hereby) of the Company or
26
18
any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity; and (iii) as to which the lenders have been notified in
writing that they will not have any recourse to the stock or assets of the
Company or any of its Restricted Subsidiaries; PROVIDED that, notwithstanding
the foregoing, the Company and any of its other Subsidiaries that sell
Receivables to the Person Incurring such Indebtedness shall be allowed to
provide such representations, warranties, covenants and indemnities as are
customarily required in such transactions so long as no such representations,
warranties, covenants or indemnities constitute a Guarantee of payment or
recourse against credit losses.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages, Guarantees and other liabilities
payable under the documentation governing any Indebtedness, in each case
whether now or hereafter existing, renewed or restructured, whether or not from
time to time decreased or extinguished and later increased, created or Incurred,
whether or not arising on or after the commencement of a proceeding under Title
11, U.S. Code or any similar federal or state law for the relief of debtors
(including post-petition interest) and whether or not allowed or allowable as a
claim in any such proceeding.
"Offering Memorandum" shall mean the offering memorandum dated
November 14, 1997, relating to the sale of $135,000,000 aggregate principal
amount of the Initial Securities.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary, or any Assistant Secretary of
the Company.
"Officers' Certificate" means a certificate signed by two
Officers.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee. The counsel may be an
employee of or counsel to the Company or the Trustee.
"Pari Passu Indebtedness" means any Indebtedness of the
Company or any Guarantor that ranks PARI PASSU with the Securities or the
Security Guarantee of such Guarantor, as applicable.
27
19
"Payment" means, with respect to the Securities, any payment,
whether in cash or other assets or property, of interest, principal (including
redemption price and purchase price), premium, Liquidated Damages or any other
amount on, of or in respect of the Securities, any other acquisition of
Securities and any deposit into the trust described in Article VIII. The verb
"pay" has a correlative meaning.
"Permitted Business" means the climbing equipment, extruded
products and fabricated products businesses and any other business reasonably
related, complementary or incidental to any of those businesses (including any
related insurance business).
"Permitted Insurance Company Investments" means Investments in
(a) Cash Equivalents; (b) Investment Grade Securities; and (c) other types of
debt and equity securities, real estate or other Investments; PROVIDED,
HOWEVER, that (i) the aggregate amount of all Permitted Insurance Company
Investments referred to in clause (c) shall not, at the time any such Investment
is made, exceed 40% of all outstanding Permitted Insurance Company Investments,
and (ii) MIICA shall at all times have an investment policy approved from time
to time by the Board of Directors of the Company or MIICA pursuant to which all
Permitted Insurance Company Investments shall be required to be made.
"Permitted Investments" means (a) any Investment in the
Company or in a Restricted Subsidiary (including in any Equity Interests of a
Restricted Subsidiary); (b) any Investment in Cash Equivalents or Investment
Grade Securities; (c) any Investment by the Company or any Restricted Subsidiary
of the Company in a Person, if as a result of such Investment (i) such Person
becomes a Restricted Subsidiary or (ii) such Person, in one transaction or a
series of substantially concurrent related transactions, is merged, consolidated
or amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Restricted Subsidiary; (d)
any securities received or other Investments made as a result of the receipt of
non-cash consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.06 or in connection with any other disposition of
assets not constituting an Asset Sale; (e) any acquisition of assets solely in
exchange for the issuance of Equity Interests (other than Disqualified Stock) of
the Company or Holding; (f) any Investments relating to a Receivables
Subsidiary; (g) loans or advances to employees (or guarantees of third party
loans to employees) in the ordinary course of business; (h) stock,
28
20
obligations or securities received in satisfaction of judgments or settlement of
debts; (i) receivables owing to the Company or any Restricted Subsidiary, if
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms (including such
concessionary terms as the Company or such Restricted Subsidiary deems
reasonable); (j) any Investment existing on the Closing Date; (k) Investments in
Interest Rate Agreements, Currency Agreements and Commodity Hedging Agreements
otherwise permitted under this Indenture; (l) any transaction to the extent it
constitutes an Investment that is permitted and made in accordance with Section
4.07(b)(13); (m) any Investment in a Permitted Business having an aggregate fair
market value, taken together with all other Investments made pursuant to this
clause (m) that are at that time outstanding, not to exceed 15.0% of Total
Assets at the time of such Investment (with the fair market value of each
Investment being measured at the time made and without giving effect to
subsequent changes in value); (n) Permitted Insurance Company Investments; and
(o) additional Investments having an aggregate fair market value, taken together
with all other Investments made pursuant to this clause (o) that are at that
time outstanding, not to exceed 10.0% of Total Assets at the time of such
Investment (with the fair market value of each Investment being measured at the
time made and without giving effect to subsequent changes in value).
"Permitted Junior Securities" shall mean debt or equity
securities of the Company, any Guarantor or any successor corporation to the
Company or such Guarantor issued pursuant to a plan of reorganization or
readjustment of the Company or such Guarantor that are subordinated to the
payment of all then outstanding Senior Indebtedness of the Company or such
Guarantor, as applicable, at least to the same extent that (i), in the case of
the Company, the Securities are subordinated to the payment of all Senior
Indebtedness of the Company on the Closing Date, and (ii) in the case of such
Guarantor, that the Security Guarantee of such Guarantor is subordinated to the
payment of Senior Indebtedness of such Guarantor on the Closing Date, so long as
(i) the effect of the use of this defined term in Article X and XII is not to
cause the Securities or the Security Guarantee, as applicable, to be treated as
part of (a) the same class of claims as the Senior Indebtedness of the Company
or such Guarantor, as applicable, or (b) any class of claims PARI PASSU with, or
senior to, the Senior Indebtedness of the Company or such Guarantor, as
applicable, for any payment or distribution in any case or proceeding or similar
event relating to the liquidation,
29
21
insolvency, bankruptcy, dissolution, winding up or reorganization of the Company
or such Guarantor and (ii) to the extent that any Senior Indebtedness of the
Company or such Guarantor, as applicable, outstanding on the date of
consummation of any such plan of reorganization or readjustment are not paid in
full in cash on such date, either (a) the holders of any such Senior
Indebtedness not so paid in full in cash have consented to the terms of such
plan of reorganization or readjustment or (b) such holders receive securities
which constitute Senior Indebtedness of the Company or such Guarantor, as
applicable, and which have been determined by the relevant court to constitute
satisfaction in full in money or money's worth of any Senior Indebtedness of the
Company or such Guarantor, as applicable, not paid in full in cash.
"Permitted Liens" means (i) Liens securing Senior Indebtedness
of the Company or a Restricted Subsidiary that was permitted by the terms of
this Indenture to be Incurred; (ii) Liens in favor of the Company or any
Restricted Subsidiary; (iii) Liens on property of a Person existing at the time
such Person is merged into or consolidated with the Company or any Restricted
Subsidiary of the Company; PROVIDED that such Liens were in existence prior to
the contemplation of such merger or consolidation and do not extend to any
assets other than those of the Person merged into or consolidated with the
Company or a Restricted Subsidiary, as the case may be; (iv) Liens on property
existing at the time of acquisition thereof by the Company or any Restricted
Subsidiary of the Company, PROVIDED that such Liens were in existence prior to
the contemplation of such acquisition and do not extend to any assets other than
those acquired; (v) Liens to secure the performance of bids, tenders, trade or
government contracts (other than for borrowed money), leases, licenses,
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature Incurred in the ordinary course of business; (vi)
without limitation of clause (i), Liens to secure Indebtedness (including
Capital Lease Obligations) permitted by Section 4.03(b)(iv) covering only the
assets acquired with such Indebtedness; (vii) Liens existing on the Closing
Date; (viii) 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, PROVIDED that any reserve or other appropriate provision as shall
be required in conformity with GAAP shall have been made therefor; (ix) Liens on
Receivables to reflect sales of Receivables to and by a Receivables Subsidiary
pursuant to a Receivables Facility or securing Indebtedness permitted by Section
4.03(b)(ix); (x), Liens Incurred in the ordinary
30
22
course of business of the Company or any Restricted Subsidiary of the Company
with respect to obligations that do not exceed $5.0 million at any one time
outstanding and that (a) are not Incurred in connection with the borrowing of
money or the obtaining of advances or credit (other than trade credit in the
ordinary course of business) and (b) do not in the aggregate materially detract
from the value of the property or materially impair the use thereof in the
operation of business by the Company or such Restricted Subsidiary; (xi)
carriers', warehousemen's, mechanics', landlords', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business in respect of
obligations that are not yet due or that are bonded or that are being contested
in good faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Company or such Restricted
Subsidiary, as the case may be, in accordance with GAAP; (xii) pledges or
deposits in connection with workmen's compensation, unemployment insurance and
other social security legislation; (xiii) easements (including reciprocal
easement agreements), rights-of-way, building, zoning and similar restrictions,
utility agreements, covenants, reservations, restrictions, encroachments,
changes, and other similar encumbrances or title defects Incurred pursuant to
this Indenture, or leases or subleases granted to others, in the ordinary course
of business, that do not in the aggregate materially detract from the aggregate
value of the properties of the Company and its Subsidiaries, taken as a whole,
or in the aggregate materially interfere with or adversely affect in any
material respect the ordinary conduct of the business of the Company and its
Subsidiaries on the properties subject thereto, taken as a whole; (xiv) Liens on
goods (and the proceeds thereof) and documents of title and the property
covered thereby securing Indebtedness in respect of commercial letters of
credit; (xv) (A) mortgages, liens, security interests, restrictions,
encumbrances or any other matters of record that have been placed by any
developer, landlord or other third party on property over which the Company or
any Restricted Subsidiary of the Company has easement rights or on any real
property leased by the Company on the Closing Date and subordination or similar
agreements relating thereto and (B) any condemnation or eminent domain
proceedings affecting any real property; (xvi) leases or subleases to third
parties; (xvii) Liens in connection with workmen's compensation obligations and
general liability exposure of the Company and its Restricted Subsidiaries;
(xviii) Liens arising by reason of a judgment, decree or court order, to the
extent not otherwise resulting in an Event of Default; (xix) Liens securing
Hedging Obligations entered into in the ordinary
31
23
course of business; (xx) without limitation of clause (i), Liens securing
Permitted Refinancing Indebtedness permitted to be Incurred pursuant to this
Indenture or amendments or renewals of Liens that were permitted to be Incurred
pursuant to this Indenture, PROVIDED, in each case, that such Liens do not
extend to an additional property or asset; and (xxi) Liens that secure
Indebtedness of a Person existing at the time such Person becomes a Restricted
Subsidiary of the Company, PROVIDED that such Liens do not extend to any assets
other than those of the Person that became a Restricted Subsidiary of the
Company.
"Permitted Refinancing Indebtedness" means any Indebtedness of
the Company or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries
Incurred in compliance with Section 4.03; PROVIDED that: (i) the principal
amount (or accreted value, if applicable) of such Permitted Refinancing
Indebtedness does not exceed the principal amount of (or accreted value, if
applicable), plus accrued interest on, the Indebtedness so extended, refinanced,
renewed, replaced, defeased or refunded (plus the amount of reasonable premium
and fees and expenses Incurred in connection therewith); (ii) in the case of
term Indebtedness, principal payments required under such Permitted Refinancing
Indebtedness have a Stated Maturity no earlier than the Stated Maturity of those
under the Indebtedness being refinanced and such Permitted Refinancing
Indebtedness has a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; (iii) if the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to the Securities, such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date of,
and is subordinated in right of payment to, the Securities on terms at least as
favorable to the Holders of Securities as those contained in the documentation
governing the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; and (iv) such Indebtedness is Incurred either by the
Company or by its Restricted Subsidiary who is the obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded.
"Permitted Transferee" means, with respect to any Person, (i)
any other Person, directly or indirectly, controlling or controlled by or under
direct or indirect
32
24
common control with such specified Person, (ii) the spouse, former spouse,
lineal descendants, heirs, executors, administrators, testamentary trustees,
legatees or beneficiaries of any such Person, (iii) a trust, the beneficiaries
of which, or a corporation or partnership or limited liability company, the
stockholders, general or limited partners or members of which, include only such
Person or his or her spouse, lineal descendants or heirs, in each case to whom
such Person has transferred the beneficial ownership of any securities of the
Company or Holding and (iv) any investment fund or investment entity that is a
subsidiary of such Person or a Permitted Transferee of such Person.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
that is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"principal" of a Security means the principal of the Security
plus the premium, if any, payable on the Security that is due or overdue or is
to become due at the relevant time.
"Private Exchange" shall have the meaning set forth in a
Registration Rights Agreement.
"Private Exchange Securities" means Securities of the Company
to be delivered in a Private Exchange pursuant to a Registration Rights
Agreement.
"Purchase Agreement" means (i) with respect to the Initial
Securities issued on the date hereof, the Purchase Agreement dated November 14,
1997, for the purchase of $135,000,000 principal amount of Initial Securities
among the Company, the Initial Guarantors and the Initial Purchasers as such
agreement may be amended, modified, or supplemented from time to time in
accordance with the terms thereof and (ii) with respect to any Additional
Securities, any purchase or underwriting agreement entered into by the Company,
any Guarantors and the initial purchasers or underwriters with respect thereto,
as such agreement may be
33
25
amended, modified or supplemented from time to time in accordance with the terms
thereof.
"Recapitalization" shall mean the recapitalization of Holding
pursuant to the Recapitalization Agreement.
"Recapitalization Agreement" shall mean that certain
Recapitalization Agreement by and between Holding and the Investors, dated
October 8, 1997, as amended and restated on October 27, 1997.
"Receivables" means, collectively, (a) the Indebtedness and
other obligations owed to the Company or any of its Subsidiaries (before giving
effect to any sale or transfer thereof pursuant to a Receivables Facility),
whether constituting an account, chattel paper, an instrument, a document or
general intangible, arising in connection with the sale of goods, insurance
and/or services by the Company or such Subsidiary, including the obligation to
pay any late fees, interest or other finance charges with respect thereto (each
of the foregoing, collectively, an "Account Receivable"), (b) all of the
Company's or such Subsidiary's interest in the goods (including returned goods),
if any, the sale of which gave rise to any Account Receivable, and all insurance
contracts with respect thereto, (c) all other security interests or Liens and
property subject thereto from time to time, if any, purporting to secure payment
of any Account Receivable, together with all financing statements and security
agreements describing any collateral securing such Account Receivable, (d) all
Guarantees, insurance and other agreements or arrangements of whatever character
from time to time supporting or securing payment of any Account Receivable,
(e) all contracts, invoices, books and records of any kind related to any
Account Receivable, (f) all cash collections in respect of, and cash proceeds
of, any of the foregoing and any and all lockboxes, lockbox accounts, collection
accounts, concentration accounts and similar accounts in or into which such
collections and cash proceeds are now or hereafter deposited, collected or
concentrated, and (g) all proceeds of any of the foregoing.
"Receivables Facility" means, with respect to any Person, any
Receivables securitization or factoring program pursuant to which such Person
receives proceeds pursuant to a sale, pledge or other encumbrance of its
Receivables. A Receivables Facility involving the sale, pledge or other
encumbrance of Receivables of, and the direct or indirect receipt of the
proceeds thereof by, the Company or any Restricted Subsidiary thereof shall
constitute a Receivables
34
26
Facility of the "Company" and/or its "Restricted Subsidiaries" whether or not as
part of such securitization or factoring program such Receivables are initially
contributed or otherwise transferred to an Unrestricted Subsidiary of the
Company (and then resold or encumbered by such Unrestricted Subsidiary).
"Receivables Financing Amount" means at any date, with respect
to any Receivables Facility of any Person that does not represent an Incurrence
of Indebtedness, the sum on such date of (a) the aggregate uncollected balances
of Accounts Receivable (as defined in the definition of "Receivables")
transferred ("Transferred Receivables") in such Receivables Facility plus (b)
the aggregate amount of all collections of Transferred Receivables theretofore
received by such Person but not yet remitted to the purchaser, net of all
reserves and holdbacks retained by or for the benefit of the purchaser and net
of any interest retained by such Person and reasonable costs and expenses
(including fees and commissions and taxes other than income taxes) Incurred by
such Person in connection therewith and not payable to any Affiliate of such
Person.
"Receivables Subsidiary" means any Subsidiary created
primarily to purchase or finance the receivables of the Company and/or its
Subsidiaries pursuant to a Receivables Facility, so long as it: (a) has no
Indebtedness other than Non-Recourse Debt and (b) is a Person with respect to
which neither the Company nor any of its other Subsidiaries has any direct
obligation to maintain or preserve such Person's financial condition or to cause
such Person to achieve any specified levels of operating results other than to
act as servicer of Receivables. If, at any time, such Receivables Subsidiary
would fail to meet the foregoing requirements as a Receivables Subsidiary, it
shall thereafter cease to be a Receivables Subsidiary for purposes of this
Indenture and any Indebtedness of such Receivables Subsidiary shall be deemed to
be Incurred by a Subsidiary of the Company as of such date (and, if such
Indebtedness is not permitted to be Incurred as of such date under Section 4.03,
the Company shall be in default of such covenant).
"Registration Rights Agreement" means (i) with respect to the
Initial Securities issued on the date hereof, the Registration Rights Agreement
dated November 24, 1997, among the Company, the Initial Guarantors and the
Initial Purchasers, as such agreement may be amended, modified, or supplemented
from time to time in accordance with the terms thereof and (ii) with respect to
any Additional Securities,
35
27
any registration rights agreement entered into among the Company, any Guarantors
and the relevant initial purchasers or underwriters, as the same may be amended,
modified or supplemented from time to time in accordance with the terms thereof.
"Registered Exchange Offer" shall mean an offer made by the
Company pursuant to a Registration Rights Agreement and under an effective
registration statement under the Securities Act to exchange Exchange Securities
for outstanding Initial Securities substantially identical in all material
respects to such Initial Securities (except for the differences provided for
therein) .
"Representative" means any agent or representative in respect
of any Designated Senior Debt; provided that if, and for so long as, any
Designated Senior Debt lacks such a representative, then the Representative for
such Designated Senior Debt shall at all times constitute the holder of a
majority in outstanding principal amount of such Designated Senior Debt.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Securities Legend" means the legend set forth in
the second and third paragraphs of Exhibit A hereto.
"Restricted Subsidiary" of a Person means any Subsidiary of
the referent Person that is not an Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Company
or any Guarantor secured by a Lien.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities" has the meaning stated in the recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture. For all purposes of this Indenture, the term "Securities"
shall include any Exchange Securities and any Private Exchange Securities to be
issued and exchanged for any Initial Securities pursuant to a Registration
Rights Agreement and this Indenture. From and after the issuance of any
36
28
Additional Securities (but not for purposes of determining whether such issuance
is permitted hereunder), "Securities" shall include such Additional Securities
for purposes of this Indenture and all Exchange Securities and Private Exchange
Securities from time to time issued with respect to any Initial Securities that
constitute such Additional Securities. All Securities, including any such
Additional Securities, shall vote together as one series of Securities under
this Indenture.
"Securities Custodian" or "Custodian" means the custodian with
respect to any Global Security (as appointed by the Depository), or any
successor entity thereto covered in 2.03.
"Security Guarantee" shall mean any Guarantee of the
Securities by any Guarantor pursuant to Article XI.
"Senior Indebtedness" means (i) all Indebtedness of the
Company or any Guarantor outstanding under the New Credit Facility and all
Hedging Obligations with respect thereto, (ii) any other Indebtedness (including
Acquired Debt) permitted to be Incurred by the Company or any Guarantor pursuant
to Section 4.03, unless the instrument under which such Indebtedness is Incurred
expressly provides that it is on a parity with or subordinated in right of
payment to the Securities or the relevant Security Guarantee and (iii) all
Obligations with respect to the foregoing. Notwithstanding anything to the
contrary in the foregoing, Senior Indebtedness will not include (v) any
liability for federal, state, local or other taxes owed or owing by the Company,
(w) any Indebtedness of the Company or any Guarantor to any of its Subsidiaries
or other Affiliates (other than Indebtedness under any Credit Facility to any
such Affiliate), (x) any trade payables, (y) that portion of Indebtedness
Incurred in violation of Section 4.03 (but as to any such Indebtedness under any
Credit Facility, no such violation shall be deemed to exist for purposes of this
clause (y) if the lenders have obtained a representation from a financial
Officer of the Company to the effect that the issuance of such Indebtedness does
not violate such covenant) or (z) any Indebtedness or obligation of the Company
or any Guarantor which is expressly subordinated in right of payment to any
other Indebtedness or obligation of the Company or such Guarantor, as
applicable, including any Subordinated Indebtedness.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article I, Rule 1-02 of Regulation S-X,
promulgated pursuant to the
37
29
Securities Act, as such regulation is in effect on the Closing Date.
"Specified Affiliate Payments" means: (i) the repurchase,
redemption or other acquisition or retirement for value of any Equity Interests
of the Company or any Restricted Subsidiary of the Company, or amounts paid to
Holding on account of any such acquisition or retirement for value of any Equity
Interests of Holding, held by any future, present or former employee, director,
officer or consultant of Holding or the Company (or any of its Restricted
Subsidiaries) pursuant to any management equity subscription agreement, stock
option agreement, put agreement, stockholder agreement or similar agreement that
may be in effect from time to time; PROVIDED that the aggregate price paid for
all such repurchased, redeemed, acquired or retired Equity Interests shall not
exceed $3.0 million in any calendar year (with unused amounts in any calendar
year being carried over to succeeding calendar years subject to a maximum amount
of repurchases, redemptions or other acquisitions pursuant to this clause
(i) (without giving effect to the immediately following proviso) of $10.0
million in any calendar year) and no payment default on Senior Indebtedness or
the Securities shall have occurred and be continuing; PROVIDED FURTHER that such
amount in any calendar year may be increased by an amount not to exceed (A) the
cash proceeds received by the Company (including by way of capital contribution)
since the Closing Date from the sale of Equity Interests of Holding or the
Company to employees, directors, officers or consultants of Holding, the Company
or their respective Subsidiaries that occurs in such calendar year (it being
understood that such cash proceeds shall be included in Section 4.04(a)(3)(ii))
plus (B) the cash proceeds from key man life insurance policies received by the
Company and its Restricted Subsidiaries in such calendar year (including
proceeds from the sale of such policies to the person insured thereby); and
PROVIDED FURTHER that cancelation of Indebtedness owing to the Company from
employees, directors, officers or consultants of the Company or any of its
Subsidiaries in connection with a repurchase of Equity Interests of the Company
will not be deemed to constitute a Restricted Payment; (ii) repurchases of
Equity Interests deemed to occur upon exercise of stock options or warrants as a
result of the payment of all or a portion of the exercise price of such options
or warrants with Equity Interests; (iii) payments by the Company or Holding to
members of management of the Company and its Subsidiaries in connection with the
Recapitalization to the extent disclosed in the Offering Memorandum;
(iv) payments or other transactions permitted under Section 4.07(b)(8) and (11);
38
30
and (v) dividends, other distributions or other amounts paid by the Company to
Holding (A) in amounts equal to amounts required for Holding to pay franchise
taxes and other expenses required to maintain its corporate existence and
provide for other operating costs of up to $750,000 per fiscal year or (B) to
pay, or reimburse Holding for, the costs, fees and expenses incident to a
registration of any of the Capital Stock of Holding for a primary offering under
the Securities Act, so long as the net proceeds (after payments of additional
contingent amounts then due and payable pursuant to Section 1.1(b) of the
Recapitalization Agreement) of such offering (if it is completed) are
contributed to, or otherwise used for the benefit of, the Company.
"Stated Maturity" means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on which such
payment of interest or principal was scheduled to be paid in the documentation
governing such Indebtedness, and shall not include any contingent obligations
to repay, redeem or repurchase any such interest or principal prior to the date
scheduled for the payment thereof.
"Subordinated Indebtedness" means any Indebtedness of the
Company or any Guarantor (whether outstanding on the Closing Date or thereafter
Incurred) that is subordinate or junior in right of payment to the Securities or
the applicable Security Guarantee pursuant to written agreement.
"Subsidiary" means, with respect to any Person, (i) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of that Person (or a
combination thereof) and (ii) any partnership (a) the sole general partner or
the managing general partner of which is such Person or a Subsidiary of such
Person or (b) the only general partners of which are such Person or of one or
more Subsidiaries of such Person (or any combination thereof).
"Subsidiary Guarantors" means any Subsidiary of the Company
which Guarantees the Securities pursuant to Article XI.
39
31
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date of this Indenture.
"Total Assets" means, at any time, the total consolidated
assets of the Company and its Restricted Subsidiaries at such time. For the
purposes of Section 4.03(b)(iv), Total Assets shall be determined giving PRO
FORMA effect to the lease, acquisition, construction or improvement of the
assets being leased, acquired, constructed or improved with the proceeds of the
relevant Indebtedness.
"Transfer Restricted Securities" means Securities that bear or
are required to bear the Restricted Securities Legend.
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15(519) which has become publicly available at least two Business Days prior
to the redemption date (or, if such Statistical Release is no longer published,
any publicly available source or similar market data)) most nearly equal to the
period from the redemption date to November 15, 2002, PROVIDED, HOWEVER, that if
the period from the redemption date to November 15, 2002 is not equal to the
constant maturity of a United States Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the period from the redemption date to November 15, 2002
is less than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor.
"Trust Officer" means the Chairman of the Board, the President
or any other officer or assistant officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
40
32
"Unrestricted Subsidiary" means (i) any Receivables Subsidiary
in existence on the Closing Date, (ii) any Subsidiary that is designated by the
Board of Directors as an Unrestricted Subsidiary pursuant to a Board Resolution,
and (iii) any Subsidiary of an Unrestricted Subsidiary; but in the case of any
Subsidiary referred to in clause (ii) (or any Subsidiary of any such Subsidiary)
only to the extent that such Subsidiary: (a) except in the case of a Foreign
Subsidiary, has no Indebtedness other than Non-Recourse Debt; (b) is not party
to any agreement, contract, arrangement or understanding with the Company or any
Restricted Subsidiary of the Company unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable to the Company or
such Restricted Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company; (c) except in the case of a
Foreign Subsidiary, is a Person with respect to which neither the Company nor
any of its Restricted Subsidiaries has any direct or indirect obligation (x) to
subscribe for additional Equity Interests or (y) to maintain or preserve such
Person's financial condition or to cause such Person to achieve any specified
levels of operating results; and (d) has not Guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the Company or any of
its Restricted Subsidiaries. Any such designation by the Board of Directors
shall be evidenced to the Trustee by filing with the Trustee a certified copy of
the Board Resolution giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
conditions and was permitted by Section 4.04. If, at any time, any Unrestricted
Subsidiary referred to in clause (ii) of the first sentence of this definition
(or any Subsidiary thereof) would fail to meet the foregoing requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of such
Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary of the
Company as of such date (and, if such Indebtedness is not permitted to be
Incurred as of such date under Section 4.03, the Company shall be in default of
such covenant). The Board of Directors of the Company may at any time designate
any Unrestricted Subsidiary to be a Restricted Subsidiary; PROVIDED that such
designation shall be deemed to be an Incurrence of Indebtedness by a Restricted
Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if (i) such Indebtedness
is permitted under Section 4.03, calculated on a pro forma basis as if such
designation had occurred at the beginning of the four-quarter reference
41
33
period, and (ii) no Default or Event of Default would be in existence following
such designation.
"U.S. Government Obligations"" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the Company's option.
"Voting Stock" of any Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a
Restricted Subsidiary of such Person all of the outstanding Capital Stock or
other ownership interests of which (other than directors' qualifying shares)
shall at the time be owned by such Person or by one or more Wholly Owned
Restricted Subsidiaries of such Person and one or more Wholly Owned Restricted
Subsidiaries of such Person.
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
---- ----------
"Accredited Investors" .... 2.01(b)
"Affiliate Transaction" ... 4.07
"Asset Sale Offer" ........ 4.06
"Agent Members" ........... 2.13(a)
"automatic stay" .......... 8.02(f)
"Bankruptcy Law" .......... 6.01
"Blockage Notice" ......... 10.03
"Change of Control Offer" . 3.09(a)
"Change of Control Payment" 4.08(a)
"Covenant Defeasance" ..... 8.01(c)
42
34
"covenant defeasance option" ....... 8.01(b)
"CUSIP" ............................ 2.12
"Custodian" ........................ 6.01
"estate" ........................... 8.02(f)
"Event of Default" ................. 6.01
"Excess Proceeds" .................. 4.06
"Excess Proceeds Offer" ............ 3.09(a)
"Guaranteed Obligations" ........... 11.01
"Guarantor payment default" ........ 12.03
"Guarantor non-payment default" .... 12.03
"Guarantor Payment Blockage Notice" 12.03
"IAI" .............................. 2.01(b)
"IAI Global Security" .............. 2.01(b)
"Indemnified Party" ................ 7.07
"Legal Defeasance" ................. 8.01(b)
"legal defeasance option" .......... 8.01(b)
"Legal Holiday" .................... 13.08
"non-payment default" .............. 10.03
"Notice of Default" ................ 6.01
"Offer" ............................ 4.06
"Offer Amount" ..................... 3.09(a)
"Offer Period" ..................... 3.09(a)
"Offshore Securities Exchange Date" 2.01(c)
"Option of Holder to Elect Purchase" 3.09
"outstanding" ...................... 8.01(b)
"pay the Securities" ............... 10.03
"Paying Agent" ..................... 2.03
"Payment Blockage Notice" .......... 10.03
"Payment Blockage Period" .......... 10.03
"payment default" .................. 10.03
"Permitted Indebtedness" ........... 4.03(b)
"Physical Securities" .............. 2.01(c)
"protected purchaser" .............. 2.07
"Purchase Date" .................... 3.09(a)
"QIB" .............................. 2.01(b)
"QIB Global Security" .............. 2.01(b)
"qualified institutional buyers" ... 2.01(b)
"Registrar" ........................ 2.03
"Regulation S" ..................... 2.01(b)
"Regulation S Global Security" ..... 2.01(b)
"Repurchase Offer" ................. 3.09(a)
"Restricted Payments" .............. 4.04(a)
"Rule 144A" ........................ 2.01(b)
"Specified Affiliate Payments" ..... 4.04(a)
"Successor Company" ................ 5.01
"Trustee" .......................... 8.03
"U.S. Global Securities" ........... 2.01(b)
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST
INDENTURE ACT. This Indenture is subject to the mandatory
43
35
provisions of the TIA, which are incorporated by reference in and made a part of
this Indenture. The following TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Security holder.
"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 indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.04. 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) "including" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular;
(6) unsecured Indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness merely by virtue of its
nature as unsecured Indebtedness;
(7) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof
that would be shown on a balance sheet of the Company dated such date
prepared in accordance with GAAP and accretion of principal on
44
36
such security shall be deemed to be the Incurrence of
Indebtedness; and
(8) the principal amount of any Preferred Stock shall be (i)
the maximum liquidation value of such Preferred Stock or (ii) the
maximum mandatory redemption or mandatory repurchase price with
respect to such Preferred Stock, whichever is greater.
ARTICLE II
The Securities
--------------
SECTION 2.01. FORM AND DATING. (a) The Initial Securities
issued on the date hereof and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit A, which is hereby incorporated in and
expressly made a part of this Indenture, and as otherwise provided in this
Article II. Any Exchange Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit B, which is hereby
incorporated in and expressly made a part of this Indenture, and as otherwise
provided in this Article II. Any Private Exchange Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit C,
which is hereby incorporated in and expressly made a part of this Indenture, and
as otherwise provided in this Article II. Any Additional Securities shall be
issued in the form of either (i) Exhibit A, if such Security is a Transfer
Restricted Security, or (ii) Exhibit B, if such Security is not a Transfer
Restricted Security. The Securities may have notations, legends or endorsements
required by law, stock exchange rule, agreements to which the Company or any
Guarantor is subject, if any, or usage (provided that any such notation, legend
or endorsement is in a form acceptable to the Company). Each Security shall be
dated the date of its authentication. The terms of the Securities set forth in
Exhibit A, Exhibit B and Exhibit C are part of the terms of this Indenture. The
Securities shall be issuable only in registered form without coupons and only in
denominations of $1,000 and integral multiples thereof.
(b) The Initial Securities issued on the date hereof are being
offered and sold by the Company pursuant to the Purchase Agreement. The Initial
Securities will be offered and sold by the Initial Purchasers only (i) to
"qualified institutional buyers" (as defined in Rule 144A under the Securities
Act ("Rule 144A")) ("QIBs") and (ii) in
45
37
reliance on Regulation S under the Securities Act ("Regulation S"). Initial
Securities in the form of Additional Securities may be issued and sold as
provided in the related Purchase Agreement. After such initial offers and sales,
Initial Securities that are Transfer Restricted Securities may be transferred
to, among others, QIBS, in reliance on Regulation S and to institutional
"Accredited Investors" (within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act) ("IAIs") in accordance with certain transfer
restrictions. Initial Securities that are Transfer Restricted Securities shall
be issued initially in the form of several permanent Global Securities (with
separate CUSIP numbers) substantially in the form set forth in Exhibit A
deposited with the Trustee, as Securities Custodian, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. One or more
such Global Securities shall represent the Initial Securities sold to QIBs
(collectively, the "QIB Global Security"). One or more such Global Securities
shall represent the Initial Securities sold pursuant to Regulation S
(collectively, the "Regulation S Global Security"). One or more such Global
Securities shall represent any Initial Securities issued or subsequently
transferred to IAIs (collectively, the "IAI Global Security" and, together with
the QIB Global Security, the "U.S. Global Securities"). The aggregate principal
amount of each Global Security may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as Securities Custodian.
Transfers of Initial Securities between QIBs and IAIs and to or by purchasers
pursuant to Regulation S shall be represented by appropriate increases and
decreases to the respective amounts of the appropriate Global Securities, as
more fully provided in Section 2.14.
(c) Except as otherwise provided in the related Purchase
Agreement, Initial Securities offered and sold other than as described in the
preceding two paragraphs, if any, shall be issued in the form of permanent
certificated Securities in registered form in substantially the form set forth
in Exhibit A attached hereto without the Global Securities Legend (the "Physical
Securities").
SECTION 2.02. EXECUTION AND AUTHENTICATION. One or more
Officers of the Company shall sign the Securities by manual or facsimile
signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
46
38
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate and make available for delivery
upon a written order of the Company signed by two of its Officers (1) Initial
Securities for original issue on the date hereof in an aggregate principal
amount of $135,000,000, (2) subject to Section 4.03, Additional Securities in an
aggregate principal amount of up to $135,000,000 and (3) (A) Exchange Securities
for issue only in a Registered Exchange Offer, and (B) Private Exchange
Securities for issue only in a Private Exchange, in the case of each of (A) and
(B) pursuant to a Registration Rights Agreement and for Initial Securities for a
like principal amount of Initial Securities exchanged pursuant thereto. Such
order shall specify the amount of the Securities to be authenticated, the date
on which the original issue of Securities is to be authenticated and whether the
Securities are to be Initial Securities, Additional Securities, Exchange
Securities or Private Exchange Securities. The aggregate principal amount of
Securities outstanding at any time may not exceed $270,000,000 except as
provided in Section 2.07.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Securities. Any such appointment
shall be evidenced by an instrument signed by a Trust Officer of the Trustee, a
copy of which shall be furnished to the Company. Unless limited by the terms of
such appointment, an authenticating agent may authenticate Securities whenever
the Trustee may do so. After any such appointment, each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as any Registrar, Paying
Agent or agent for service of notices and demands.
SECTION 2.03. REGISTRAR AND PAYING AGENT. The Company shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the Securities and of their transfer and exchange. The
Company may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
47
39
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall
notify the Trustee 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
and shall be entitled to appropriate compensation therefor pursuant to Section
7.07. Either the Company or any domestically organized Wholly Owned Restricted
Subsidiary may act as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and
Paying Agent in connection with the Securities.
The Company initially appoints The Depository Trust Company to
act as Depository with respect to the Global Securities, and the Trustee shall
initially be the Securities Custodian with respect to the Global Securities.
The Company may remove any Registrar or Paying Agent upon
written notice to such Registrar or Paying Agent and to the Trustee, PROVIDED
that no such removal shall become effective until (1) acceptance of an
appointment by a successor as evidenced by an appropriate agreement entered into
by the Company and such successor Registrar or Paying Agent, as the case may be,
and delivered to the Trustee or (2) notification to the Trustee that the Trustee
shall serve as Registrar or Paying Agent until the appointment of a successor in
accordance with clause (1) above. The Registrar or Paying Agent may resign at
any time upon not less than three Business Days' prior written notice to the
Company; PROVIDED, HOWEVER, that the Trustee may resign as Paying Agent or
Registrar only if the Trustee also resigns as Trustee in accordance with Section
7.08.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST. Prior to
each due date of the principal and interest on any Security, the Company shall
deposit with the Paying Agent (or if the Company or a permitted Wholly Owned
Restricted Subsidiary is acting as Paying Agent, segregate and hold in trust for
the benefit of the Persons entitled thereto) a sum sufficient to pay such
principal and interest when so becoming due. The Company shall require each
Paying Agent (other than the Trustee) to agree in writing that the Paying Agent
shall hold in trust for the benefit of Securityholders or the Trustee all money
held by the Paying
48
40
Agent for the payment of principal of or interest on the Securities and shall
notify the Trustee in writing of any default by the Company in making any such
payment within one Business Day thereof. If the Company or a permitted Wholly
Owned Restricted Subsidiary acts as Paying Agent, it shall segregate the money
held by it as Paying Agent and hold it as a separate trust fund. The Company at
any time may require a Paying Agent to pay all money held by it to the Trustee
and to account for any funds disbursed by the Paying Agent. Upon complying with
this Section, the Paying Agent shall have no further liability for the money
delivered to the Trustee.
Any money deposited with any Paying Agent, or then held by the
Company or a permitted Wholly Owned Restricted Subsidiary in trust for the
payment of principal or interest on any Security and remaining unclaimed for two
years after such principal and interest has become due and payable shall be paid
to the Company at its request, or, if then held by the Company or a permitted
Wholly Owned Restricted Subsidiary, shall be discharged from such trust; and the
Securityholders shall thereafter, as general unsecured creditors, look only to
the Company for payment thereof, and all liability of the Paying Agent with
respect to such money, and all liability of the Company or such permitted Wholly
Owned Restricted Subsidiary as trustee thereof, shall thereupon cease.
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 Securityholders. If the Trustee is
not the Registrar, the Company shall furnish, or cause the Registrar to furnish,
to the Trustee, in writing at least five Business Days before each interest
payment date and at such other times as the Trustee may request in writing, a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Securityholders.
SECTION 2.06. TRANSFER AND EXCHANGE. The Securities shall be
issued in registered form and shall be transferable only upon the surrender of a
Security for registration of transfer. When a Security is presented to the
Registrar or a co-registrar with a request to register a transfer, the Registrar
shall register the transfer as requested if the requirements of Section 8-401 of
the Uniform Commercial Code are met. When Securities are presented to the
Registrar or a co-registrar with a request to exchange them for an equal
principal amount of Securities of other denominations, the Registrar shall make
the
49
41
exchange as requested if the same requirements are met. To permit registration
of transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Securities at the Registrar's or co-registrar's request. The
Company may require payment of a sum sufficient to pay all taxes, assessments or
other governmental charges in connection with any transfer or exchange pursuant
to this Section. The Company shall not be required to make, and the Registrar
need not register, transfers or exchanges of Securities selected for redemption
(except, in the case of Securities to be redeemed in part, the portion thereof
not to be redeemed) or transfers or exchanges of any Securities for a period of
15 days before a selection of Securities to be redeemed.
Prior to the due presentation for registration of transfer of
any Security, the Company, the Guarantors, the Trustee, the Paying Agent, the
Registrar or any co-registrar may deem and treat the Person in whose name a
Security is registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and accrued and unpaid interest and Liquidated
Damages, if any, on such Security and for all other purposes whatsoever, whether
or not such Security is overdue, and none of the Company, the Trustee, the
Paying Agent, the Registrar or any co-registrar shall be affected by notice to
the contrary.
Any Holder of a Global Security shall, by acceptance of such
Global Security, agree that transfers of beneficial interests in such Global
Security may be effected only through a book-entry system maintained by (i) the
Holder of such Global Security (or its agent) or (ii) any holder of such
beneficial interest, and that ownership of a beneficial interest in such Global
Security shall be required to be reflected in a book entry.
All Securities issued upon any transfer or exchange pursuant
to this Section 2.06 will evidence the same debt and will be entitled to the
same benefits under this Indenture as the Securities surrendered upon such
transfer or exchange.
SECTION 2.07. REPLACEMENT SECURITIES. If a mutilated Security
is surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met, such that the Holder (i)
satisfies the Company or the Trustee within a reasonable time after he has
notice of
50
42
such loss, destruction or wrongful taking and the Registrar does not register a
transfer prior to receiving such notification, (ii) makes such request to the
Company or the Trustee prior to the Security being acquired by a protected
purchaser as defined in Section 8-303 of the Uniform Commercial Code (a
"protected purchaser") and (iii) satisfies any other reasonable requirements of
the Trustee and the Company including evidence of the destruction, loss or theft
of the Security. If required by the Trustee or the Company, such Holder shall
furnish an indemnity bond sufficient in the judgment of the Trustee to protect
the Company, the Trustee, the Paying Agent, the Registrar and any co-registrar
from any loss that any of them may suffer if a Security is replaced. The Company
and the Trustee may charge the Holder for their expenses in replacing a Security
including the payment of a sum sufficient to cover any tax or other governmental
charge that may be required. In the event any such mutilated, lost, destroyed or
wrongfully taken Security has become or is about to become due and payable, the
Company in its discretion may pay such Security instead of issuing a new
Security in replacement thereof.
Every replacement Security is an additional obligation of the
Company.
The provisions of this Section 2.07 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, lost, destroyed or wrongfully taken
Securities.
SECTION 2.08. OUTSTANDING SECURITIES. Securities outstanding
at any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancelation and those described in
this Section as not outstanding. A Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases
to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Security is held by a protected purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal and interest payable on that date with respect
to the Securities (or portions thereof) to be redeemed or maturing, as the case
may be, and the Paying Agent is not prohibited from
51
43
paying such money to the Securityholders on that date pursuant to the terms of
this Indenture, then on and after that date such Securities (or portions
thereof) cease to be outstanding and interest on them ceases to accrue.
SECTION 2.09. TEMPORARY SECURITIES. Until Definitive
Securities and Global 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 considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate Definitive Securities and deliver them in exchange for temporary
Securities upon surrender of such temporary Securities at the office or agency
of the Company, without charge to the Holder.
SECTION 2.10. CANCELATION. The Company at any time may deliver
Securities to the Trustee for cancelation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment or
cancelation and deliver canceled Securities to the Company pursuant to written
direction by an Officer of the Company. The Company may not issue new Securities
to replace Securities they have redeemed, paid or delivered to the Trustee for
cancelation. The Trustee shall not authenticate Securities in place of canceled
Securities other than pursuant to the terms of this Indenture.
SECTION 2.11. DEFAULTED INTEREST. If the Company defaults in a
payment of interest on the Securities, the Company shall pay the defaulted
interest (plus interest on such defaulted interest to the extent lawful) in any
lawful manner. The Company may pay the defaulted interest to the persons who are
Securityholders on a subsequent special record date. The Company shall fix or
cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail or cause to be
mailed to each Securityholder a notice that states the special record date, the
payment date and the amount of defaulted interest to be paid.
The Company may make payment of any defaulted interest in any
other lawful manner not inconsistent with the requirements (if applicable) of
any securities exchange on which the Securities may be listed, and upon such
notice
52
44
as may be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this paragraph, such manner of
payment shall be deemed practicable by the Trustee.
SECTION 2.12. CUSIP NUMBERS. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use) and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; PROVIDED, HOWEVER, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
SECTION 2.13. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES. (a)
Each Global Security initially shall (i) be registered in the name of the
Depository for such Global Security or the nominee of such Depository and (ii)
be delivered to the Trustee as the initial Securities Custodian for such
Depository. Beneficial interests in Global Securities may be held indirectly
through members of or participants in ("Agent Members") the Depository
(including Cedel and Euroclear in the case of the Regulation S Global Security).
Agent Members shall have no rights under this Indenture with
respect to any Global Security held on their behalf by the Depository, or the
Trustee as Securities Custodian, or under such Global Security, and the
Depository may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of such Global Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depository or shall impair, as between the Depository and its
Agent Members, the operation of customary practices governing the exercise of
the rights of a Holder of any Security.
(b) Transfers of a Global Security shall be limited to
transfers of such Global Security in whole, but not in part, to the Depository,
its successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred in accordance with the rules and procedures
of the Depository (and Agent Member, if applicable) and the provisions of
Section 2.14. The Trustee
53
45
shall register the transfer of Physical Securities to all beneficial owners in
exchange for their beneficial interests in a Global Security if (i) the
Depository notifies the Company that it is unwilling or unable to continue as
Depository for such Global Security or the Depository ceases to be a clearing
agency registered under the Exchange Act, at a time when the Depository is
required to be so registered in order to act as Depository, and in each case a
successor Depository is not appointed by the Company within 90 days of such
notice or, (ii) the Company executes and delivers to the Trustee and Registrar
an Officers' Certificate stating that such Global Security shall be so
exchangeable or (iii) an Event of Default has occurred and is continuing and the
Registrar has received a request from the Depository to permit such transfers.
Notwithstanding the previous sentence, in no event shall Physical Securities be
delivered to investors who purchased Securities in reliance on Regulation S
prior to the day that is forty days after the Issue Date with respect to such
Securities.
(c) The registered holder of a Global Security may grant
proxies and otherwise authorize any person, including Agent Members and persons
that may hold interests through Agent Members, to take any action that a Holder
is entitled to take under this Indenture or the Securities.
SECTION 2.14. SPECIAL TRANSFER PROVISIONS. Unless and until a
Transfer Restricted Security is transferred or exchanged under an effective
registration statement under the Securities Act, the following provisions shall
apply:
(a) TRANSFERS TO NON-QIB IAI'S. Unless otherwise specified in
the relevant Purchase Agreement, the minimum amount of Securities that may be
purchased by an IAI that is not a QIB is $250,000. The following provisions
shall apply with respect to the registration of any proposed transfer of a
Transfer Restricted Security to any IAI that is not a QIB (other than pursuant
to Regulation S):
(i) The Registrar shall register the transfer of any Transfer
Restricted Security by a Holder if (x) the requested transfer is (I) at
least two years after the later of (A) the Issue Date with respect to
such Transfer Restricted Security and (B) the date such Transfer
Restricted Security was acquired from an affiliate of the Company and
(II) at least three months after the last date such Holder was an
affiliate of the Company or (y) the proposed transferee has delivered
to
54
46
the Registrar a letter substantially in the form set forth in Exhibit D
hereto.
(ii) If the proposed transferee is an Agent Member and the
Transfer Restricted Security to be transferred consists of a beneficial
interest in the QIB Global Security or the Regulation S Global
Security, upon receipt by the Registrar of (x) the letter, if any,
required by paragraph (i) above and (y) instructions given in
accordance with the Depository's and the Registrar's procedures
therefor, the Registrar shall reflect on its books and records the date
and an increase in the principal amount of the IAI Global Security in
an amount equal to the principal amount of the beneficial interest in
the QIB Global Security or the Regulation S Global Security to be so
transferred and the Registrar shall reflect on its books and records
the date and an appropriate decrease in the principal amount of such
QIB Global Security or Regulation S Global Security.
(b) TRANSFERS TO QIBS. The following provisions shall apply
with respect to the registration of any proposed transfer of a Transfer
Restricted Security to a QIB (other than pursuant to Regulation S):
(i) The Registrar shall register the transfer of a Transfer
Restricted Security by a Holder if (x) the requested transfer is(I) at
least two years after the later of (A) the Issue Date with respect to
such Transfer Restricted Security and (B) the date such Transfer
Restricted Security was acquired from an affiliate of the Company and
(II) at least three months after the last date such Holder was an
affiliate of the Company or (y) such transfer is being made by a
proposed transferor who has provided the Registrar with a letter
substantially in the form set forth in Exhibit F hereto.
(ii) If the proposed transferee is an Agent Member and the
Transfer Restricted Security to be transferred consists of an interest
in the IAI Global Security or the Regulation S Global Security, upon
receipt by the Registrar of (x) the letter, if any, required by
paragraph (i) above and (y) instructions given in accordance with the
Depositary's and the Registrar's procedures therefor, the Registrar
shall reflect on its books and records the date and an increase in the
principal amount of the QIB Global Security in an amount equal to the
principal amount of
55
47
the beneficial interest in the IAI Global Security or the Regulation S
Global Security to be so transferred, and the Registrar shall reflect
on its books and records the date and an appropriate decrease in the
principal amount of such IAI Global Security or Regulation S Global
Security.
(c) TRANSFERS PURSUANT TO REGULATION S. The following
provisions shall apply with respect to registration of any proposed transfer of
a Transfer Restricted Security pursuant to Regulation S:
(i) The Registrar shall register any proposed transfer of a
Transfer Restricted Security by a Holder if (x) the requested transfer
is at least two years after the Issue Date with respect to such
Transfer Restricted Security and at least three months after the last
date such Holder was an affiliate of the Company or (y) upon receipt of
a letter substantially in the form set forth in Exhibit G hereto from
the proposed transferor.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in a U.S. Global Security, upon receipt by the
Registrar of (x) the letter, if any, required by paragraph (i) above
and (y) instructions in accordance with the Depositary's and the
Registrar's procedures therefor, the Registrar shall reflect on its
books and records the date and an increase in the principal amount of
the Regulation S Global Security in an amount equal to the principal
amount of the beneficial interest in such U.S. Global Security to be
transferred, and the Registrar shall reflect on its books and records
the date and an appropriate decrease in the principal amount of the
applicable U.S. Global Security.
(d) RESTRICTED SECURITIES LEGEND. Upon the transfer, exchange
or replacement of Securities not bearing the Restricted Securities Legend, the
Registrar shall deliver Securities that do not bear the Restricted Securities
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Restricted Securities Legend, the Registrar shall deliver only Securities that
bear the Restricted Securities Legend unless either (i) the circumstances
contemplated by paragraph (a)(i)(x), (b)(i)(x) or (c)(i)(x) of this Section
exist or (ii) there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on
56
48
transfer are required in order to maintain compliance with the provisions of the
Securities Act.
(e) GENERAL. By its acceptance of any Security bearing the
Restricted Securities Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in the
Restricted Securities Legend and agrees that it shall transfer such Security
only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to this Section 2.14. The Company
shall have the right to inspect and make copies of all such letters, notices or
other written communications at any reasonable time upon the giving of
reasonable written notice to the Registrar.
ARTICLE III
Redemption
----------
SECTION 3.01. NOTICES TO TRUSTEE. If the Company elects to
redeem Securities pursuant to Section 3.07, it shall notify the Trustee in
writing of the redemption date, the principal amount of Securities to be
redeemed and the paragraph of the Securities pursuant to which the redemption
will occur.
The Company shall give each notice to the Trustee provided for
in this Section at least 60 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein. If fewer than all the
Securities are to be redeemed, the record date relating to such redemption shall
be selected by the Company and given to the Trustee, which record date shall be
not fewer than 15 days after the date of notice to the Trustee. Any such notice
may be canceled at any time prior to notice of such redemption being mailed to
any Holder and shall thereby be void and of no effect.
SECTION 3.02. SELECTION. If less than all of the Securities
are to be redeemed at any time, selection of Securities for redemption will be
made by the Trustee in compliance with the requirements of the principal
national securities exchange, if any, on which the Securities are listed, or, if
the Securities are not so listed, on a pro rata basis, by lot or by such method
as the Trustee shall
57
49
deem fair and appropriate; PROVIDED that no Securities of $1,000 or less shall
be redeemed in part. If any Security is to be redeemed in part only, the notice
of redemption that relates to such Security shall state the portion of the
principal amount thereof to be redeemed. On and after the redemption date,
interest ceases to accrue on Securities or portions of them called for
redemption.
SECTION 3.03. NOTICE. Notices of redemption shall be mailed by
first class mail at least 30 but not more than 60 days before the redemption
date to each Holder of Securities to be redeemed at its registered address.
Notices of redemption may not be conditional. The Trustee shall notify the
Company promptly of the Securities or portions of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Securities are to be
redeemed, the certificate numbers and principal amounts of the
particular Securities to be redeemed;
(6) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, interest on Securities
(or portion thereof) called for redemption ceases to accrue on and
after the redemption date;
(7) the paragraph of the Securities pursuant to which the
Securities called for redemption are being redeemed;
(8) the CUSIP number, if any, printed on the
Securities being redeemed; and
58
50
(9) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Securities.
At the Company's request (which may be revoked at any time in
writing prior to the time at which the Trustee shall have given such notice to
the Holders), the Trustee shall give the notice of redemption in the Company's
name and at the Company's expense. In such event, the Company shall provide the
Trustee with the information required by this Section.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest and Liquidated Damages, if
any, to the redemption date; PROVIDED that if the redemption date is after a
regular record date and on or prior to the interest payment date, the accrued
interest shall be payable to the Securityholder of the redeemed Securities
registered on the relevant record date. If mailed in the manner herein, the
notice shall be conclusively presumed to have been given whether or not the
Holder receives such notice. Failure to give notice or any defect in the notice
to any Holder shall not affect the validity of the notice to any other Holder.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. Prior to 10:00 a.m.
on the redemption date, the Company shall deposit with the Paying Agent (or, if
the Company or a Wholly Owned Restricted Subsidiary is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the redemption price of and
accrued interest and Liquidated Damages, if any, on all Securities to be
redeemed on the redemption date other than Securities or portions of Securities
called for redemption that have been delivered by the Company to the Trustee for
cancelation.
SECTION 3.06. SECURITIES REDEEMED IN PART. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate for the Holder (at the Company's expense) a new Security
equal in principal amount to the unredeemed portion of the Security surrendered.
SECTION 3.07. OPTIONAL REDEMPTION. (a) Except as set forth in
Section 3.07(b) or (c), the Securities may not be redeemed prior to November 15,
2002. Thereafter, the
59
51
Securities will be subject to redemption at any time at the option of the
Company, in whole or in part, at the redemption prices (expressed as percentages
of principal amount) set forth below plus accrued and unpaid interest and
Liquidated Damages thereon, if any, to the applicable redemption date, (subject
to the right of Holders on the relevant record date to receive interest due on
the relevant interest payment date), if redeemed during the twelve-month period
beginning on November 15 of the years indicated below:
Redemption
Period Price
------ ----------
2002 105.000%
2003 103.333%
2004 101.667%
2005 and thereafter 100.000%
(b) In addition, at any time and from time to time, prior to
November 15, 2000, the Company may redeem up to 35% of the sum of (i) the
original aggregate principal amount of Securities (other than any Additional
Securities) and (ii) the original aggregate principal amount of any Additional
Securities at a redemption price of 110% of the principal amount thereof, plus
accrued and unpaid interest and Liquidated Damages thereon, if any, to the
redemption date, (subject to the right of Holders on the relevant record date to
receive interest due on the relevant interest payment date), with the net cash
proceeds of a public offering of common stock of the Company or Holding;
PROVIDED that at least 65% of the sum of (i) the original aggregate principal
amount of Securities (other than any Additional Securities) and (ii) the
original aggregate principal amount of any Additional Securities remains
outstanding immediately after the occurrence of such redemption; and PROVIDED
FURTHER that such redemption shall occur within 60 days of the date of the
closing of such public offering.
(c) At any time on or prior to November 15, 2002, the
Securities may be redeemed as a whole but not in part at the option of the
Company upon the occurrence of a Change of Control, at a redemption price equal
to 100% of the principal amount thereof plus the Applicable Premium as of, and
accrued but unpaid interest and Liquidated Damages, if any, to, the redemption
date, subject to the right of Holders on the relevant record date to receive
interest due on the relevant interest payment date. In no event may any such
redemption occur more than 90 days after the occurrence of such Change of
Control.
60
52
SECTION 3.08. NO SINKING FUND. There shall be no sinking fund
for the payment of principal on the Securities to the Securityholders.
SECTION 3.09. REPURCHASE OFFERS. (a) In the event that the
Company shall be required to commence an offer to all Holders to purchase
Securities (a "Repurchase Offer") pursuant to Section 4.06 hereof (an "Excess
Proceeds Offer") or pursuant to Section 4.08 hereof (a "Change of Control
Offer") the Company shall follow the procedures specified in this Section 3.09:
(i) Within 30 days after (A) a Change of Control (unless (1)
the Company is not required to make such offer pursuant to Section 4.08(b) or
(2) all Securities have been called for redemption pursuant to Section 3.07(c))
or (B) the Company is required to make an Asset Sale Offer pursuant to Section
4.06, the Company shall (x) commence a Repurchase Offer, which shall remain open
for a period of at least 20 Business Days following its commencement (the "Offer
Period") and (y) send, by first class mail, a notice to the Trustee and each of
the Holders which shall contain all instructions and materials necessary to
enable such Holders to tender Securities pursuant to such Repurchase Offer. The
notice, which shall govern the terms of the Repurchase Offer, shall describe the
transaction or transactions that constitute the Change of Control or Asset Sale
requiring an Asset Sale Offer, as the case may be, and shall state:
(A) that the Repurchase Offer is being made pursuant to this
Section 3.09 and Section 4.06 or 4.08, as the case may be, as
applicable;
(B) the principal amount of Securities required to be
purchased pursuant to Section 4.06, in case of an Excess Proceeds
Offer, or that the Company is required to offer to purchase all of the
outstanding principal amount of Securities, in the case of a Change of
Control Offer (such amount, the "Offer Amount"), the purchase price
and, that on the date specified in such notice (the "Purchase Date"),
which date shall be no earlier than 30 days and no later than 60 days
from the date such notice is mailed, the Company shall repurchase all
Securities validly tendered and not withdrawn pursuant to this Section
3.09 and Section 4.06 or 4.08, as applicable;
(C) that any Security not tendered or accepted for payment
shall continue to accrue interest;
61
53
(D) that, unless the Company defaults in making such payment,
Securities accepted for payment pursuant to the Repurchase Offer shall
cease to accrue interest after the Purchase Date;
(E) that Holders electing to have a Security purchased
pursuant to a Repurchase Offer may elect to have all or any portion of
such Security purchased;
(F) that Holders electing to have a Security purchased
pursuant to any Repurchase Offer shall be required to surrender the
Security, with the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Security, or such other customary documents of
surrender and transfer as the Company may reasonably request, duly
completed, or transfer by book-entry transfer, to the Company, the
Depository, or the Paying Agent at the address specified in the notice
prior to the Purchase Date;
(G) that Holders shall be entitled to withdraw their election
if the Company, the Depository or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Security the Holder
delivered for purchase and a statement that such Holder is withdrawing
its election to have such Security purchased;
(H) that, in the case of an Excess Proceeds Offer, if the
aggregate principal amount of Securities surrendered by Holders thereof
exceeds the Offer Amount, the Company shall select the Securities to be
purchased on a PRO RATA basis (based upon the outstanding principal
amount thereof), with such adjustments as may be deemed appropriate by
the Company so that only Securities in denominations of $1,000, or
integral multiples thereof, shall be purchased;
(I) that Holders whose Securities are purchased only in part
shall be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered (or transferred by
book-entry transfer); and
(J) the CUSIP number, if any, printed on the Securities being
repurchased and that no representation is made as to the correctness or
accuracy of the CUSIP
62
54
number, if any, listed in such notice or printed on the Securities.
(ii) On (or at the Company's election, before) the Purchase
Date, the Company shall, (A) to the extent lawful, accept for payment, on a PRO
RATA basis to the extent necessary in the case of an Excess Proceeds Offer, the
Securities or portions thereof tendered pursuant to the Repurchase Offer and not
theretofore withdrawn, or if Securities aggregating less than the Offer Amount
have been tendered, all Securities tendered, and shall deliver to the Trustee an
Officers' Certificate stating that such Securities or portions thereof were
accepted for payment by the Company in accordance with the terms of this Section
3.09, (B) deposit with the Paying Agent an amount equal to the payment required
in respect of all Securities or portions thereof so tendered and (C) deliver or
cause to be delivered to the Trustee the Securities so accepted together with an
Officers' Certificate stating the aggregate principal amount of Securities or
portions thereof being purchased by the Company. The Company, the Depository or
the Paying Agent, as the case may be, shall promptly (but in any case not later
than five days after the Purchase Date) mail or deliver to each tendering Holder
an amount equal to the Change of Control Payment or the payment due to each
respective Holder in respect of the Excess Proceeds Offer, as applicable, with
respect to the Securities tendered by such Holder and accepted by the Company
for purchase, and the Company shall promptly issue a new Security, and the
Trustee, upon written request from the Company, shall authenticate and mail or
deliver such new Security to such Holder, in a principal amount equal to any
unpurchased portion of the Securities so surrendered, PROVIDED that each such
new Security shall be in a principal amount of $1,000 or an integral multiple
thereof. Any Security not so accepted shall be promptly mailed or delivered by
the Company to the Holder thereof. On the Purchase Date, all Securities
purchased by the Company shall be delivered to the Trustee for cancelation. All
Securities or portions thereof purchased pursuant to the Repurchase Offer will
be canceled by the Trustee. The Company shall publicly announce the results of
the Repurchase Offer on or as soon as practicable after the Purchase Date, but
in no case more than five Business Days thereafter.
If the Company complies with the provisions of the preceding
paragraph, on and after the Purchase Date interest shall cease to accrue on the
Securities or the portions of Securities repurchased. If a Security is
repurchased on or after an interest record date but on or prior to the related
63
55
interest payment date, then any accrued and unpaid interest shall be paid to the
Person in whose name such Security was registered at the close of business on
such record date. If any Security called is not repurchased upon surrender
because of the failure of the Company to comply with the preceding paragraph,
interest shall be paid on the unpaid principal, from the Purchase Date until
such principal is paid, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in the Securities and
in Section 4.01 hereof.
(b) The Company shall comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations to
the extent such laws and regulations are applicable in connection with the
Repurchase Offer. To the extent that the provisions of any applicable securities
laws or regulations conflict with provisions of this Section 3.09, the Company
shall comply with such securities laws and regulations and shall not be deemed
to have breached its obligations under this Section by virtue thereof.
(c) Prior to complying with the provisions of this Section
3.09, but in any event within 90 days following a Change of Control Offer or
Asset Sale Offer, as applicable, the Company shall either repay all outstanding
Senior Indebtedness of the Company or obtain the requisite consents, if any,
under all agreements governing outstanding Senior Indebtedness of the Company to
permit the repurchase of Securities required by this Section 3.09 and Section
4.06 or 4.08, as applicable.
(d) Once notice of repurchase is mailed in accordance with
this Section 3.09, all Securities validly tendered and not withdrawn (or, in the
case of an Excess Proceeds Offer, if the Company is not required to repurchase
all of such Securities then the pro rata portion of such Securities that the
Company may be required to purchase pursuant to Section 3.02 and/or 4.06 hereof,
as applicable) become irrevocably due and payable on the Purchase Date at the
purchase price specified herein. A notice of repurchase may not be conditional.
(e) Other than as specifically provided in this Section 3.09
or Section 4.06 or 4.08, as applicable, any purchase pursuant to this Section
3.09 shall be made pursuant to the provisions of Sections 3.02 and 3.06 hereof.
64
56
ARTICLE IV
Covenants
---------
SECTION 4.01. PAYMENT OF SECURITIES. The Company shall
promptly pay the principal of and interest on the Securities on the dates and in
the manner provided in the Securities and in this Indenture. Unless otherwise
specified in the relevant Purchase Agreement, principal and interest shall be
considered paid on the date due if on such date the Trustee or the Paying Agent
(but only if other than the Company or a Wholly Owned Restricted Subsidiary)
holds by 11:00 a.m., New York City time, in accordance with this Indenture
available funds sufficient to pay all principal and interest then due and the
Trustee or the Paying Agent, as the case may be, is not prohibited from paying
such money to the Securityholders on that date pursuant to the terms of this
Indenture.
The Company shall pay interest on overdue principal at the
rate specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. REPORTS. Notwithstanding that the Company may
not be required to remain subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, to the extent permitted by the Exchange Act, the
Company shall file with the SEC, and provide, within 15 days after the Company
is required to file the same with the SEC, the Trustee and the Holders with the
annual reports and the information, documents and other reports that are
specified in Sections 13 and 15(d) of the Exchange Act. In the event the Company
is not permitted to file such reports, documents and information with the SEC,
the Company will provide substantially similar information to the Trustee and
the Holders, as if the Company were subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act. The Company also shall comply with the
other provisions of TIA ss. 314(a).
SECTION 4.03. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF
PREFERRED STOCK. (a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, Incur any Indebtedness
(including Acquired Debt) and the Company will not issue any Disqualified Stock
and shall not permit any of its Restricted Subsidiaries to issue any shares of
Preferred Stock; PROVIDED, HOWEVER, that the Company and its Restricted
Subsidiaries may Incur Indebtedness (including
65
57
Acquired Debt) or issue shares of Disqualified Stock and the Company's
Restricted Subsidiaries may issue Preferred Stock, if the Fixed Charge Coverage
Ratio for the Company's most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date on
which such additional Indebtedness is Incurred or such Disqualified Stock or
Preferred Stock is issued would have been at least 1.75 to 1, if such
Indebtedness is Incurred or such Disqualified Stock or Preferred Stock is issued
on or prior to November 30, 1999, and 2.00 to 1, if such Indebtedness is
Incurred or such Disqualified Stock or Preferred Stock is issued thereafter, in
each case, determined on a pro forma basis (including a pro forma application of
the net proceeds therefrom), as if the additional Indebtedness had been
Incurred, or the Disqualified Stock or Preferred Stock had been issued, as the
case may be, at the beginning of such four-quarter period.
(b) Notwithstanding Section 4.03(a), the following Incurrences
of Indebtedness are permitted (collectively, "Permitted Indebtedness"):
(i) the Incurrence by the Company or any of its Restricted
Subsidiaries of term and revolving Indebtedness and letters of credit
(with letters of credit being deemed to have a principal amount equal
to the undrawn face amount thereof) under Credit Facilities; PROVIDED
that the aggregate principal amount of all Indebtedness outstanding
pursuant to this Section 4.03(b)(i) after giving effect to such
Incurrence does not exceed an amount equal to $250.0 million;
(ii) the Incurrence by the Company and its Restricted
Subsidiaries of Existing Indebtedness;
(iii) the Incurrence by the Company of Indebtedness
represented by the Securities (other than any Additional Securities)
and by the Subsidiary Guarantors of Indebtedness represented by the
Security Guarantees;
(iv) the Incurrence by the Company or any of its Restricted
Subsidiaries of (A) Acquired Debt or (B) Indebtedness (including
Capital Lease Obligations) for the purpose of financing or refinancing
all or any part of the lease, purchase price or cost of construction or
improvement of any property (real or personal) or other assets that are
used or useful in the business of the Company or such Restricted
66
58
Subsidiary (whether through the direct purchase of assets or the
Capital Stock of any Person owning such assets and whether such
Indebtedness is owed to the seller or Person carrying out such
construction or improvement or to any third party), in an aggregate
principal amount for all Indebtedness Incurred pursuant to this Section
4.03(b)(iv), at the date of such Incurrence (including all Permitted
Refinancing Indebtedness Incurred to refund, refinance or replace any
other Indebtedness Incurred pursuant to this Section 4.03(b)(iv)) not
to exceed an amount equal to 10.0% of Total Assets; PROVIDED that, in
the case of Indebtedness exceeding $2.0 million Incurred pursuant to
this Section 4.03(b)(iv), such Indebtedness exists at the date of such
purchase or transaction or is created within 180 days thereafter;
(v) the Incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or
the net proceeds of which are used to refund, refinance or replace
Indebtedness (other than intercompany Indebtedness) permitted to be
Incurred by this Section 4.03(b);
(vi) the Incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company
and any of its Restricted Subsidiaries, including any Indebtedness
arising in connection with a Receivables Facility; PROVIDED, HOWEVER,
that (A) any subsequent issuance or transfer of Equity Interests that
results in any such Indebtedness being held by a Person other than the
Company or a Restricted Subsidiary and (B) any sale or other transfer
of any such Indebtedness to a Person that is not either the Company or
a Restricted Subsidiary shall be deemed, in each case, to constitute an
Incurrence of such Indebtedness by the Company or such Restricted
Subsidiary, as the case may be, that was not permitted by this Section
4.03(b)(vi);
(vii) the Incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are Incurred (A) for the
purpose of fixing or hedging interest rate risk with respect to any
floating rate Indebtedness that is permitted by this Section 4.03 to be
outstanding or (B) for the purpose of fixing or hedging currency
exchange rate risk or commodity price risk Incurred in the ordinary
course of business;
67
59
(viii) the Guarantee by the Company or any of the Subsidiary
Guarantors of Indebtedness of the Company or a Restricted Subsidiary of
the Company that was permitted to be Incurred by another provision of
this Section 4.03;
(ix) the Incurrence of Indebtedness secured by or financing
Receivables (including any such Indebtedness under the Credit
Facilities), PROVIDED that the aggregate principal amount of such
Indebtedness Incurred pursuant to this Section 4.03(b)(ix) does not, at
any time, exceed an amount equal to $75.0 million less the aggregate
Receivable Financing Amount of all Receivables Facilities of the
Company and its Restricted Subsidiaries;
(x) the Incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness under (or constituting reimbursement
obligations with respect to) letters of credit, surety bonds or similar
instruments issued in connection with the ordinary course of a
Permitted Business, including letters of credit in respect of workers'
compensation claims, self-insurance, and insurance written by MIICA in
connection with a Permitted Business; PROVIDED, HOWEVER, that upon the
drawing of such letters of credit or other instrument, such obligations
are reimbursed within 30 days following such drawing;
(xi) the Incurrence by Foreign Subsidiaries of Indebtedness
for working capital purposes, and by the Company or any of its
Restricted Subsidiaries of Guarantees of Indebtedness of Foreign
Subsidiaries or foreign joint ventures, PROVIDED that the aggregate
principal amount of such Indebtedness and of the Indebtedness so
Guaranteed at any time outstanding does not exceed 5% of Total Assets;
and
(xii) the Incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness (which may comprise
Indebtedness under the New Credit Facility) in an aggregate principal
amount (or accreted value, as applicable) at any time outstanding
pursuant to this Section 4.03(b)(xii) not to exceed an amount equal to
$35.0 million.
For purposes of determining compliance with this Section 4.03,
in the event that an item of Indebtedness meets the criteria of more than one of
the categories of Permitted Indebtedness described in clauses (i) through
68
60
(xii) above or is entitled to be Incurred pursuant to Section 4.03(a), the
Company shall, in its sole discretion, classify such item of Indebtedness in any
manner that complies with this Section 4.03 and such item of Indebtedness will
be treated as having been Incurred pursuant to only one of such clauses or
pursuant to Section 4.03(a); PROVIDED that all outstanding Indebtedness under
the New Credit Facility immediately following the Recapitalization shall be
deemed to have been Incurred pursuant to Sections 4.03(b)(i) and/or 4.03(b)(ix).
Accrual of interest and the accretion of accreted value will not be deemed to be
an Incurrence of Indebtedness for purposes of this Section 4.03.
SECTION 4.04. RESTRICTED PAYMENTS. (a) The Company shall not,
and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly: (i) declare or pay any dividend or make any other payment or
distribution (including any payment in connection with any merger or
consolidation) on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests (other than dividends or distributions payable in
Equity Interests (other than Disqualified Stock)); (ii) purchase, redeem or
otherwise acquire or retire for value (including in connection with any merger
or consolidation) any Equity Interests of the Company or Holding (or any
Restricted Subsidiary held by Persons other than the Company or another
Restricted Subsidiary); (iii) make any payment on or with respect to, or
purchase, redeem, defease or otherwise acquire or retire for value any
Subordinated Indebtedness, except (A) a payment of interest or principal at
Stated Maturity and (B) the purchase, repurchase or other acquisition or
retirement of Indebtedness in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case due within one
year of the date of purchase, repurchase or other acquisition or retirement; or
(iv) make any Restricted Investment (all such payments and other actions set
forth in Sections 4.04(a)(i) through 4.04(a)(iv) above being collectively
referred to as "Restricted Payments"), unless, at the time of and after giving
effect to such Restricted Payment:
(1) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(2) the Company would, at the time of such Restricted Payment
and after giving pro forma effect thereto as if such Restricted Payment
had been made at the beginning of the applicable four-quarter period,
69
61
have been permitted to Incur at least $1.00 of additional Indebtedness
pursuant to Section 4.03(a);
(3) such Restricted Payment, together with (without
duplication) the aggregate amount of all other Restricted Payments made
by the Company and its Restricted Subsidiaries after the Closing Date
(excluding Restricted Payments permitted by Sections 4.04(b)(ii),
4.04(b)(iii), 4.04(b)(iv), 4.04(b)(v) (other than clauses (i) and
(v)(A) of the definition of "Specified Affiliate Payments") and
4.04(b)(vi) but including all other Restricted Payments permitted by
Section 4.04(b)), is less than the sum (without duplication) of:
(i) 50% of the Consolidated Net Income of the
Company for the period (taken as one accounting period) from
the beginning of the fiscal quarter during which the Closing
Date occurs to the end of the Company's most recently ended
fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if such
Consolidated Net Income for such period is a deficit, less
100% of such deficit); plus
(ii) 100% of the aggregate net cash proceeds received
by the Company from the issue or sale (other than to a
Subsidiary) of, or from capital contributions with respect to,
Equity Interests of the Company (other than Disqualified
Stock), in either case after the Closing Date; plus
(iii) the aggregate principal amount (or accreted
value, if less) of Indebtedness of the Company or any
Restricted Subsidiary issued since the Closing Date (other
than to a Restricted Subsidiary) that has been converted into
Equity Interests (other than Disqualified Stock) of the
Company; plus
(iv) 100% of the aggregate net cash received by the
Company or a Restricted Subsidiary of the Company since the
Closing Date from (A) Restricted Investments, whether through
interest payments, principal payments, dividends or other
distributions and payments, or the sale or other disposition
(other than to the Company or a Restricted Subsidiary) thereof
made by the Company and its Restricted Subsidiaries or (B) a
cash
70
62
dividend from, or the sale (other than to the Company or a
Restricted Subsidiary) of the stock of, an Unrestricted
Subsidiary; and plus
(v) upon the redesignation of an Unrestricted
Subsidiary as a Restricted Subsidiary, the fair market value
of the Investments of the Company and its Restricted
Subsidiaries (other than such Subsidiary) in such Subsidiary.
(b) The provisions of Section 4.04(a) shall not prohibit:
(i) the payment of any dividend within 60 days after the date
of declaration thereof, if at said date of declaration such payment
would have complied with the provisions of this Section 4.04;
(ii) the redemption, repurchase, retirement, defeasance or
other acquisition of Equity Interests or Subordinated Indebtedness of
the Company, in exchange for, or out of the net cash proceeds of the
substantially concurrent sale (other than to a Restricted Subsidiary
of the Company) of, Equity Interests of, or a capital contribution to,
the Company (other than any Disqualified Stock); PROVIDED, that the
amount of any such net cash proceeds that are utilized for any such
redemption, repurchase, retirement, defeasance or other acquisition
shall be excluded from Section 4.04(a)(3)(ii);
(iii) the defeasance, redemption, repurchase, retirement or
other acquisition of Subordinated Indebtedness made by an exchange for,
or with the net cash proceeds from, an Incurrence of Permitted
Refinancing Indebtedness;
(iv) the payment of any dividend by a Restricted
Subsidiary of the Company to the holders of its common
Equity Interests on a pro rata basis;
(v) to the extent constituting Restricted
Payments, the Specified Affiliate Payments;
(vi) the payment of dividends, other distributions or other
amounts by the Company to Holding in amounts equal to amounts required
for Holding to pay Federal, state and local income taxes to the extent
such income taxes are attributable to the income of the Company and its
Subsidiaries; and
71
63
(vii) Restricted Payments in an aggregate amount not
to exceed $10.0 million.
The Board of Directors may designate any Restricted Subsidiary
to be an Unrestricted Subsidiary if such designation would not cause a Default.
For purposes of making such determination, all outstanding Investments by the
Company and its Restricted Subsidiaries (except to the extent repaid in cash) in
the Subsidiary so designated, to the extent they do not constitute Permitted
Investments at the time such Subsidiary became an Unrestricted Subsidiary, will
be deemed to be Restricted Payments made at the time of such designation and
will reduce the amount available for Restricted Payments under Section 4.04(a).
The amount of such outstanding Investments will be equal to the portion of the
fair market value of the net assets of any Subsidiary of the Company at the time
that such Subsidiary is designated an Unrestricted Subsidiary that is
represented by the interest of the Company and its Restricted Subsidiaries in
such Subsidiary, in each case as determined in good faith by the Board of
Directors of the Company. Such designation will only be permitted if such
Restricted Payment would be permitted at such time and if such Restricted
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
The amount of all Restricted Payments (other than cash) shall
be the fair market value on the date of the Restricted Payment of the asset(s)
or securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The fair market value of any non-cash Restricted Payment shall be determined in
good faith by the Board of Directors of the Company. For the avoidance of doubt,
it is expressly agreed that no payment or other transaction permitted by Section
4.07(b)(5), (6), (9) or (10) shall be considered a Restricted Payment for
purposes of, or otherwise restricted by, this Indenture.
SECTION 4.05. DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING RESTRICTED SUBSIDIARIES. The Company shall not, and shall not permit
any Restricted Subsidiary to, directly or indirectly, create or otherwise cause
or suffer to exist or become effective any consensual encumbrance or restriction
on the ability of any Restricted Subsidiary to (i)(a) pay dividends or make any
other distributions to the Company or any of its Restricted Subsidiaries (1) on
its Capital Stock or (2) with respect to any other interest or participation in,
or measured by, its profits, or (b) pay any Indebtedness owed to the Company or
72
64
any of its Restricted Subsidiaries, (ii) make loans or advances to the Company
or any of its Restricted Subsidiaries or (iii) transfer any of its properties or
assets to the Company or any of its Restricted Subsidiaries, except for such
encumbrances or restrictions existing under or by reason of:
(1) Existing Indebtedness;
(2) this Indenture, the Securities and the Security
Guarantees;
(3) any agreement or other instrument of a Person acquired by
the Company or any of its Restricted Subsidiaries as in effect at the
time of such acquisition (but not created in connection with or in
contemplation of such acquisition), which encumbrance or restriction is
not applicable to any Person, or the properties or assets of any
Person, other than the Person, or the property or assets of the Person,
so acquired;
(4) purchase money obligations (including Capital Lease
Obligations) for property acquired in the ordinary course of business
that impose restrictions of the nature described in clause (iii) above
on the property so acquired;
(5) restrictions created in connection with any Receivables
Facility that, in the good faith determination of the Board of
Directors or senior management of the Company, are necessary or
advisable to effect such Receivables Facility;
(6) in the case of clause (iii) above, any encumbrance or
restriction (1) that restricts in a customary manner the subletting,
assignment, or transfer of any property or asset that is subject to a
lease, license or similar contract, (2) by virtue of any transfer of,
agreement to transfer, option or right with respect to, or Lien on, any
property or assets of the Company or any Restricted Subsidiary not
otherwise prohibited by this Indenture or (3) contained in security
agreements or mortgages securing Indebtedness to the extent such
encumbrance or restrictions restrict the transfer of the property
subject to such security agreements or mortgages;
(7) contracts for the sale of assets, including any
restriction with respect to a Restricted Subsidiary
73
65
imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all of the Capital Stock or assets
of such Restricted Subsidiary pending the closing of such sale or
disposition;
(8) contractual encumbrances or restrictions in effect on the
Closing Date, including pursuant to the New Credit Facility and its
related documentation;
(9) restrictions on cash or other deposits or net worth
imposed by leases, credit agreements or other agreements entered into
in the ordinary course of business;
(10) customary provisions in joint venture agreements and
other similar agreements;
(11) any encumbrances or restrictions created with respect to
Senior Indebtedness of the Company or its Restricted Subsidiaries or
Indebtedness of Foreign Subsidiaries or Insurance Subsidiaries
permitted to be Incurred subsequent to the Closing Date pursuant to
Section 4.03; and
(12) any encumbrances or restrictions of the type referred to
in clauses (i), (ii) and (iii) above imposed by any amendments,
modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings of the contracts, instruments
or obligations referred to in clauses (1) through (12) above, provided
that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are, in the good
faith judgment of the Company, no more restrictive with respect to such
dividend and other payment restrictions than those contained in the
dividend or other payment restrictions prior to such amendment,
modification, restatement, renewal, increase, supplement, refunding,
replacement or refinancing.
SECTION 4.06. ASSET SALES. The Company shall not, and shall
not permit any of its Restricted Subsidiaries to, consummate an Asset Sale
unless (i) the Company (or the Restricted Subsidiary, as the case may be)
receives consideration at the time of such Asset Sale at least equal to the fair
market value of the assets or Equity Interests issued or sold or otherwise
disposed of and (ii) at least 75% of the consideration therefor received by the
Company or such Restricted Subsidiary is in the form of cash or Cash
74
66
Equivalents; PROVIDED that the amount of (x) any liabilities (as shown on the
Company's or such Restricted Subsidiary's most recent balance sheet), of the
Company or any Restricted Subsidiary (other than liabilities that are by their
terms subordinated to the Securities or, in the case of liabilities of a
Restricted Subsidiary, the Security Guarantee of such Subsidiary) that are
assumed by the transferee of any such assets and (y) any securities, notes or
other obligations received by the Company or any such Restricted Subsidiary from
such transferee that are converted by the Company or such Restricted Subsidiary
into cash (to the extent of the cash received) within 180 days after receipt,
shall be deemed to be cash for purposes of this provision; PROVIDED FURTHER,
HOWEVER, that clause (ii) above shall not apply to any sale of Equity Interests
of or other Investments in Unrestricted Subsidiaries.
Within 360 days after the receipt of any Net Proceeds from an
Asset Sale, the Company may apply such Net Proceeds, at its option, (a) to repay
Senior Indebtedness or Pari Passu Indebtedness (other than Indebtedness owed to
Holding, the Company or a Subsidiary of the Company, and provided that if the
Company shall so reduce Pari Passu Indebtedness, it will equally and ratably
make an Asset Sale Offer (in accordance with the procedures set forth in Section
3.09 for an Asset Sale Offer) to all Holders), (b) to invest in properties and
assets that will be used or useful in the business of the Company or any of its
Subsidiaries or (c) to the acquisition of a controlling interest in another
business, the making of a capital expenditure or the acquisition of other
assets, in each case, in the same or a similar line of business as the Company
was engaged in on the Closing Date. Pending the final application of any such
Net Proceeds, the Company may temporarily reduce borrowings under a Credit
Facility or otherwise invest such Net Proceeds in any manner that is not
prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not
applied or invested as provided in the first sentence of this paragraph will be
deemed to constitute "Excess Proceeds." When the aggregate amount of Excess
Proceeds exceeds $5.0 million, the Company shall (i) make an offer to all
Holders of Securities, and (ii) prepay, purchase or redeem (or make an offer to
do so) any other Pari Passu Indebtedness of the Company in accordance with
provisions requiring the Company to prepay, purchase or redeem such Indebtedness
with the proceeds from any Asset Sales (or offer to do so), PRO RATA in
proportion to the respective principal amounts of the Securities and such other
Indebtedness required to be prepaid, purchased or
75
67
redeemed or tendered for, in the case of the Securities pursuant to such offer
(an "Asset Sale Offer") to purchase the maximum principal amount of Securities
that may be purchased out of such PRO RATA portion of the Excess Proceeds, at an
offer price in cash in an amount equal to 100% of the principal amount thereof
plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the
date of purchase, in accordance with the procedures set forth in Section 3.09.
To the extent that the aggregate principal amount of Securities tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company
may use any remaining Excess Proceeds for general corporate purposes. Upon
completion of such offer to purchase, the amount of Excess Proceeds shall be
reset at zero.
SECTION 4.07. TRANSACTIONS WITH AFFILIATES. (a) The Company
shall not, and shall not permit any of its Restricted Subsidiaries to, make any
payment to, or sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter into
or make or amend any transaction, contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate (each of the
foregoing, an "Affiliate Transaction"), unless (i) such Affiliate Transaction is
on terms that are no less favorable to the Company or the relevant Restricted
Subsidiary than those that would have been obtained in a comparable transaction
by the Company or such Restricted Subsidiary with an unrelated Person and (ii)
the Company delivers to the Trustee (a) with respect to any Affiliate
Transaction entered into after the Closing Date involving aggregate
consideration in excess of $3.0 million, a resolution of the Board of Directors
set forth in an Officers' Certificate certifying that such Affiliate Transaction
complies with clause (i) above and that such Affiliate Transaction has been
approved by a majority of the members of the Board of Directors and (b) with
respect to any Affiliate Transaction involving aggregate consideration in excess
of $10.0 million, an opinion as to the fairness to the Holders of such Affiliate
Transaction from a financial point of view issued by an investment banking,
appraisal or accounting firm of national standing.
(b) The provisions of Section 4.07(a) shall not prohibit (and
the following shall not be deemed to be Affiliate Transactions): (1) the
provision of administrative or management services by the Company or any of its
officers to any of its Restricted Subsidiaries in the ordinary course of
business, (2) any employment agreement, collective bargaining agreement,
employee benefit plan, related trust
76
68
agreement or any similar arrangement heretofore or hereafter entered into in the
ordinary course of business, (3) transactions between or among the Company
and/or its Restricted Subsidiaries, (4) Restricted Payments that are permitted
by Section 4.04, (5) payment of compensation to employees, officers, directors
or consultants in the ordinary course of business, (6) maintenance in the
ordinary course of business (and payments required thereby) of benefit programs,
or arrangements for employees, officers or directors, including vacation plans,
health and life insurance plans, deferred compensation plans, directors' and
officers' indemnification agreements and retirement or savings plans and similar
plans, (7) loans or advances to employees (or guarantees of third party loans to
employees) in the ordinary course of business, (8) sales of Receivables to a
Receivables Subsidiary, (9) the payment of annual management, consulting and
advisory fees and related expenses to Investcorp and its Affiliates (whether or
not such Persons are Affiliates of the Company), (10) payments by the Company or
any of its Restricted Subsidiaries to Investcorp and its Affiliates (whether or
not such Persons are Affiliates of the Company) made for any financial advisory,
financing, underwriting or placement services or in respect of other investment
banking activities, including in connection with acquisitions or divestitures,
which payments are approved by the Board of Directors of the Company in good
faith, (11) any tax sharing agreement as in effect on the Closing Date and any
other agreement as in effect on the Closing Date (including the Recapitalization
Agreement) or any amendment thereto (so long as any such amendment is not
disadvantageous to the Holders in any material respect) or any transaction
contemplated thereby (including distributions by the Company to Holding to
effect the Recapitalization), (12) the payment of all fees and expenses related
to the Recapitalization, (13) transactions with customers, clients, suppliers,
or purchasers or sellers of goods or services, in each case in the ordinary
course of business and otherwise in compliance with the terms of this Indenture
which are fair to the Company or its Restricted Subsidiaries, or are on terms at
least as favorable as might reasonably have been obtained at such time from an
unaffiliated party, in each case in the reasonable determination of the Board of
Directors of the Company or the senior management thereof, and (14) Indebtedness
permitted by Section 4.03(b)(vi) or to the extent such Indebtedness is on terms
that are no less favorable to the Company or the relevant Restricted Subsidiary
than those that would have been obtained in a comparable transaction with an
unrelated Person, Section 4.03(b)(xii).
77
69
SECTION 4.08. CHANGE OF CONTROL. (a) Upon the occurrence of a
Change of Control, unless all Securities have been called for redemption
pursuant to Section 3.07, each Holder of Securities shall have the right to
require the Company to repurchase all or any part (equal to $1,000 or an
integral multiple thereof) of such Holder's Securities pursuant to a Change of
Control Offer made pursuant to Section 3.09 at an offer price in cash (the
"Change of Control Payment") equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any,
to the date of purchase.
(b) The Company shall not be required to make a Change of
Control Offer upon a Change of Control if a third party makes the Change of
Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in Section 3.09 applicable to a Change of Control Offer
made by the Company and purchases all Securities validly tendered and not
withdrawn under such Change of Control Offer.
SECTION 4.09. COMPLIANCE CERTIFICATE. The Company shall
deliver to the Trustee within 120 days after the end of each fiscal year of the
Company an Officers' Certificate stating that in the course of the performance
by the signers of their duties as Officers of the Company they would normally
have knowledge of any Default and whether or not the signers know of any Default
that occurred during such period. If they do have such knowledge, the
certificate shall describe the Default, its status and what action the Company
is taking or proposes to take with respect thereto. The Company also shall
comply with Section 314(a)(4) of the TIA.
SECTION 4.10. [INTENTIONALLY OMITTED]
SECTION 4.11. LIENS. The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, create, Incur, assume or otherwise
cause or suffer to exist or become effective any Lien of any kind securing
Indebtedness or trade payables (other than Permitted Liens) upon any of their
property or assets, now owned or hereafter acquired, unless all payments due
under this Indenture and the Securities are secured on an equal and ratable
basis with the obligations so secured until such time as such obligations are no
longer secured by a Lien.
SECTION 4.12. ADDITIONAL SECURITY GUARANTEES. All current and
future Subsidiaries of the Company other than Foreign Subsidiaries, Insurance
Subsidiaries and
78
70
Subsidiaries that have been properly designated as Unrestricted Subsidiaries in
accordance with this Indenture for so long as they continue to constitute
Unrestricted Subsidiaries, will be Guarantors in accordance with the terms of
this Indenture. Notwithstanding the foregoing, if any Foreign Subsidiary or
Insurance Subsidiary that is a Restricted Subsidiary shall Guarantee any
Indebtedness of the Company, Holding or any Domestic Subsidiary while the
Securities are outstanding, then such Foreign Subsidiary or Insurance
Subsidiary, as the case may be, shall become a Guarantor and shall execute and
deliver to the Trustee a supplemental indenture substantially in the form of
Exhibit E pursuant to which such Subsidiary shall Guarantee payment of the
Securities pursuant to Article XI. If the Company or any of its Restricted
Subsidiaries shall acquire or create another Subsidiary, other than an Insurance
Subsidiary or a Foreign Subsidiary or entity that is designated an Unrestricted
Subsidiary, after the date hereof or designate an Unrestricted Subsidiary to be
a Restricted Subsidiary, then such newly acquired, created or designated
Subsidiary, shall execute and deliver to the Trustee a supplemental indenture
substantially in the form of Exhibit E pursuant to which such Subsidiary shall
Guarantee payment of the Securities pursuant to Article XI.
SECTION 4.13. BUSINESS ACTIVITIES. The Company shall not, and
shall not permit any of its Restricted Subsidiaries to, engage in any business
other than Permitted Businesses, except to such extent as is not material to the
Company and its Restricted Subsidiaries taken as a whole. Holding will not
engage in any business other than managing its investment in the Company and any
business incidental or reasonably related thereto. For the avoidance of doubt,
and without limitation, it is expressly agreed that (i) except for the
immediately preceding sentence, none of the provisions of this Article IV shall
apply to Holding and (ii) none of (a) the Incurrence of Indebtedness or the
issuance of Capital Stock by Holding, entering into agreements incidental or
related thereto, the application of the proceeds of any such Incurrence or
issuance consistent with the first preceding sentence, and compliance by Holding
with the terms of any such agreements, (b) the making of Restricted Payments by
Holding, (c) the payment by Holding of taxes, wages and other liabilities, (d)
the preparation by Holding of financial statements and other reports, or (e)
compliance by Holding with the terms of the Recapitalization Agreement or the
stockholders agreement referred to in the Offering Memorandum shall be
considered a violation of this Section 4.13.
79
71
SECTION 4.14. NO SENIOR SUBORDINATED DEBT. The Company shall
not Incur any Indebtedness that is expressly subordinate in right of payment to
any Senior Indebtedness and senior in any respect in right of payment to the
Securities and no Guarantor shall Incur any Indebtedness that is expressly
subordinate in right of payment to any Senior Indebtedness and senior in any
respect in right of payment to the Security Guarantees.
ARTICLE V
Successor Company
-----------------
SECTION 5.01. MERGER, CONSOLIDATION OR SALE OF ALL OR
SUBSTANTIALLY ALL ASSETS OF THE COMPANY. The Company shall not consolidate or
merge with or into (whether or not the Company is the surviving corporation), or
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets in one or more related
transactions, to another Person unless:
(i) the Company is the surviving corporation or the Person
formed by or surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made is a corporation organized or existing under
the laws of the United States, any state thereof or the District of Columbia;
(ii) the Person formed by or surviving any such consolidation
or merger (if other than the Company) or the Person to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made assumes all the obligations of the Company under the Securities and this
Indenture pursuant to a supplemental indenture in a form reasonably satisfactory
to the Trustee;
(iii) immediately after such transaction no Default
or Event of Default exists; and
(iv) except in the case of a merger of the Company with or
into a Wholly Owned Restricted Subsidiary of the Company, the Company or the
Person formed by or surviving any such consolidation or merger (if other than
the Company), or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made will, at the time of such transaction and
after giving pro forma effect thereto as if such transaction had occurred at the
beginning of the applicable four-quarter period, either
80
72
(x) be permitted to Incur at least $1.00 of additional Indebtedness pursuant to
Section 4.03(a) or (y) have a Fixed Charge Coverage Ratio at least equal to the
Fixed Charge Coverage Ratio of the Company for such four-quarter reference
period.
Notwithstanding clauses (iii) and (iv) above, (a) any
Restricted Subsidiary may consolidate with, merge into or transfer all or part
of its properties and assets to the Company, and (b) the Company may merge with
an Affiliate incorporated solely for the purpose of reincorporating the Company
in another jurisdiction.
SECTION 5.02. MERGER, CONSOLIDATION OR SALE OF ALL OR
SUBSTANTIALLY ALL ASSETS OF A GUARANTOR. No Guarantor may consolidate with or
merge with or into (whether or not such Guarantor is the surviving Person)
another Person (other than the Company or another Guarantor) unless, subject to
the provisions of Section 11.02(b):
(i) the Person formed by or surviving any such consolidation
or merger (if other than such Guarantor) assumes all the obligations of
such Guarantor under the Securities and this Indenture pursuant to a
supplemental indenture in form and substance reasonably satisfactory to
the Trustee;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(iii) the Company will, at the time of such transaction and
after giving PRO FORMA effect thereto as if such transaction had
occurred at the beginning of the applicable four-quarter period, either
(x) be permitted to Incur at least $1.00 of additional Indebtedness
pursuant to Section 4.03(a) or (y) have a Fixed Charge Coverage Ratio
at least equal to the actual Fixed Charge Coverage Ratio for such
four-quarter reference period.
Notwithstanding the foregoing clauses (ii) and (iii) above,
(a) any Restricted Subsidiary may consolidate with, merge into or transfer all
or part of its properties and assets to any Subsidiary Guarantor and (b) any
Guarantor may merge with an Affiliate incorporated solely for the purpose of
reincorporating such Guarantor in another jurisdiction.
81
73
ARTICLE VI
Defaults and Remedies
---------------------
SECTION 6.01. EVENTS OF DEFAULT AND REMEDIES.
An "Event of Default" occurs if:
(1) the Company defaults in any payment of interest on, or
Liquidated Damages with respect to, any Security when the same becomes
due and payable, whether or not such payment shall be prohibited by
Article X, and such default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of
any Security when the same becomes due and payable at its Stated
Maturity, upon optional redemption, upon declaration or otherwise,
whether or not such payment shall be prohibited by Article X;
(3) the Company fails to comply with Section 5.01 or the
Guarantors fail to comply with Section 5.02;
(4) the Company fails to comply with Section 4.03, 4.04, 4.05,
4.06, 4.07, 4.08, 4.11, 4.12, 4.13 or 4.14 and such failure continues
for 30 days after receipt by the Company of a Notice of Default.
(5) the Company fails to comply with any of its agreements in
the Securities or this Indenture (other than those referred to in (1),
(2), (3) or (4) above) and such failure continues for 60 days after
receipt by the Company of a Notice of Default;
(6) Indebtedness of the Company or any Restricted Subsidiary
that is a Significant Subsidiary is not paid within any applicable
grace period after final maturity or the acceleration by the holders
thereof because of a default and the total amount of such Indebtedness
unpaid or accelerated exceeds $20,000,000 or its foreign currency
equivalent at the time;
(7) the Company or any Restricted Subsidiary that is a
Significant Subsidiary pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
82
74
(C) consents to the appointment of a Custodian of it
or for any substantial part of its property;
(D) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws
relating to insolvency;
(8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Restricted Subsidiary that is a Significant Subsidiary in an
involuntary case;
(B) appoints a Custodian of the Company or any
Restricted Subsidiary that is a Significant Subsidiary or for
any substantial part of its property; or
(C) orders the winding up or liquidation of the
Company or any Restricted Subsidiary that is a Significant
Subsidiary;
or any similar relief is granted under any foreign laws and the order
or decree relating thereto remains unstayed and in effect for 60 days;
(9) any judgment or decree for the payment of money in excess
of $20,000,000 or its foreign currency equivalent at the time is
entered against the Company or any Restricted Subsidiary that is a
Significant Subsidiary and is not discharged, waived or stayed and
either (A) an enforcement proceeding has been commenced by any creditor
upon such judgment or decree or (B) there is a period of 60 days
following the entry of such judgment or decree during which such
judgment or decree is not discharged, waived or the execution thereof
stayed; or
(10) except as permitted by this Indenture, any Security
Guarantee by Holding or a Guarantor that is a Significant Subsidiary
shall be held in any judicial proceeding to be unenforceable and
invalid or shall cease for any reason to be in full force and effect or
any Guarantor or any Person acting by or on behalf of such Guarantor
shall deny or disaffirm its obligations under this Indenture or any
Security Guarantee.
83
75
The foregoing shall constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected 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.
The term "Bankruptcy Law" means Xxxxx 00, XXXXXX XXXXXX CODE,
or any similar federal or state law for the relief of debtors. For purposes of
this Section, the term "Custodian" means any receiver, trustee, assignee,
liquidator, custodian or similar official under any Bankruptcy Law.
A Default under clause (4) or (5) is not an Event of Default
until the Trustee or the Holders of at least 25% in aggregate principal amount
of the outstanding Securities notify the Company in writing by registered or
certified mail, return receipt requested, of the Default and the Company does
not cure such Default within the time specified in clauses (4) or (5) after
receipt of such notice. Such notice must specify the Default, demand that it be
remedied and state that such notice is a "Notice of Default".
The Company shall deliver to the Trustee, forthwith upon any
Officer becoming aware thereof, written notice in the form of an Officers'
Certificate of any Event of Default under clause (6) and any event that with the
giving of notice or the lapse of time would become an Event of Default under
clause (4), (5) or (9), its status and what action the Company is taking or
proposes to take with respect thereto.
SECTION 6.02. ACCELERATION. If an Event of Default (other than
an Event of Default specified in Section 6.01(a)(7) or (8) with respect to the
Company) occurs and is continuing, the Trustee by notice to the Company in
writing, or the Holders of at least 25% in aggregate principal amount of the
outstanding Securities by notice in writing to the Company, may declare the
principal of and accrued but unpaid interest on all the Securities to be due and
payable. Upon such a declaration, such principal and interest shall be due and
payable immediately; PROVIDED, HOWEVER, that if upon such declaration there are
any amounts outstanding under the New Credit Facility and the amounts thereunder
have not been accelerated, such amounts shall be due and payable upon the
earlier of the time such amounts are accelerated or five Business Days after
receipt by the Company and the Representative of the lenders under the New
Credit Facility of such declaration. If an Event of Default
84
76
specified in Section 6.01(a)(7) or (8) with respect to the Company occurs, the
principal of and interest on all the Securities shall IPSO FACTO become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Securityholders. The Holders of a majority in aggregate
principal amount of the Securities by written notice to the Trustee may, on
behalf of all the Holders, rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Defaults or Events of Default have been cured or waived except nonpayment of
principal or interest that has become due because of such acceleration. No such
rescission shall affect any subsequent Default or impair any right consequent
thereto.
SECTION 6.03. OTHER REMEDIES. If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative (to the
extent permitted by law).
SECTION 6.04. WAIVER OF PAST DEFAULTS. The Holders of a
majority in aggregate principal amount of the Securities then outstanding by
written notice to the Trustee may on behalf of the Holders of all of the
Securities waive any existing Default or Event of Default and its consequences
except (i) a continuing Default or Event of Default in the payment of interest
on, or the principal of, the Securities or (ii) a Default in respect of a
provision that under Section 9.02 cannot be amended without the consent of each
Securityholder affected. When a Default is waived, it is deemed cured and ceases
to exist and any Event of Default arising therefrom shall be deemed to have been
cured and waived for every purpose under this Indenture, but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any consequent right.
SECTION 6.05. CONTROL BY MAJORITY. The Holders of a majority
in aggregate principal amount of the Securities may direct the time, method and
place of
85
77
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee by this Indenture.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture or, subject to Section 7.01, that the Trustee determines is
unduly prejudicial to the rights of other Securityholders or would involve the
Trustee in personal liability; PROVIDED, HOWEVER, that the Trustee may take any
other action deemed proper by the Trustee that is not inconsistent with such
direction. Prior to taking any action hereunder, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking such action.
SECTION 6.06. LIMITATION ON SUITS. Except to enforce the right
to receive payment of principal, premium (if any), interest or Liquidated
Damages when due, a Securityholder may not pursue any remedy with respect to
this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(2) the Holders of at least 25% in aggregate principal amount
of the Securities make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(5) the Holders of a majority in aggregate principal amount of
the Securities do not give the Trustee a direction inconsistent with
the request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
another Securityholder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and Liquidated Damages and interest on the
Securities held by such Holder, on or after the respective
86
78
due dates expressed in the Securities, or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. If an Event of
Default specified in Section 6.01(a)(1) or (2) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount then due and owing (together with
interest on any unpaid interest to the extent lawful) and the amounts provided
for in Section 7.07.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Company, any Subsidiary or
any Guarantor, their creditors or their property and, unless prohibited by law
or applicable regulations, may vote on behalf of the Holders in any election of
a trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder to
make 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 its counsel, and any other amounts due
the Trustee under Section 7.07.
SECTION 6.10. PRIORITIES. If the Trustee collects any money or
property pursuant to this Article VI, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to the holders of Senior Indebtedness to the extent
required by Article X;
THIRD: to Securityholders for amounts due and unpaid on the
Securities for principal and interest, ratably, and any Liquidated
Damages without preference or priority of any kind, according to the
amounts due and payable on the Securities for principal, any Liquidated
Damages and interest, respectively; and
87
79
FOURTH: to the Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section. At least 15 days before
such record date, the Trustee shall mail to each Securityholder and the Company
a notice that states the record date, the payment date and amount to be paid.
SECTION 6.11. UNDERTAKING FOR COSTS. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by
Holders of more than 10% in principal amount of the Securities.
SECTION 6.12. WAIVER OF STAY OR EXTENSION LAWS. Neither the
Company nor any Guarantor (to the extent they may lawfully do so) shall at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company and each Guarantor (to the extent that they
may lawfully do so) hereby expressly waive all benefit or advantage of any such
law, and shall not hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE VII
Trustee
-------
SECTION 7.01. DUTIES OF TRUSTEE. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Person's own affairs.
88
80
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(1) this paragraph does not limit the effect of Section
7.01(b);
(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; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise
89
81
Incur financial liability in the performance of any of its duties hereunder or
in the exercise of any of its rights or powers, if it shall have reasonable
grounds to believe that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
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 any such document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through 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; PROVIDED, HOWEVER, that the Trustee's conduct does not
constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder
in good faith and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other paper or document unless requested in writing to do so
by the Holders of not less than a majority in principal amount of the Securities
at the time outstanding, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or
90
82
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney.
(g) The Trustee shall not be required to give any note, bond
or surety in respect of the execution of the trusts and powers under this
Indenture.
(h) The permissive rights of the Trustee to take any action
enumerated in this Indenture shall not be construed as a duty to take such
action.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying 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 shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement of the Company in this Indenture or in any document issued in
connection with the sale of the Securities or in the Securities other than the
Trustee's certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS. If a Default occurs and is
continuing and if it is actually known to the Trustee, the Trustee shall mail to
each Securityholder at the expense of the Company notice of the Default within
the earlier of 90 days after it occurs or 30 days after it is known to a Trust
Officer or written notice of it is received by the Trustee. Except in the case
of a Default in payment of principal or premium (if any), interest or Liquidated
Damages on any Security, the Trustee may withhold the notice if and so long as a
committee of its trust officers in good faith determines that withholding the
notice is in the interests of Securityholders. Notwithstanding anything to the
contrary expressed in this Indenture, the Trustee shall not be deemed to have
knowledge of any Default or Event of Default hereunder, except in the case of an
Event of Default under Section 6.01(a) and (b) hereof (provided that the Trustee
is Paying Agent), unless and until a Trust Officer receives written notice
thereof at its Corporate Trust
91
83
Office specified in Section 13.02, from the Company or a Holder that such
Default or Event of Default has occurred.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS. The Trustee shall
transmit to the Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the TIA at the times and in
the manner provided pursuant thereto. To the extent that any such report is
required by the TIA with respect to any 12-month period, such report shall cover
the 12-month period ending December 31 and shall be transmitted by the next
succeeding March 1.
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange (if any) on which the
Securities are listed. The Company agrees to notify promptly the Trustee
whenever the Securities become listed on any stock exchange and of any delisting
thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY. The Company shall
pay to the Trustee from time to time such compensation as is agreed to in
writing by the Trustee and Company for the Trustee's services hereunder. 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 out-of-pocket disbursements, advances and expenses
Incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee's agents,
counsel, accountants and experts. The Company and each Guarantor, jointly but
not severally, shall indemnify the Trustee and its officers, directors,
shareholders, agents and employees (each, an "Indemnified Party") for and hold
each Indemnified Party harmless against any and all loss, liability or expense
(including reasonable attorneys' fees) Incurred by them without negligence or
bad faith on their part arising out of or in connection with the acceptance or
administration of this Indenture or the Securities and the performance of their
duties hereunder, including the cost and expense of enforcing this Indenture
against the Company (including this Section 7.07), and defending itself against
any claim (whether asserted by a Holder or any other person) The Trustee and its
officers, directors, shareholders, agents and employees in its capacity as
Paying Agent, Registrar, Custodian and agent for service of notice and demands
shall have the full benefit of the foregoing indemnity as well as all other
benefits, rights and
92
84
privileges accorded to the Trustee in this Indenture when acting in such other
capacity. The Trustee shall notify the Company of any claim for which it may
seek indemnity promptly upon obtaining actual knowledge thereof; PROVIDED that
any failure so to notify the Company shall not relieve the Company or any
Subsidiary Guarantor of its indemnity obligations hereunder. The Company shall
defend the claim and the Indemnified Party shall provide reasonable cooperation
at the Company's expense in the defense. Such Indemnified Parties may have
separate counsel and the Company shall pay the fees and expenses of such
counsel; PROVIDED that the Company shall not be required to pay such fees and
expenses if it assumes such Indemnified Parties' defense and, in such
Indemnified Parties' reasonable judgment, there is no conflict of interest
between the Company and such parties in connection with such defense. The
Company need not reimburse any expense or indemnify against any loss, liability
or expense Incurred by an Indemnified Party through such party's own wilful
misconduct, negligence or bad faith. The Company need not pay any settlement
made without its consent (which consent shall not be unreasonably withheld).
To secure the Company's payment obligations in this Section
and all other obligations to the Trustee pursuant to this Indenture, including
all fees, expenses, and rights to indemnification, the Trustee shall have a lien
on all money or property held or collected by the Trustee other than money or
property held in trust to pay principal of and interest and any Liquidated
Damages on particular Securities. Such lien shall survive the satisfaction and
discharge of this Indenture and the resignation or removal of the Trustee. The
Trustee's right to receive payment of any amounts due under this Indenture shall
not be subordinated to any other indebtedness of the Company and the Securities
shall be subordinate to the Trustee's rights to receive such payment.
The Company's payment obligations pursuant to this Section
shall survive the satisfaction or discharge of this Indenture, any rejection or
termination of this Indenture under any Bankruptcy Law or the resignation or
removal of the Trustee. When the Trustee Incurs expenses after the occurrence of
a Default specified in Section 6.01(a)(7) or (8) with respect to the Company,
the expenses are intended to constitute expenses of administration under the
Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE. The Trustee may resign
at any time by so notifying the Company
93
85
in writing. The Holders of a majority in principal amount of the Securities may
remove the Trustee by so notifying the Trustee and the Company in writing and
may appoint a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the
Holders of a majority in principal amount of the Securities and such Holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of at least 10% in aggregate principal amount of the 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 the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
94
86
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee, PROVIDED, that such Person shall be
qualified and eligible under this Article VII.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. The Trustee shall
at all times satisfy the requirements of TIA ss. 310(a). The Trustee shall have
a combined capital and surplus of at least $100,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with
TIAss. 310(b); PROVIDED, HOWEVER, that there shall be excluded from the
operation of TIA ss. 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY. The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shalL be subject to TIA Section 311(a) to the extent indicated
therein.
95
87
ARTICLE VIII
Discharge of Indenture; Defeasance
----------------------------------
SECTION 8.01. LEGAL DEFEASANCE AND COVENANT DEFEASANCE. (a)
The Company may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.01(b) or 8.01(c) hereof be applied to all outstanding
Securities upon compliance with the conditions set forth below in this Article
VIII.
(b) Upon the Company's exercise under Section 8.01(a) hereof
of the option applicable to this Section 8.01(b), the Company and each Guarantor
shall, subject to the satisfaction of the conditions set forth in Section 8.02
hereof, be deemed to have been discharged from their obligations with respect to
all outstanding Securities and any Security Guarantee on the date the conditions
set forth below are satisfied (hereinafter, "Legal Defeasance"). For this
purpose, Legal Defeasance means that the Company and each Guarantor shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Securities and any Security Guarantee, which Securities and
Security Guarantees shall thereafter be deemed to be "outstanding" only for the
purposes of Section 8.03 hereof and the other Sections of this Indenture
referred to in (i) and (ii) below, and to have satisfied all their other
obligations under such Securities and this Indenture (and the Trustee, on demand
of and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (i) the rights of Holders of
outstanding Securities to receive solely from the trust fund described in
Article VIII hereof, as more fully set forth in such Article, payments in
respect of the principal of, premium, if any, and interest and Liquidated
Damages, if any, on such Securities when such payments are due, (ii) the
Company's obligations with respect to the Securities under Sections 2.03, 2.04,
2.05, 2.06, 2.07, 2.09, 7.07 and 7.08, which shall survive until the Securities
have been paid in full (thereafter, the Company's obligations in Section 7.07
shall survive), and (iii) this Article VIII. Subject to compliance with this
Article VIII, the Company may exercise its option under this Section 8.01(b)
notwithstanding the prior exercise of its option under Section 8.01(c) hereof.
(c) Upon the Company's exercise under Section 8.01(a) hereof
of the option applicable to this
96
88
Section 8.01(c), the Company and each Guarantor shall, subject to the
satisfaction of the conditions set forth in Section 8.02 hereof, be released
from their obligations under Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08,
4.09, 4.11, 4.12, 4.13, 4.14, 5.01(iv) and 5.02(iii) hereof with respect to the
outstanding Securities on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Securities shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration of act of Holders (and the consequences of any
thereof) in connection with such Sections, but shall continue to be deemed
"outstanding" for all the other purposes hereunder (it being understood that
such Securities and the related Security Guarantees shall not be deemed
outstanding for accounting purposes). For this purpose, Covenant Defeasance
means that, with respect of any term, condition or limitation set forth in any
such Section, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document and such omission
to comply shall not constitute a Default or an Event of Default under Section
6.01 hereof, but, except as specified above, the remainder of this Indenture and
such Securities shall be unaffected thereby. In addition, upon the Company's
exercise under Section 8.01(a) hereof of the option applicable to this Section
8.01(c) hereof, subject to the satisfaction of the conditions set forth in
Section 8.02, Sections 6.01(4), 6.01(5) (with respect to compliance with Section
4.09 only), 6.01(6), 6.01(7) (with respect to Subsidiaries of the Company only),
6.01(8) (with respect to Subsidiaries of the Company only), 6.01(9) or 6.01(10)
shall not constitute Events of Default.
SECTION 8.02. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE. The
following shall be the conditions to the application of either Section 8.01(b)
or 8.01(c) hereof to the outstanding Securities:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, cash in United States dollars,
U.S. Government Obligations, or a combination thereof, in such amounts
as will be sufficient, in the opinion of a nationally recognized firm
of independent public accountants, to pay the principal of, premium and
Liquidated Damages, if any,
97
89
and interest on the outstanding Securities on the stated date for
payment thereof or on the applicable redemption date, as the case may
be;
(b) in the case of an election under Section 8.01(b) hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel
in the United States reasonably acceptable to the Trustee confirming
that (A) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling or (B) since the date hereof,
there has been a change in the applicable federal income tax law, in
either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the outstanding Securities
will not recognize income, gain or loss for federal income tax purposes
as a result of such Legal Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance had not
occurred;
(c) in the case of an election under Section 8.01(c) hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel
in the United States, subject to customary assumptions and exclusions,
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Securities will not recognize income, gain or loss for
federal income tax purposes as a result of such Covenant Defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing (i) on the date of such deposit (other than a Default or
Event of Default resulting from the Incurrence of Indebtedness (or the
grant of any Lien securing such borrowing) all or a portion of the
proceeds of which will be used to defease the Securities pursuant to
this Article VIII concurrently with such Incurrence) or (ii) insofar as
Sections 6.01(a)(7) or 6.01(a)(8) hereof is concerned, at any time in
the period ending on the 91st day after the date of the deposit
pursuant to Section 8.02(a);
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any
material agreement or
98
90
instrument (other than this Indenture) to which the Company or any of
its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion
of Counsel, subject to customary assumptions and exclusions, to the
effect that after the 91st day following the deposit pursuant to
Section 8.02(a), the trust funds will not be part of any "estate"
formed by the bankruptcy or reorganization of the Company or subject to
the "automatic stay" under the Bankruptcy Code, or in the case of a
covenant defeasance, will be subject to a first priority lien in favor
of the Trustee for the benefit of the Holders;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company; and
(h) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, subject to customary
assumptions and exclusions, each stating that all conditions precedent
provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
SECTION 8.03. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to Section 8.04 hereof,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 8.03, the "Trustee") pursuant to Section 8.02 hereof in
respect of the outstanding Securities shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as Paying Agent) as the Trustee may determine, to
the Holders of such Securities of all sums due and to become due thereon in
respect of principal, premium, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.
Anything in this Article VIII to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company
99
91
any money or U.S. Government Obligations held by it as provided in Section 8.02
hereof which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 8.02(a) hereof), are
in excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.04. REPAYMENT TO COMPANY. Any money deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of, premium and Liquidated Damages, if any, or interest
on any Security and remaining unclaimed for two years after such principal,
premium and Liquidated Damages, if any, or interest has become due and payable
shall be paid to the Company on its request or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company, cause to be published once, in the New York Times
(national edition) and the Wall Street Journal (national edition), 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 notification or
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 8.05. REINSTATEMENT. If the Trustee or Paying Agent is
unable to apply any United States dollars or U.S. Government Obligations in
accordance with this Article VIII by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article VIII until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with this Article VIII;
PROVIDED, HOWEVER, that, if the Company or any Guarantor makes any payment of
principal of, premium and Liquidated Damages, if any, or interest on any
Security following the reinstatement of its obligations, the Company or any
Guarantor, as the case may be, shall be subrogated to the rights of the Holders
of such
100
92
Securities to receive such payment from the money held by the Trustee or Paying
Agent.
SECTION 8.06. SATISFACTION AND DISCHARGE OF INDENTURE. Upon
the request of the Company, this Indenture will cease to be of further effect
(except as to surviving rights of registration of transfer or exchange of the
Securities, as expressly provided for herein or pursuant hereto), the Company
and the Guarantors will be discharged from their obligations under the
Securities and the Security Guarantees, and the Trustee, at the expense of the
Company, will execute proper instruments acknowledging satisfaction and
discharge of the Indenture when:
(a) either (i) all the Securities theretofore authenticated
and delivered (other than mutilated, destroyed, lost or stolen
Securities that have been replaced or paid and Securities that have
been subject to defeasance under this Article VIII) have been delivered
to the Trustee for cancelation or (ii) all Securities not theretofore
delivered to the Trustee for cancelation (A) have become due and
payable, (B) will become due and payable at maturity within one year or
(C) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Company, and the
Company, in the case of (A), (B) or (C) above, has irrevocably
deposited or caused to be deposited with the Trustee funds in trust for
such purpose in an amount sufficient to pay and discharge, without the
need to reinvest any proceeds thereof, the entire Indebtedness on such
Securities not theretofore delivered to the Trustee for cancelation,
for principal (and premium, if any, on) and interest on the Securities
to the date of such deposit (in the case of Securities that have become
due and payable) or to the Stated Maturity or redemption date, as the
case may be;
(b) the Company has paid or caused to be paid all sums payable
under the Indenture by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided in this Indenture relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the
101
93
Trustee under Section 7.07 and, if money shall have been deposited with the
Trustee pursuant to clause (a)(ii) of this Section, the obligations of the
Trustee under Section 8.06 and Section 2.04 shall survive.
ARTICLE IX
Amendments
----------
SECTION 9.01. WITHOUT CONSENT OF HOLDERS. The
Company, the Guarantors and the Trustee may amend this
Indenture or the Securities without notice to or consent of
any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Securities in addition to or
in place of certificated Securities (provided that the uncertificated
Securities are issued in registered form for purposes of Section 163(f)
of the Code, or in a manner such that the uncertificated Securities are
described in Section 163(f)(2)(B) of the Code);
(3) to provide for the assumption of the Company's or any
Guarantor's obligations to Holders of Securities in the case of a
merger, consolidation or sale of assets;
(4) to release any Security Guarantee in accordance with the
provisions of this Indenture;
(5) to provide for additional Guarantors;
(6) to make any change that would provide any additional
rights or benefits to the Holders of Securities or that does not
adversely affect the legal rights under this Indenture of any such
Holder;
(7) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA; or
(8) to make any change to Article II, Section 4.01 or the
Exhibits hereto that applies only to Additional Securities (other than
a change relating to other provisions of this Indenture incorporated or
referenced in Article II, Section 4.01 or any such Exhibit).
102
94
An amendment under this Section may not make any change that
adversely affects the rights under Article X of any holder of Senior
Indebtedness then outstanding unless the holders of such Senior Indebtedness (or
any group or representative thereof authorized to give a consent) consent to
such change.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
SECTION 9.02. WITH CONSENT OF HOLDERS. The Company, the
Guarantors and the Trustee may amend this Indenture or the Securities without
notice to any Securityholder but with the written consent of the Holders of at
least a majority in principal amount of the Securities. However, without the
consent of each Securityholder affected, an amendment may not:
(i) reduce the principal amount of Securities whose Holders
must consent to an amendment, supplement or waiver;
(ii) reduce the principal of or change the fixed maturity of
any Security, reduce any premium payable upon optional redemption of the
Securities or otherwise alter the provisions with respect to the redemption or
repurchase of the Securities (other than provisions relating to Sections 4.06,
4.08 and 3.09);
(iii) reduce the rate of or change the time for payment of
interest or any Liquidated Damages, if any, on any Security;
(iv) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Securities (except a
rescission of acceleration of the Securities by the Holders of at least a
majority in aggregate principal amount of the Securities and a waiver of the
payment default that resulted from such acceleration);
(v) make any Security payable in money other than
that stated in the Securities;
(vi) impair the rights of Holders of Securities to receive
payments of principal of or premium, if any, or interest or Liquidated Damages
on the Securities;
103
95
(vii) make any change to Section 6.04 or 6.07 or this Section
9.02;
(viii) except for releases of Guarantors as permitted by
Section 11.02, make any change to the Security Guarantees in any manner that
adversely affects the rights of the Holders; or
(ix) make any change to Article X that adversely affects the
rights of any Holders under Article X.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent approves the substance thereof.
An amendment under this Section may not make any change that
adversely affects the rights under Article X of any holder of Senior
Indebtedness then outstanding unless the holders of such Senior Indebtedness (or
any group or representative thereof authorized to give a consent) consent to
such change.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. Every
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS AND WAIVERS. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives written notice of
revocation before the date the amendment or waiver becomes effective. After an
amendment or waiver becomes effective, it shall bind every Securityholder.
Except if otherwise specified in such amendment or waiver, an amendment or
waiver becomes effective once the requisite number of consents are received by
the Company or the Trustee.
104
96
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES. If an
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS. The Trustee shall
sign any amendment authorized pursuant to this Article IX if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture that
such amendment is the legal, valid and binding obligation of the Company and the
Guarantors enforceable against them in accordance with its terms, subject to
customary exceptions, and complies with the provisions hereof (including Section
9.03).
SECTION 9.07. PAYMENT FOR CONSENT. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
105
97
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE X
Subordination
-------------
SECTION 10.01. AGREEMENT TO SUBORDINATE. The Company agrees,
and each Securityholder by accepting a Security agrees, that the Indebtedness
evidenced by the Securities is subordinated in right of payment, to the extent
and in the manner provided in this Article X, to the prior payment in full in
cash or Cash Equivalents of all existing and future Senior Indebtedness of the
Company and that the subordination is for the benefit of and enforceable by the
holders of Senior Indebtedness of the Company. The Securities shall in all
respects rank PARI PASSU with all other Pari Passu Indebtedness of the Company
and only Indebtedness of the Company that is Senior Indebtedness shall rank
senior to the Securities in accordance with the provisions set forth herein. For
purposes of these subordination provisions, the Indebtedness evidenced by the
Securities is deemed to include the Liquidated Damages payable pursuant to the
provisions set forth in the Securities and the applicable Registration Rights
Agreement. All provisions of this Article X shall be subject to Section 10.12.
SECTION 10.02. LIQUIDATION, DISSOLUTION, BANKRUPTCY. Upon any
payment or distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, an
assignment for the benefit of creditors or any marshaling of the Company's
assets and liabilities, the holders of Senior Indebtedness of the Company shall
be entitled to receive payment in full, in cash or Cash Equivalents, of all
Obligations due in respect of such Senior Indebtedness (including interest after
the commencement of any such proceeding at the rate specified in the applicable
Senior Indebtedness, whether or not allowed or allowable in such proceeding)
before the Holders of Securities will be entitled to receive any payment with
respect to the Securities, and until all Obligations with respect to such Senior
Indebtedness are paid in full, in cash or Cash Equivalents, any payment or
distribution to which the Holders of Securities would be entitled shall be made
to the holders of such Senior Indebtedness (except that Holders of Securities
may receive and retain (i) Permitted
106
98
Junior Securities and (ii) payments made from the trust described in Article
VIII so long as, on the date or dates the respective amounts were paid into the
trust, such payments were made with respect to the Securities without violating
this Article X).
SECTION 10.03. DEFAULT ON SENIOR INDEBTEDNESS. The Company
shall not make any payment or distribution upon or in respect of the Securities
(except from the trust described in Article VIII) if (i) a default in the
payment of any Obligations with respect to Designated Senior Debt of the Company
occurs and is continuing (a "payment default") or any other default on
Designated Senior Debt of the Company occurs and the maturity of such Designated
Senior Debt is accelerated in accordance with its terms or (ii) a default, other
than a payment default, occurs and is continuing with respect to Designated
Senior Debt of the Company that permits holders of the Designated Senior Debt of
the Company as to which such default relates to accelerate its maturity (a
"non-payment default") and, in the case of this clause (ii) only, the Trustee
receives a notice of such default (a "Payment Blockage Notice") from a
Representative for, or the holders of a majority of the outstanding principal
amount, of any such issue of Designated Senior Debt of the Company. Payments on
the Securities may and shall be resumed (a) in the case of a payment default,
upon the date on which such default is cured or waived and, in the case of
Designated Senior Debt of the Company that has been accelerated, such
acceleration has been rescinded, and (b) in case of a non-payment default, the
earlier of the date on which such non-payment default is cured or waived or 179
days after the date on which the applicable Payment Blockage Notice is received,
unless the maturity of any Designated Senior Debt of the Company has been
accelerated. No new period of payment blockage may be commenced on account of
any non-payment default unless and until 360 days have elapsed since the initial
effectiveness of the immediately prior Payment Blockage Notice. No non-payment
default that existed or was continuing on the date of delivery of any Payment
Blockage Notice to the Trustee (it being acknowledged that (x) any action of the
Company or any of its Subsidiaries occurring subsequent to delivery of a Payment
Blockage Notice that would give rise to any Event of Default pursuant to any
provision under which an Event of Default previously existed (or was continuing
at the time of delivery of such Payment Blockage Notice) shall constitute a new
Event of Default for this purpose and (y) any breach of a financial covenant
giving rise to a non-payment default for a period ending subsequent to the date
of delivery of respective Payment
107
99
Blockage Notice shall constitute a new event of default for this purpose) shall
be, or be made, the basis for a subsequent Payment Blockage Notice unless such
default shall have been cured or waived for a period of not less than 90 days.
SECTION 10.04. ACCELERATION OF PAYMENT OF SECURITIES. If
payment of the Securities is accelerated because of an Event of Default, the
Company shall promptly notify the Representative of the lenders under the New
Credit Facility of the acceleration. If any Indebtedness under the New Credit
Facility is outstanding, the Company may not make any payment on account of such
accelerated Securities until five Business Days after such holders of such
Indebtedness receive notice of such acceleration and, thereafter, may pay the
Securities only if this Article X otherwise permits payment at that time.
SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER. If a
distribution is made to Securityholders that because of this Article X should
not have been made to them, the Securityholders who receive such distribution
shall hold it in trust for holders of Senior Indebtedness of the Company and pay
it over to them as their interests may appear.
SECTION 10.06. SUBROGATION. After all Senior Indebtedness of
the Company is paid in full and until the Securities are paid in full,
Securityholders shall be subrogated to the rights of holders of Senior
Indebtedness of the Company to receive distributions applicable to Senior
Indebtedness of the Company. A distribution made under this Article X to holders
of Senior Indebtedness of the Company which otherwise would have been made to
Securityholders is not, as between the Company and Securityholders, a payment by
the Company on Senior Indebtedness of the Company.
SECTION 10.07. RELATIVE RIGHTS. This Article X defines the
relative rights of Securityholders and holders of Senior Indebtedness of the
Company. Nothing in this Indenture shall:
(1) impair, as between the Company and Securityholders, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Securities in accordance with their
terms; or
(2) prevent the Trustee or any Securityholder from exercising
its available remedies upon a Default,
108
100
subject to the rights of holders of Senior Indebtedness of the Company
to receive distributions otherwise payable to Securityholders.
SECTION 10.08. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No right of any holder of Senior Indebtedness of the Company to enforce the
subordination of the Indebtedness evidenced by the Securities shall be impaired
by any act or failure to act by the Company or by its failure to comply with
this Indenture.
SECTION 10.09. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding Section 10.03, the Trustee or Paying Agent may continue to make
payments on the Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two Business Days prior to the date of such payment, a Trust
Officer of the Trustee receives written notice satisfactory to it that payments
may not be made under this Article X. The Company, the Registrar or
co-registrar, the Paying Agent, a Representative or a holder of Senior
Indebtedness of the Company may give the notice; PROVIDED, HOWEVER, that, if an
issue of Senior Indebtedness of the Company has a Representative, only the
Representative may give the notice. The Trustee shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself or itself to
be a holder of any Senior Indebtedness of the Company (or a Representative of
such holder) to establish that such notice has been given by a holder of such
Senior Indebtedness of the Company or Representative thereof.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness of the Company with the same rights it would have if it were
not Trustee. The Registrar and co-registrar and the Paying Agent may do the same
with like rights. The Trustee shall be entitled to all the rights set forth in
this Article X with respect to any Senior Indebtedness of the Company which may
at any time be held by it, to the same extent as any other holder of Senior
Indebtedness of the Company; and nothing in Article VII shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article X shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
7.07.
SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of Senior
Indebtedness of the
109
101
Company, the distribution may be made and the notice given to their
Representative (if any).
SECTION 10.11. ARTICLE X NOT TO PREVENT EVENTS OF DEFAULT OR
LIMIT RIGHT TO ACCELERATE. The failure to make a payment pursuant to the
Securities by reason of any provision in this Article X shall not be construed
as preventing the occurrence of a Default. Nothing in this Article X shall have
any effect on the right of the Securityholders or the Trustee to accelerate the
maturity of the Securities.
SECTION 10.12. TRUST MONEYS NOT SUBORDINATED. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article VIII by the Trustee
for the payment of principal of and interest on the Securities shall not be
subordinated to the prior payment of any Senior Indebtedness or subject to the
restrictions set forth in this Article X, and none of the Securityholders shall
be obligated to pay over any such amount to the Company or any holder of Senior
Indebtedness of the Company or any other creditor of the Company.
SECTION 10.13. TRUSTEE ENTITLED TO RELY. Upon any payment or
distribution pursuant to this Article X, the Trustee and the Securityholders
shall be entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 10.02
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Securityholders or (iii) upon the Representative for the holders of Senior
Indebtedness of the Company for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior
Indebtedness of the Company and other Indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article X. In the event that
the Trustee determines, in good faith, that evidence is required with respect to
the right of any Person as a holder of Senior Indebtedness of the Company to
participate in any payment or distribution pursuant to this Article X, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness of the
Company held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and other facts pertinent to the
rights of such Person under this Article X, and, if such
110
102
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment. The provisions of Sections 7.01 and 7.02 shall be applicable to all
actions or omissions of actions by the Trustee pursuant to this Article X.
SECTION 10.14. TRUSTEE TO EFFECTUATE SUBORDINATION. Each
Securityholder by accepting a Security authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Securityholders and the holders of
Senior Indebtedness of the Company as provided in this Article X and appoints
the Trustee as attorney-in-fact for any and all such purposes.
SECTION 10.15. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS. With respect to the holders of Senior Indebtedness of the Company,
the Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article X. The Trustee shall
not be deemed to owe any fiduciary or other duty to the holders of Senior
Indebtedness of the Company and shall not be liable to any such holders if it
shall mistakenly pay over or distribute to Securityholders or the Company or any
other Person, money or assets to which any holders of Senior Indebtedness of the
Company shall be entitled by virtue of this Article X or otherwise.
SECTION 10.16. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON
SUBORDINATION PROVISIONS. Each Securityholder by accepting a Security
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness of the Company, whether such Senior Indebtedness was created or
acquired before or after the issuance of the Securities, to acquire and continue
to hold, or to continue to hold, such Senior Indebtedness and such holder of
Senior Indebtedness shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Indebtedness.
SECTION 10.17. TRUSTEE'S COMPENSATION NOT PREJUDICED. Nothing
in this Article shall apply to amounts due to the Trustee pursuant to other
sections of this Indenture.
111
103
ARTICLE XI
Security Guarantees
-------------------
SECTION 11.01. SECURITY GUARANTEES. Each Guarantor hereby
jointly and severally unconditionally and irrevocably guarantees as a primary
obligor and not merely as a surety, to each Holder and to the Trustee and its
successors and assigns (a) the full and punctual payment of principal of,
premium, if any, and interest and Liquidated Damages, if any, on the Securities
when due, whether at maturity, by acceleration, by redemption or otherwise,
subject to any applicable grace period, and all other monetary obligations of
the Company under this Indenture (including obligations to the Trustee) and the
Securities and (b) the full and punctual performance within applicable grace
periods of all other obligations of the Company whether for expenses,
indemnification or otherwise under this Indenture and the Securities (all of the
foregoing being hereinafter collectively called the "Guaranteed Obligations").
Each Guarantor further agrees that the Guaranteed Obligations may be extended or
renewed, in whole or in part, without notice or further assent from each such
Guarantor, and that each such Guarantor shall remain bound under this Article XI
notwithstanding any extension or renewal of any Guaranteed Obligation.
Each Guarantor waives presentation to, demand of, payment from
and protest to the Company of any of the Guaranteed Obligations and also waives
notice of protest for nonpayment. Each Guarantor waives notice of any default
under the Securities or the Guaranteed Obligations. The obligations of each
Guarantor hereunder shall not be affected by (a) the failure of any Holder or
the Trustee to assert any claim or demand or to enforce any right or remedy
against the Company or any other Person under this Indenture, the Securities or
any other agreement or otherwise; (b) any extension or renewal of any Guaranteed
Obligations; (c) any rescission, waiver, amendment or modification of any of the
terms or provisions of this Indenture, the Securities or any other agreement;
(d) the release of any security held by any Holder or the Trustee for the
Guaranteed Obligations or any of them; (e) the failure of any Holder or Trustee
to exercise any right or remedy against any other guarantor of the Guaranteed
Obligations; or (f) any change in the ownership of such Guarantor, except as
provided in Section 11.02(b).
Each Guarantor further agrees that its Security Guarantee
herein constitutes a Guarantee of payment,
112
104
performance and compliance when due (and not a guarantee of collection) and
waives any right to require that any resort be had by any Holder or the Trustee
to any security held for payment of the Guaranteed Obligations.
The obligations of each Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to any defense of setoff, counterclaim, recoupment or
termination whatsoever or by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of each Guarantor herein shall
not be discharged or impaired or otherwise affected by the failure of any Holder
or the Trustee to assert any claim or demand or to enforce any remedy under this
Indenture, the Securities or any other agreement, by any waiver or modification
of any thereof, by any default, failure or delay, willful or otherwise, in the
performance of the Guaranteed Obligations, or by any other act or thing or
omission or delay to do any other act or thing which may or might in any manner
or to any extent vary the risk of any Guarantor or would otherwise operate as a
discharge of any Guarantor as a matter of law or equity.
Each Guarantor further agrees that its Security Guarantee
herein shall continue to be effective or be reinstated, as the case may be, if
at any time payment, or any part thereof, of principal of or interest on any
Guaranteed Obligation is rescinded or must otherwise be restored by any Holder
or the Trustee upon the bankruptcy or reorganization of the Company or
otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has at law or in equity against any
Guarantor by virtue hereof, upon the failure of the Company to pay the principal
of or interest, premium or Liquidated Damages, if any, on any Guaranteed
Obligation when and as the same shall become due, whether at maturity, by
acceleration, by redemption or otherwise, or to perform or comply with any other
Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt
of written demand by the Trustee, forthwith pay, or cause to be paid, in cash,
to the Holders or the Trustee an amount equal to the sum of (i) the unpaid
principal amount of such Guaranteed Obligations, (ii) accrued and unpaid
interest, premium and Liquidated Damages, if any, on such Guaranteed Obligations
(but only to the extent not prohibited by law) and (iii) all other
113
105
monetary Guaranteed Obligations of the Company to the Holders and the Trustee.
Each Guarantor agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any Guaranteed
Obligations guaranteed hereby until payment in full of all Guaranteed
Obligations. Each Guarantor further agrees that, as between it, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
Guaranteed Obligations guaranteed hereby may be accelerated as provided in
Article VI for the purposes of any Security Guarantee herein, notwithstanding
any stay, injunction or other prohibition preventing such acceleration in
respect of the Guaranteed Obligations guaranteed hereby, and (y) in the event of
any declaration of acceleration of such Guaranteed Obligations as provided in
Article VI, such Guaranteed Obligations (whether or not due and payable) shall
forthwith become due and payable by such Guarantor for the purposes of this
Section.
Each Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees and expenses) Incurred by the
Trustee or any Holder in enforcing any rights under this Section.
SECTION 11.02. LIMITATION ON LIABILITY. (a) Any term or
provision of this Indenture to the contrary notwithstanding, the maximum,
aggregate amount of the obligations guaranteed hereunder by any Guarantor shall
not exceed the maximum amount that can be guaranteed (after giving effect to all
its Guarantees of Indebtedness under the New Credit Facility) without rendering
this Indenture, as it relates to any Guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.
(b) This Guarantee as to any Subsidiary Guarantor shall
terminate and be of no further force or effect upon (i) the designation (in
accordance with the provisions of this Indenture) of such Subsidiary Guarantor
as an Unrestricted Subsidiary or (ii) the sale or other disposition of all of
the assets of such Subsidiary Guarantor in accordance with the terms of this
Indenture, by way of merger, consolidation or otherwise, or a sale or other
disposition of all of the Capital Stock of any Subsidiary Guarantor then held by
the Company and its Restricted Subsidiaries; PROVIDED that the Net Proceeds of
such sale or other disposition are applied in accordance with Section 4.06, to
the extent such Section is applicable
114
106
to such disposition, or (iii) the sale or other disposition of Capital Stock of
any Subsidiary Guarantor if (A) as a result of such disposition, such Person
ceases to be a Subsidiary of the Company and (B) the Net Proceeds of such sale
are applied in accordance with Section 4.06, to the extent such Section is
applicable to such disposition. If the Security Guarantee of any Subsidiary
Guarantor terminates pursuant to the foregoing provisions, such Person shall
cease to be a Subsidiary, a Guarantor or otherwise a party to this Indenture
and, upon request by the Company, the Trustee shall execute appropriate
instruments acknowledging such termination and the release of such Person from
its obligations hereunder.
SECTION 11.03. SUCCESSORS AND ASSIGNS. This Article XI shall
be binding upon each Guarantor and its successors and assigns and shall enure to
the benefit of the successors and assigns of the Trustee and the Holders and, in
the event of any transfer or assignment of rights by any Holder or the Trustee,
the rights and privileges conferred upon that party in this Indenture and in the
Securities shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions of this Indenture.
SECTION 11.04. NO WAIVER. Neither a failure nor a delay on the
part of either the Trustee or the Holders in exercising any right, power or
privilege under this Article XI shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any
right, power or privilege. The rights, remedies and benefits of the Trustee and
the Holders herein expressly specified are cumulative and not exclusive of any
other rights, remedies or benefits which either may have under this Article XI
at law, in equity, by statute or otherwise.
SECTION 11.05. MODIFICATION. No modification, amendment or
waiver of any provision of this Article XI, nor the consent to any departure by
any Guarantor therefrom, shall in any event be effective unless the same shall
be in writing and signed by the Trustee, and then such waiver or consent shall
be effective only in the specific instance and for the purpose for which given.
No notice to or demand on any Guarantor in any case shall entitle such Guarantor
to any other or further notice or demand in the same, similar or other
circumstances.
115
107
ARTICLE XII
Subordination of the Security Guarantees
----------------------------------------
SECTION 12.01. AGREEMENT TO SUBORDINATE. Each Guarantor
agrees, and each Securityholder by accepting a Security agrees, that such
Guarantor's obligations under its Security Guarantee are subordinated in right
of payment, to the extent and in the manner provided in this Article XII, to the
prior payment in full in cash or Cash Equivalents of all existing and future
Senior Indebtedness of such Guarantor and that the subordination is for the
benefit of and enforceable by the holders of Senior Indebtedness of such
Guarantor. The obligations of a Guarantor under this Article XII shall in all
respects rank PARI PASSU with all other Pari Passu Indebtedness of such
Guarantor, and only Indebtedness of such Guarantor that is Senior Indebtedness
shall rank senior to the obligations of such Guarantor in this Article XII in
accordance with the provisions set forth herein.
SECTION 12.02. LIQUIDATION, DISSOLUTION, BANKRUPTCY. Upon any
payment or distribution to creditors of any Guarantor in a liquidation or
dissolution of such Guarantor or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to such Guarantor or its property,
an assignment for the benefit of creditors or any marshaling of such Guarantor's
assets and liabilities, the holders of Senior Indebtedness of such Guarantor
shall be entitled to receive payment in full, in cash or Cash Equivalents, of
all Obligations due in respect of such Senior Indebtedness (including interest
after the commencement of any such proceeding at the rate specified in the
applicable Senior Indebtedness, whether or not allowed or allowable in such
proceeding) before the Holders of Securities will be entitled to receive any
payment with respect to the Security Guarantee and until all Obligations with
respect to such Senior Indebtedness are paid in full, in cash or Cash
Equivalents, any payment or distribution to which the Holders of Securities
would be entitled shall be made to the holders of such Senior Indebtedness
(except that Holders of Securities may receive and retain (i) Permitted Junior
Securities and (ii) payments made from the trust described in Article VII so
long as, on the date or dates the respective amounts were paid into the trust,
such payments were made with respect to the Securities without violating this
Article XII).
SECTION 12.03. DEFAULT ON SENIOR INDEBTEDNESS OF A GUARANTOR.
A Guarantor shall not make any payment or
116
108
distribution upon or in respect of its Security Guarantee if (i) a default in
the payment of any Obligations with respect to Designated Senior Debt of such
Guarantor occurs and is continuing (a "Guarantor payment default") or any other
default on Designated Senior Debt of such Guarantor occurs and the maturity of
such Designated Senior Debt of such Guarantor is accelerated in accordance with
its terms or (ii) a default, other than a Guarantor payment default, occurs and
is continuing with respect to Designated Senior Debt of such Guarantor that
permits holders of the Designated Senior Debt of such Guarantor as to which such
default relates to accelerate its maturity (a "Guarantor non-payment default")
and, in the case of this clause (ii) only, the Trustee receives a notice of such
default (a "Guarantor Payment Blockage Notice") from a Representative for, or
the holders of a majority of the outstanding principal amount of, any issue of
Designated Senior Debt of such Guarantor. Payments on the Security Guarantee of
such Guarantor may and shall be resumed (a) in the case of a Guarantor payment
default, upon the date on which such default is cured or waived and, in the case
of Designated Senior Debt of such Guarantor that has been accelerated, such
acceleration has been rescinded, and (b) in case of a Guarantor non-payment
default, the earlier of the date on which such Guarantor non-payment default is
cured or waived or 179 days after the date on which the applicable Guarantor
Payment Blockage Notice is received, unless the maturity of any Designated
Senior Debt of such Guarantor has been accelerated. No new period of payment
blockage may be commenced on account of any Guarantor non-payment default unless
and until 360 days have elapsed since the initial effectiveness of the
immediately prior Guarantor Payment Blockage Notice. No Guarantor non-payment
default that existed or was continuing on the date of delivery of any Guarantor
Payment Blockage Notice to the Trustee (it being acknowledged that (x) any
action of such Guarantor or any of its Subsidiaries occurring subsequent to
delivery of a Guarantor Payment Blockage Notice that would give rise to any
event of default pursuant to any provision under which an event of default
previously existed (or was continuing at the time of delivery of such Guarantor
Payment Blockage Notice) shall constitute a new event of default for this
purpose and (y) any breach of a financial covenant giving rise to a Guarantor
non-payment default for a period ending subsequent to the date of delivery of
respective Guarantor Payment Blockage Notice shall constitute a new event of
default for this purpose) shall be, or be made, the basis for a subsequent
Guarantor Payment Blockage Notice unless such default shall have been cured or
waived for a period of not less than 90 days.
117
109
SECTION 12.04. DEMAND FOR PAYMENT. If payment of the
Securities is accelerated because of an Event of Default and a demand for
payment is made on a Guarantor pursuant to Article XI, the Trustee shall
promptly notify the Company, and the Company shall promptly (and in no event
more than five Business Days after receipt of such notice) notify the
Representative of the lenders under the New Credit Facility of the acceleration.
If any Indebtedness under the New Credit Facility is outstanding, such Guarantor
may not pay its Obligations under its Security Guarantee until five Business
Days after the holders of such Indebtedness receive notice of such demand and,
thereafter, may pay its Obligations under its Security Guarantee only if this
Article XII otherwise permits payment at that time.
SECTION 12.05. WHEN DISTRIBUTION MUST BE PAID OVER. If a
distribution is made to Securityholders that because of this Article XII should
not have been made to them, the Securityholders who receive the distribution
shall hold it in trust for holders of Senior Indebtedness of the relevant
Guarantor and pay it over to them as their interests may appear.
SECTION 12.06. SUBROGATION. After all Senior Indebtedness of a
Guarantor is paid in full and until the Securities are paid in full,
Securityholders shall be subrogated to the rights of holders of Senior
Indebtedness of such Guarantor to receive distributions applicable to Senior
Indebtedness of such Guarantor. A distribution made under this Article XII to
holders of Senior Indebtedness of such Guarantor which otherwise would have been
made to Securityholders is not, as between such Guarantor and Securityholders, a
payment by such Guarantor on Senior Indebtedness of such Guarantor.
SECTION 12.07. RELATIVE RIGHTS. This Article XII defines the
relative rights of Securityholders and holders of Senior Indebtedness of a
Guarantor. Nothing in this Indenture shall:
(1) impair, as between a Guarantor and Securityholders, the
obligation of a Guarantor which is absolute and unconditional, to pay
its Obligations under its Security Guarantee to the extent set forth in
Article XI; or
(2) prevent the Trustee or any Securityholder from exercising
its available remedies upon a default by a Guarantor under its
Obligations under its Security Guarantee, subject to the rights of
holders of Senior
118
110
Indebtedness of such Guarantor to receive distributions otherwise
payable to Securityholders.
SECTION 12.08. SUBORDINATION MAY NOT BE IMPAIRED BY A
GUARANTOR. No right of any holder of Senior Indebtedness of a Guarantor to
enforce the subordination of the Obligations under the Security Guarantee of
such Guarantor shall be impaired by any act or failure to act by such Guarantor
or by its failure to comply with this Indenture.
SECTION 12.09. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding Section 12.03, the Trustee or Paying Agent may continue to make
payments on the Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two Business Days prior to the date of such payment, a Trust
Officer of the Trustee receives notice satisfactory to it that payments may not
be made under this Article XII. A Guarantor, the Registrar or co-registrar, the
Paying Agent, a Representative or a holder of Senior Indebtedness of a Guarantor
may give the notice; PROVIDED, HOWEVER, that, if an issue of Senior Indebtedness
of a Guarantor has a Representative, only the Representative may give the
notice. The Trustee shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself or itself to be a holder of any Senior
Indebtedness of a Guarantor (or a Representative of such holder) to establish
that such notice has been given by a holder of such Senior Indebtedness or
Representative thereof.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness of a Guarantor with the same rights it would have if it were
not Trustee. The Registrar and co-registrar and the Paying Agent may do the same
with like rights. The Trustee shall be entitled to all the rights set forth in
this Article XII with respect to any Senior Indebtedness of a Guarantor which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness of such Guarantor; and nothing in Article VII shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article XII shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
7.07.
SECTION 12.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of Senior
Indebtedness of a
119
111
Guarantor, the distribution may be made and the notice given to their
Representative (if any).
SECTION 12.11. ARTICLE XII NOT TO PREVENT EVENTS OF DEFAULT OR
LIMIT RIGHT TO ACCELERATE. The failure of a Guarantor to make a payment on any
of its Obligations under its Security Guarantee by reason of any provision in
this Article XII shall not be construed as preventing the occurrence of a
default by such Guarantor under its Security Guarantee. Nothing in this Article
XII shall have any effect on the right of the Securityholders or the Trustee to
make a demand for payment on a Guarantor pursuant to Article XII.
SECTION 12.12. TRUSTEE ENTITLED TO RELY. Upon any payment or
distribution pursuant to this Article XII, the Trustee and the Securityholders
shall be entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 12.02
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Securityholders or (iii) upon the Representatives for the holders of Senior
Indebtedness of a Guarantor for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior
Indebtedness of a Guarantor and other Indebtedness of a Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article XII. In the event that
the Trustee determines, in good faith, that evidence is required with respect to
the right of any Person as a holder of Senior Indebtedness of a Guarantor to
participate in any payment or distribution pursuant to this Article XII, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness of such
Guarantor held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and other facts pertinent to the
rights of such Person under this Article XII, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment. The
provisions of Sections 7.01 and 7.02 shall be applicable to all actions or
omissions of actions by the Trustee pursuant to this Article XI.
SECTION 12.13. TRUSTEE TO EFFECTUATE SUBORDINATION. Each
Securityholder by accepting a Security authorizes and directs the Trustee on his
behalf to take
120
112
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination between the Securityholders and the holders of Senior Indebtedness
of each of the Guarantors as provided in this Article XII and appoints the
Trustee as attorney-in-fact for any and all such purposes.
SECTION 12.14. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS OF A GUARANTOR. The Trustee shall not be deemed to owe any
fiduciary or other duty to the holders of Senior Indebtedness of a Guarantor and
shall not be liable to any such holders if it shall mistakenly pay over or
distribute to Securityholders or the relevant Guarantor or any other Person,
money or assets to which any holders of Senior Indebtedness of such Guarantor
shall be entitled by virtue of this Article XII or otherwise.
SECTION 12.15. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS OF A
GUARANTOR ON SUBORDINATION PROVISIONS. Each Securityholder by accepting a
Security acknowledges and agrees that the foregoing subordination provisions
are, and are intended to be, an inducement and a consideration to each holder of
any Senior Indebtedness of a Guarantor, whether such Senior Indebtedness was
created or acquired before or after the issuance of the Securities, to acquire
and continue to hold, or to continue to hold, such Senior Indebtedness and such
holder of Senior Indebtedness shall be deemed conclusively to have relied on
such subordination provisions in acquiring and continuing to hold, or in
continuing to hold, such Senior Indebtedness.
ARTICLE XIII
Miscellaneous
-------------
SECTION 13.01. TRUST INDENTURE ACT CONTROLS. If any provision
of this Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 13.02. NOTICES. Any notice or communication shall be
in writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company:
Xxxxxx Holding Co. (DE), Inc.
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
121
113
Xxxxxxxxxx, Xxxxxxxx 00000
Attention of: Xxxx X. Xxxxxx, with copies to:
Xxxxxxxxxxx X. Xxxxxxx
Investcorp International Inc.
000 Xxxx Xxxxxx, 00 Xxxx
Xxx Xxxx, XX 00000
Xxxxxx, Xxxx & Xxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Esq.
if to the Trustee:
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
telecopier no.: (000) 000-0000
Attention of: Corporate Trust Administration
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Securityholder shall
be made in compliance with Section 313(c) of the TIA and mailed to the
Securityholder at the Securityholder's address as it appears on the registration
books of the Registrar and shall be sufficiently given 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 13.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Guarantors, the Trustee, the Registrar and anyone
else shall have the protection of TIA Section 312(c).
122
114
SECTION 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT. Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, at the request of the
Trustee the Company shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 13.05 hereof) stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 13.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
To the extent applicable, the Company shall comply with the provisions of
Section 314(c)(3) of the TIA.
SECTION 13.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that the individual 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 individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 13.06. WHEN SECURITIES DISREGARDED. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver
123
115
or consent, Securities owned by the Company or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company shall be disregarded and deemed not to be outstanding,
except that, for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Securities
which the Trustee actually knows are so owned shall be so disregarded. Also,
subject to the foregoing, only Securities outstanding at the time shall be
considered in any such determination.
SECTION 13.07. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar and the Paying Agent may make reasonable rules
for their functions.
SECTION 13.08. LEGAL HOLIDAYS. A "Legal Holiday" is a
Saturday, a Sunday or a day on which banking institutions are not required to
be open in the State of New York. If a payment date is a Legal Holiday, payment
shall be made on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period. If a regular record date is a
Legal Holiday, the record date shall not be affected.
SECTION 13.09. GOVERNING LAW. THIS INDENTURE AND
THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 13.10. NO RECOURSE AGAINST OTHERS. A director,
officer, incorporator, employee, stockholder or Affiliate as such, of the
Company or any Guarantor shall not have any liability for any obligations of the
Company or any Guarantor under the Securities or this Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. By
accepting a Security, each Securityholder waives and releases all such
liability. The waiver and release shall be part of the consideration for the
issue of the Securities.
SECTION 13.11. SUCCESSORS. All agreements of the Company and
each Guarantor in this Indenture and the Securities shall bind their successors.
All agreements of the Trustee in this Indenture shall bind its successors.
SECTION 13.12. MULTIPLE ORIGINALS. The parties may sign any
number of copies of this Indenture. Each
124
116
signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.
SECTION 13.13. TABLE OF CONTENTS; HEADINGS. The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
XXXXXX HOLDING CO. (DE), INC.,
by /s/
---------------------------
Name:
Title:
XXXXXX HOLDING CO. (PA), INC.,
by /s/
---------------------------
Name:
Title:
XXXXXX CO.,
by /s/
---------------------------
Name:
Title:
GOLD MEDAL LADDER COMPANY,
by /s/
---------------------------
Name:
Title:
125
117
KENTUCKY LADDER COMPANY,
by /s/
---------------------------
Name:
Title:
FLORIDA LADDER COMPANY,
by /s/
---------------------------
Name:
Title:
XXXXXX MANAGEMENT CO.,
by /s/
---------------------------
Name:
Title:
XXXXXX FINANCIAL INC.,
by /s/
---------------------------
Name:
Title:
R.D. ARIZONA LADDER CORP.,
by /s/
---------------------------
Name:
Title:
WIP TECHNOLOGIES, INC.,
by /s/
---------------------------
Name:
Title:
126
118
ARDEE INVESTMENT CO., INC.,
by /s/
---------------------------
Name:
Title:
OLYMPUS PROPERTIES, INC.,
by /s/
---------------------------
Name:
Title:
PHOENIX MANAGEMENT SERVICES,
INC.,
by /s/
---------------------------
Name:
Title:
IBJ XXXXXXXX BANK & TRUST
COMPANY, as Trustee,
by /s/
---------------------------
Name:
Title:
127
EXHIBIT A
[FORM OF FACE OF INITIAL SECURITY]
[GLOBAL SECURITIES LEGEND]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR 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/
[RESTRICTED SECURITIES LEGEND]
THIS SECURITY HAS 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
FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED PRIOR TO THE LATER OF (X) TWO YEARS AFTER THE LATER OF (I)
THE ISSUANCE HEREOF (OR A PREDECESSOR SECURITY HERETO) OR (II) THE DATE THIS
SECURITY WAS ACQUIRED FROM AN AFFILIATE OF THE COMPANY OR (Y) THREE MONTHS AFTER
THE LAST DATE THAT THIS SECURITY WAS OWNED BY ANY AFFILIATE OF THE COMPANY, IN
EITHER CASE OTHER THAN (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
--------
1 This paragraph should only be added if the security is issued in global
form.
128
2
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A 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 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 RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS
ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A TRANSACTION INVOLVING A
MINIMUM PRINCIPAL AMOUNT OF $250,000 FOR SUCH SECURITIES 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 OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN
THE CASE OF ANY OF THE FOREGOING CLAUSES (A) THROUGH (F), A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED
AND DELIVERED BY THE TRANSFEROR TO THE COMPANY AND THE TRUSTEE. THIS LEGEND WILL
BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE LATER OF (X) TWO YEARS AFTER
THE LATER OF (I) THE ISSUANCE HEREOF (OR A PREDECESSOR SECURITY HERETO) OR (II)
THE DATE THIS SECURITY WAS ACQUIRED FROM AN AFFILIATE OF THE COMPANY OR (Y)
THREE MONTHS AFTER THE LAST DATE THAT THIS SECURITY WAS OWNED BY ANY AFFILIATE
OF THE COMPANY.
XXXXXX HOLDING CO. (DE), INC.
10% SENIOR SUBORDINATED NOTE DUE 2007
No. ___ CUSIP No.
$___________
XXXXXX HOLDING CO. (DE), INC., a Delaware corporation (the
"Company"), promises to pay to ______________ ,or registered assigns, the
principal sum of ___________ on November 15, 2007.
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
129
3
Additional provisions of this Security are set forth on the
other side of this Security.
Dated:
XXXXXX HOLDING CO. (DE), INC.,
by
-------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
IBJ XXXXXXXX BANK & TRUST COMPANY
as Trustee, certifies that
this is one of the Securities [Seal]
referred to in the Indenture,
by
-------------------------------
Authorized Signatory
130
4
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
10% Senior Subordinated Note due 2007
1. INTEREST
XXXXXX HOLDING CO. (DE), INC., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Security at
the rate per annum shown above and shall pay Liquidated Damages, if any, payable
pursuant to the relevant Registration Rights Agreement.
The Company will pay interest and Liquidated Damages, if any,
semiannually on May 15 and November 15 of each year. 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 [the Issue Date with respect to this Security].
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue principal at the rate borne by
the Securities, and it shall pay interest on overdue installments of interest at
the same rate to the extent lawful.
2. METHOD OF PAYMENT
The Company will pay interest (except defaulted interest) on
and Liquidated Damages, if any, in respect of the Securities to the Persons who
are registered holders of Securities at the close of business on the May 1 or
November 1 next preceding the interest payment date even if Securities are
canceled after the record date and on or before the interest payment date.
Holders must surrender Securities to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. However, the Company may pay principal and interest by check
payable in such money or by wire transfer of federal funds.
3. PAYING AGENT AND REGISTRAR
Initially, IBJ XXXXXXXX BANK & TRUST COMPANY (the "Trustee")
will act as Paying Agent and Registrar. The Company may appoint and change any
Paying Agent, Registrar
131
5
or co-registrar without notice to the Holders. The Company or any domestically
organized Wholly Owned Restricted Subsidiary may act as Paying Agent, Registrar
or co-registrar.
4. INDENTURE
The Company issued the Securities under an Indenture dated as
of November 24, 1997 (the "Indenture"), among the Company, the Guarantors and
the Trustee. 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 of
1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date of the Indenture
(the "Act"). Terms defined in the Indenture and not defined herein have the
meanings ascribed thereto in the Indenture. The Securities are subject to all
such terms, and Securityholders are referred to the Indenture and the Act for a
statement of those terms.
The Securities are unsecured senior subordinated obligations
of the Company and are limited to $270,000,000 in aggregate principal amount
outstanding, of which $135,000,000 in aggregate principal amount will be
initially issued on the Closing Date. Subject to the conditions set forth in the
Indenture, the Company may issue up to an additional $135,000,000 aggregate
principal amount of Additional Securities. This Security is one of the Initial
Securities referred to in the Indenture. The Securities include the Initial
Securities, the Additional Securities and any Exchange Securities and Private
Exchange Securities issued in exchange for the Initial Securities pursuant to
the Indenture. The Initial Securities, the Additional Securities, the Exchange
Securities and the Private Exchange Securities are treated as a single class of
securities under the Indenture. The Indenture imposes certain limitations on the
Incurrence of Indebtedness by the Company and its Restricted Subsidiaries; the
payment of dividends and other payments by the Company and its Restricted
Subsidiaries; Investments; sales of assets of the Company and Restricted
Subsidiaries; certain transactions with Affiliates; the lines of business in
which Holding and the Company and its Restricted Subsidiaries may operate;
Liens; and consolidations, mergers and transfers of all or substantially all of
the Company's or a Guarantor's assets. In addition, the Indenture prohibits
certain restrictions on distributions from Restricted Subsidiaries.
132
6
5. OPTIONAL REDEMPTION
Except as set forth in the next two paragraphs, the Securities
may not be redeemed at the Company's option prior to November 15, 2002.
Thereafter, the Securities will be subject to redemption at any time at the
option of the Company, in whole or in part, at the redemption prices (expressed
as percentages of principal amount) set forth below plus accrued and unpaid
interest and Liquidated Damages thereon, if any, to the applicable redemption
date, (subject to the right of Holders on the relevant record date to receive
interest due on the relevant interest payment date), if redeemed during the
twelve-month period beginning on November 15 of the years indicated below:
Redemption
Period Price
------ ----------
2002 105.000%
2003 103.333%
2004 101.667%
2005 and thereafter 100.000%
In addition, at any time and from time to time, prior to
November 15, 2000, the Company may redeem up to 35% of the sum of (i) the
original aggregate principal amount of Securities (other than Additional
Securities) and (ii) the original aggregate principal amount of any Additional
Securities at a redemption price of 110% of the principal amount thereof, plus
the accrued and unpaid interest and Liquidated Damages thereon, if any, to the
redemption date, (subject to the right of Holders on the relevant record date to
receive interest due on the relevant interest payment date), with the net cash
proceeds of a public offering of common stock of the Company or Holding;
provided that at least 65% of the sum of (i) the original aggregate principal
amount of Securities (other than Additional Securities) and (ii) the original
aggregate principal amount of any Additional Securities remains outstanding
immediately after the occurrence of such redemption; and provided, further, that
such redemption shall occur within 60 days of the date of the closing of such
public offering.
At any time on or prior to November 15, 2002, the Securities
may be redeemed as a whole but not in part at the option of the Company upon the
occurrence of a Change of Control, at a redemption price equal to 100% of the
principal amount thereof plus the Applicable Premium as of, and accrued but
unpaid interest and Liquidated Damages,
133
7
if any, to, the redemption date, subject to the right ofHolders on the relevant
record date to receive interest due on the relevant interest payment date. In no
event may any such redemption occur more than 90 days after the occurrence of
such Change of Control.
6. NOTICE OF REDEMPTION
Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at its registered address all in accordance
with the Indenture. If less than all of the Securities are to be redeemed at any
time, selection of Securities for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which the Securities are listed, or, if the Securities are not so
listed, on a pro rata basis, by lot or by such method as the Trustee shall deem
fair and appropriate; PROVIDED that no Securities of $1,000 or less shall be
redeemed in part. If money sufficient to pay the redemption price of and accrued
interest (if any) on all Securities (or portions thereof) to be redeemed on the
redemption date is deposited with the Paying Agent on or before the redemption
date and certain other conditions are satisfied, on and after such date interest
ceases to accrue on such Securities (or such portions thereof) called for
redemption.
7. REPURCHASE AT THE OPTION OF THE HOLDER
Upon a Change of Control, any Holder of Securities will have
the right, subject to certain conditions set forth in the Indenture, to cause
the Company to repurchase all or any part of the Securities of such Holder at a
purchase price equal to 101% of the principal amount of the Securities to be
repurchased plus accrued and unpaid interest and Liquidated Damages thereon, (if
any) to the date of repurchase (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date that is on or prior to the date of repurchase) as provided in, and subject
to the terms of, the Indenture.
134
8
8. SUBORDINATION
The Securities are subordinated to Senior Indebtedness of the
Company, as defined in the Indenture. To the extent provided in the Indenture,
Senior Indebtedness of the Company must be paid before the Securities may be
paid. The Company agrees, and each Securityholder by accepting a Security
agrees, to the subordination provisions contained in the Indenture and
authorizes the Trustee to give it effect and appoints the Trustee as
attorney-in-fact for such purpose.
9. DENOMINATIONS; TRANSFER; EXCHANGE
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay
any taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or to transfer or exchange any Securities for a
period of 15 days prior to a selection of Securities to be redeemed or 15 days
before an interest payment date.
10. PERSONS DEEMED OWNERS
The registered Holder of this Security may be treated as the
owner of it for all purposes.
11. UNCLAIMED MONEY
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
135
9
12. DISCHARGE AND DEFEASANCE
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
13. AMENDMENT, WAIVER
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount outstanding of the Securities
and (ii) any past default or noncompliance with any provision of the Indenture
(other than payment of principal, premium, if any, Liquidated Damages, if any,
and interest) may be waived with the consent of the Holders of a majority in
principal amount then outstanding of the Securities. Subject to certain
exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company and the Trustee may amend the Indenture or the
Securities to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Securities in addition to or in place of certificated Securities
(provided that the uncertificated Securities are issued in registered form for
purposes of Section 163(f) of the Code, or in a manner such that the
uncertificated Securities are described in Section 163(f)(2)(B) of the Code), to
provide for the assumption of the Company's or any Guarantor's obligations to
Holders of Securities in the case of a merger, consolidation or sale of assets,
to release any Security Guarantee in accordance with the provisions of the
Indenture, to provide for additional Guarantors, to make any change that would
provide any additional rights or benefits to the Holders of Securities or that
does not adversely affect the legal rights under this Indenture of any such
Holder, to comply with requirements of the SEC in order to effect or maintain
the qualification of the Indenture under the TIA or to provide for the issuance
of Additional Securities in compliance with Article II and Section 4.03 of the
Indenture.
136
10
14. DEFAULTS AND REMEDIES
Under the Indenture, an Event of Default occurs if: (i) the
Company defaults in any payment of interest on, or Liquidated Damages with
respect to, any Security when the same becomes due and payable, whether or not
such payment shall be prohibited by Article X of the Indenture, and such default
continues for a period of 30 days; (ii) the Company defaults in the payment of
the principal of any Security when the same becomes due and payable at its
Stated Maturity, upon optional redemption, upon declaration or otherwise,
whether or not such payment shall be prohibited by Article X of the Indenture;
(iii) the Company fails to comply with other covenants and agreements in the
Indenture, subject to applicable grace periods as set forth in the Indenture;
(iv) certain accelerations (including failure to pay within any grace period
after final maturity) of other Indebtedness of the Company or any Restricted
Subsidiary that is a Significant Subsidiary occur if the amount accelerated (or
so unpaid) exceeds $20,000,000 or its foreign currency equivalent; (v) certain
events of bankruptcy, insolvency or reorganization with respect to the Company
and any Restricted Subsidiary which is a Significant Subsidiary; (vi) certain
judgments or decrees for the payment of money in excess of $20,000,000 or its
foreign currency equivalent against the Company or any Restricted Subsidiary
that is a Significant Subsidiary; and (vii) except as is permitted by the
Indenture, a Security Guarantee by Holding or a Guarantor that is a Significant
Subsidiary shall be held in any judicial proceeding to be unenforceable or
invalid or shall for any reason cease to be in full force and effect (other than
in accordance with its terms) or any Guarantor denies or disaffirms its
obligations under the Indenture or its Security Guarantee. If an Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the Securities may declare all the Securities to be due and
payable within five days after notice is given pursuant to the Indenture.
Certain events of bankruptcy or insolvency are Events of Default that will
result in the Securities being due and payable immediately.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may with hold from Securityholders notice of any continuing
Default
137
11
(except a Default in payment of principal, premium, if any, or interest)
if and so long as a committee of its Trust Officers in good faith determines
that withholding notice is in the interest of the Holders.
15. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the Act, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
16. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES
AND STOCKHOLDERS
No director, officer, employee, incorporator, stockholder or
Affiliate of the Company, as such, will have any liability for any obligations
of the Company under the Securities, the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. No director,
officer, employee, incorporator, stockholder or Affiliate of any of the
Guarantors, as such, will have any liability for any obligations of the
Guarantors under the Security Guarantees, the Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of Securities and Security Guarantees by accepting a Security and a
Security Guarantee waives and releases all such liabilities. The waiver and
release are part of the consideration for issuance of the Securities and the
Security Guarantees.
17. GOVERNING LAW
THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS
OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
138
12
18. AUTHENTICATION
This Security shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent) manually signs the
certificate of authentication on the other side of this Security.
19. ABBREVIATIONS
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
20. CUSIP NUMBERS
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company has caused CUSIP numbers
to be printed on the Securities and have directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN
REQUEST AND WITHOUT CHARGE TO THE SECURITY HOLDER A COPY OF THE INDENTURE WHICH
HAS IN IT THE TEXT OF THIS SECURITY IN LARGER TYPE. REQUESTS MAY BE MADE TO:
XXXXXX HOLDING CO. (DE), INC.
0000 XXXXX XXXXXX XXXXXX, XXXXX 0000
XXXXXXXXXX, XXXXXXXX 00000
ATTENTION OF SECRETARY
139
13
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ________________________ agent to transfer this Security
on the books of the Company. The agent may substitute another to act for him.
Date: Your Signature:
------------------ ----------------------------------------
Signature Guarantee:
------------------------------------------------------------
(Signature must be guaranteed by a
participant in a recognized signature
guarantee medallion program)
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
140
14
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF
TRANSFER RESTRICTED SECURITIES
Reference is hereby made to that certain Indenture dated November 24, 1997 (the
"Indenture") between Xxxxxx Holding Company (DE), Inc., as Issuer (the
"Company"), the Initial Guarantors (as defined therein) and IBJ Xxxxxxxx Bank &
Trust Company, as trustee (the "Trustee"). Capitalized terms used but not
defined herein shall have the meanings set forth in the Indenture.
This certificate relates to $_________ principal amount of Securities held in
(check applicable space) ____ book-entry or _____ definitive form by the
undersigned.
The undersigned (check one box below):
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depository a
Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated
above);
[ ] has requested the Trustee by written order to exchange
or register the transfer of a Security or Securities.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the periods referred to in Rule
144(k) under the Securities Act, the undersigned confirms that such Securities
are being transferred in accordance with its terms:
CHECK ONE BOX BELOW:
(1) [ ] to the Company; or
(2) [ ] pursuant to an effective registration
statement under the Securities Act of
1933; or
(3) [ ] inside the United States to a "qualified
institutional buyer" (as defined in Rule
144A under the Securities Act of 1933) that
purchases for its own account or for the
account of a qualified institutional buyer
to whom notice is
141
15
given that such transfer is being made in
reliance on Rule 144A under the Securities
Act, in each case pursuant to and in
compliance with Rule 144A under the
Securities Act of 1933; or
(4) [ ] outside the United States in an offshore
transaction within the meaning of Regulation
S under the Securities Act in compliance
with Rule 904 under the Securities Act of
1933; or
(5) [ ] to an institutional "accredited
investor" (as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act
of 1933) that has furnished to the
Trustee a signed letter containing
certain representations and agreements
(the form of which letter is attached to
the Indenture as Exhibit D and which may
be obtained from the Trustee); or
(6) [ ] pursuant to another available exemption
from registration provided by Rule 144 under
the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Securities evidenced by this certificate
in the name of any person other than the registered holder
thereof; PROVIDED, HOWEVER, that if box (4), (5) or (6) is
checked, the Trustee may require, prior to registering any
such transfer of the Securities, such legal opinions,
certifications and other information as the Company has
reasonably requested to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities
Act of 1933, such as the exemption provided by Rule 144 under
such Act.
------------------------
Signature
Signature Guarantee:
-----------------------------------------------------------
(Signature must be guaranteed by a
participant in a recognized signature
guarantee medallion program)
142
16
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933 ("Rule 144A"), and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is aware
that the transferor is relying upon the undersigned's foregoing representations
in order to claim the exemption from registration provided by Rule 144A.
Dated:
----------------------------- ----------------------------------
NOTICE: To be executed by
an executive officer
143
17
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security
have been made:
Date of Amount of decrease Amount of increase Principal amount Signature of
Exchange in Principal in Principal of this Global authorized officer
Amount of this Amount of this Security following of Trustee or
Global Security Global Security such decrease or Securities
increase Custodian
144
18
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.06 or 4.08 of the Indenture, check the box:
[ ] 4.06 Asset Sale [ ] 4.08 Change of Control
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.06 or 4.08 of the Indenture,
state the amount: $______.
Date: Your Signature:
--------------------- -----------------------------------
(Sign exactly as your name appears
on the other side of the Security)
------------------
Tax I.D. number
Signature Guarantee:
-----------------------------------------------------------
(Signature must be guaranteed by a
participant in a recognized signature
guarantee medallion program)
145
EXHIBIT B
[FORM OF FACE OF EXCHANGE SECURITY]
[Global Securities Legend]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR 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. 2/
XXXXXX HOLDING CO. (DE), INC.
10% SENIOR SUBORDINATED NOTE DUE 2007
No. __ CUSIP No. _________
$
XXXXXX HOLDING CO. (DE), INC., a Delaware corporation (the
"Company"), promises to pay to _________________ , or registered assigns, the
principal sum of $___________ on November 15, 2007.
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
--------
2 This paragraph should only be added if the Security is issued in global
form.
146
2
Additional provisions of this Security are set forth on the
other side of this Security.
Dated:
XXXXXX HOLDING CO. (DE), INC.,
by
--------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
IBJ XXXXXXXX BANK & TRUST
COMPANY, as Trustee,
certifies that this is [Seal]
one of the Securities
referred to in the
Indenture,
by
-------------------------------
Authorized Signatory
147
3
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY]
10% Senior Subordinated Note due 2007
1. INTEREST
XXXXXX HOLDING CO. (DE), INC., a Delaware corporation (the
"Company") promises to pay interest on the principal amount of this Security at
the rate per annum shown above.
The Company will pay interest semiannually on May 15 and
November 15 of each year. Interest on the Securities will accrue from the most
recent date to which interest has been paid on the Initial Security for which
this Exchange Security was issued or, if no interest has been paid, from [the
Issue Date with respect to this Security]. Interest will be computed on the
basis of a 360-day year of twelve 30-day months. The Company shall pay interest
on overdue principal at the rate borne by the Securities, and it shall pay
interest on overdue installments of interest at the same rate to the extent
lawful.
2. METHOD OF PAYMENT
The Company will pay interest (except defaulted interest) on
and, if any, in respect of the Securities to the Persons who are registered
holders of Securities at the close of business on the May 1 or November 1 next
preceding the interest payment date even if Securities are canceled after the
record date and on or before the interest payment date. Holders must surrender
Securities to a Paying Agent to collect principal payments. The Company will pay
principal and interest in money of the United States that at the time of payment
is legal tender for payment of public and private debts. However, the Company
may pay principal and interest by check payable in such money or by wire
transfer of federal funds.
3. PAYING AGENT AND REGISTRAR
Initially, IBJ XXXXXXXX BANK & TRUST COMPANY (the "Trustee")
will act as Paying Agent and Registrar. The Company may appoint and change any
Paying Agent, Registrar
148
4
or co-registrar without notice to the Holders. The Company or any domestically
organized Wholly Owned Restricted Subsidiary may act as Paying Agent, Registrar
or co-registrar.
4. INDENTURE
The Company issued the Securities under an Indenture dated as
of November 24, 1997 (the "Indenture"), among the Company, the Guarantors and
the Trustee. 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 of
1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date of the
Indenture (the "Act"). Terms defined in the Indenture and not defined herein
have the meanings ascribed thereto in the Indenture. The Securities are subject
to all such terms, and Securityholders are referred to the Indenture and the
Act for a statement of those terms.
The Securities are unsecured senior subordinated obligations
of the Company and are limited to $270,000,000 in aggregate principal amount
outstanding, of which $135,000,000 in aggregate principal amount will be
initially issued on the Closing Date. Subject to the conditions set forth in the
Indenture, the Company may issue up to an additional $135,000,000 aggregate
principal amount of Additional Securities. The Indenture imposes certain
limitations on the Incurrence of Indebtedness by the Company and its Restricted
Subsidiaries; the payment of dividends and other payments by the Company and its
Restricted Subsidiaries; Investments; sales of assets of the Company and
Restricted Subsidiaries; certain transactions with Affiliates; the lines of
business in which Holding and the Company and its Restricted Subsidiaries may
operate; Liens; and consolidations, mergers and transfers of all or
substantially all of the Company's or a Guarantor's assets. In addition, the
Indenture prohibits certain restrictions on distributions from Restricted
Subsidiaries.
5. OPTIONAL REDEMPTION
Except as set forth in the next two paragraphs, the Securities
may not be redeemed at the Company's option prior to November 15, 2002.
Thereafter, the Securities will be subject to redemption at any time at the
option of the Company, in whole or in part, at the redemption prices (expressed
as percentages of principal amount) set forth
149
5
below plus accrued and unpaid interest thereon, if any, to the applicable
redemption date, (subject to the right of Holders on the relevant record date to
receive interest due on the relevant interest payment date), if redeemed during
the twelve-month period beginning on November 15 of the years indicated below:
Redemption
Period Price
------ ----------
2002 105.000%
2003 103.333%
2004 101.667%
2005 and thereafter 100.00%
In addition, at any time and from time to time, prior to
November 15, 2000, the Company may redeem up to 35% of the sum of (i) the
original aggregate principal amount of Securities (other than Additional
Securities) and (ii) the original aggregate principal amount of any Additional
Securities at a redemption price of 110% of the principal amount thereof, plus
the accrued and unpaid interest thereon, if any, to the redemption date,
(subject to the right of Holders on the relevant record date to receive interest
due on the relevant interest payment date), with the net cash proceeds of a
public offering of common stock of the Company or Holding; provided that at
least 65% of the sum of (i) the original aggregate principal amount of
Securities (other than Additional Securities) and (ii) the original aggregate
principal amount of any Additional Securities remains outstanding immediately
after the occurrence of such redemption; and provided, further, that such
redemption shall occur within 60 days of the date of the closing of such public
offering.
At any time on or prior to November 15, 2002, the Securities
may be redeemed as a whole but not in part at the option of the Company upon the
occurrence of a Change of Control, at a redemption price equal to 100% of the
principal amount thereof plus the Applicable Premium as of, and accrued but
unpaid interest and, if any, to, the redemption date, subject to the right of
Holders on the relevant record date to receive interest due on the relevant
interest payment date. In no event may any such redemption occur more than 90
days after the occurrence of such Change of Control.
150
6
6. NOTICE OF REDEMPTION
Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at its registered address all in accordance
with the Indenture. If less than all of the Securities are to be redeemed at any
time, selection of Securities for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which the Securities are listed, or, if the Securities are not so
listed, on a pro rata basis, by lot or by such method as the Trustee shall deem
fair and appropriate; PROVIDED that no Securities of $1,000 or less shall be
redeemed in part. If money sufficient to pay the redemption price of and accrued
interest (if any) on all Securities (or portions thereof) to be redeemed on the
redemption date is deposited with the Paying Agent on or before the redemption
date and certain other conditions are satisfied, on and after such date interest
ceases to accrue on such Securities (or such portions thereof) called for
redemption.
7. REPURCHASE AT THE OPTION OF THE HOLDER
Upon a Change of Control, any Holder of Securities will have
the right, subject to certain conditions set forth in the Indenture, to cause
the Company to repurchase all or any part of the Securities of such Holder at a
purchase price equal to 101% of the principal amount of the Securities to be
repurchased plus accrued and unpaid interest thereon, (if any) to the date of
repurchase (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment date that is on or
prior to the date of repurchase) as provided in, and subject to the terms of,
the Indenture.
8. SUBORDINATION
The Securities are subordinated to Senior Indebtedness of the
Company, as defined in the Indenture. To the extent provided in the Indenture,
Senior Indebtedness of the Company must be paid before the Securities may be
paid. The Company agrees, and each Securityholder by accepting a Security
agrees, to the subordination provisions contained in the Indenture and
authorizes the Trustee to
151
7
give it effect and appoints the Trustee as attorney-in-fact for such purpose.
9. DENOMINATIONS; TRANSFER; EXCHANGE
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay
any taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or to transfer or exchange any Securities for a
period of 15 days prior to a selection of Securities to be redeemed or 15 days
before an interest payment date.
10. PERSONS DEEMED OWNERS
The registered Holder of this Security may be treated as the
owner of it for all purposes.
11. UNCLAIMED MONEY
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
12. DISCHARGE AND DEFEASANCE
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
152
8
13. AMENDMENT, WAIVER
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount outstanding of the Securities
and (ii) any past default or noncompliance with any provision of the Indenture
(other than payment of principal, premium, if any, and interest) may be waived
with the consent of the Holders of a majority in principal amount then
outstanding of the Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities to cure any ambiguity, defect
or inconsistency, to provide for uncertificated Securities in addition to or in
place of certificated Securities (provided that the uncertificated Securities
are issued in registered form for purposes of Section 163(f) of the Code, or in
a manner such that the uncertificated Securities are described in Section
163(f)(2)(B) of the Code), to provide for the assumption of the Company's or any
Guarantor's obligations to Holders of Securities in the case of a merger,
consolidation or sale of assets, to release any Security Guarantee in accordance
with the provisions of the Indenture, to provide for additional Guarantors, to
make any change that would provide any additional rights or benefits to the
Holders of Securities or that does not adversely affect the legal rights under
this Indenture of any such Holder, to comply with requirements of the SEC in
order to effect or maintain the qualification of the Indenture under the TIA or
to provide for the issuance of Additional Securities in compliance with Article
II and Section 4.03 of the Indenture.
14. DEFAULTS AND REMEDIES
Under the Indenture, an Event of Default occurs if: (i) the
Company defaults in any payment of interest on, or with respect to, any Security
when the same becomes due and payable, whether or not such payment shall be
prohibited by Article X of the Indenture, and such default continues for a
period of 30 days; (ii) the Company defaults in the payment of the principal of
any Security when the same becomes due and payable at its Stated Maturity, upon
optional redemption, upon declaration or otherwise, whether or not such payment
shall be prohibited by Article X of the Indenture; (iii) the Company fails to
comply with other covenants and agreements in the Indenture, subject to
applicable grace periods as set forth in the Indenture;
153
9
(iv) certain accelerations (including failure to pay within any grace period
after final maturity) of other Indebtedness of the Company or any Restricted
Subsidiary that is a Significant Subsidiary occur if the amount accelerated (or
so unpaid) exceeds $20,000,000 or its foreign currency equivalent; (v) certain
events of bankruptcy, insolvency or reorganization with respect to the Company
and any Restricted Subsidiary which is a Significant Subsidiary; (vi) certain
judgments or decrees for the payment of money in excess of $20,000,000 or its
foreign currency equivalent against the Company or any Restricted Subsidiary
that is a Significant Subsidiary; and (vii) except as is permitted by the
Indenture, a Security Guarantee by Holding or a Guarantor that is a Significant
Subsidiary shall be held in any judicial proceeding to be unenforceable or
invalid or shall for any reason cease to be in full force and effect (other than
in accordance with its terms) or any Guarantor denies or disaffirms its
obligations under the Indenture or its Security Guarantee. If an Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the Securities may declare all the Securities to be due and
payable within five days after notice is given pursuant to the Indenture.
Certain events of bankruptcy or insolvency are Events of Default that will
result in the Securities being due and payable immediately.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of any continuing
Default (except a Default in payment of principal, premium, if any, or interest)
if and so long as a committee of its Trust Officers in good faith determines
that withholding notice is in the interest of the Holders.
15. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the Act, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may other wise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
154
10
16. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS
No director, officer, employee, incorporator, stockholder or
Affiliate of the Company, as such, will have any liability for any obligations
of the Company under the Securities, the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. No director,
officer, employee, incorporator, stockholder or Affiliate of any of the
Guarantors, as such, will have any liability for any obligations of the
Guarantors under the Security Guarantees, the Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of Securities and Security Guarantees by accepting a Security and a
Security Guarantee waives and releases all such liabilities. The waiver and
release are part of the consideration for issuance of the Securities and the
Security Guarantees.
17. GOVERNING LAW
THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
18. AUTHENTICATION
This Security shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent) manually signs the
certificate of authentication on the other side of this Security.
19. ABBREVIATIONS
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
155
11
20. CUSIP NUMBERS
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company has caused CUSIP numbers
to be printed on the Securities and have directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN
REQUEST AND WITHOUT CHARGE TO THE SECURITYHOLDER A COPY OF THE INDENTURE WHICH
HAS IN IT THE TEXT OF THIS SECURITY IN LARGER TYPE. REQUESTS MAY BE MADE TO:
XXXXXX HOLDING CO. (DE), INC.
0000 XXXXX XXXXXX XXXXXX, XXXXX 0000
XXXXXXXXXX, XXXXXXXX 00000
ATTENTION OF SECRETARY
156
12
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint _________________ agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
Date: Your Signature:
----------------- -----------------------------------------
Signature Guarantee:
-----------------------------------------------------------
(Signature must be guaranteed by a
participant in a recognized signature
guarantee medallion program)
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
157
13
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security
have been made:
Date of Amount of decrease Amount of increase Principal amount Signature of
Exchange in Principal in Principal of this Global authorized officer
Amount of this Amount of this Security following of Trustee or
Global Security Global Security such decrease or Securities
increase Custodian
158
14
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.06 or 4.08 of the Indenture, check the box:
[ ] 4.06 Asset Sale [ ] 4.08 Change of Control
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.06 or 4.08 of the Indenture,
state the amount: $ .
Date: Your Signature:
-------------- -------------------------------------------
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:
-----------------------------------------------------------
(Signature must be guaranteed by a
participant in a recognized signature
guarantee medallion program)
159
EXHIBIT C
[FORM OF FACE OF PRIVATE EXCHANGE SECURITY]
[GLOBAL SECURITIES LEGEND]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR 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. 3/
[RESTRICTED SECURITIES LEGEND]
THIS SECURITY HAS 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
FOR THE BENEFIT OF THE COMPANY THAT HIS SECURITY MAY NOT BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED PRIOR TO THE LATER OF (X) TWO YEARS AFTER THE LATER OF (I)
THE ISSUANCE HEREOF (OR A PREDECESSOR SECURITY HERETO) OR (II) THE DATE THIS
SECURITY WAS ACQUIRED FROM AN AFFILIATE OF THE COMPANY OR (Y) THREE MONTHS AFTER
THE LAST DATE THAT THIS SECURITY WAS OWNED BY ANY AFFILIATE OF THE COMPANY, IN
EITHER CASE OTHER THAN (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES
--------
3 This paragraph should only be added if the security is issued in global
form.
160
2
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A 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 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 RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING
THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A TRANSACTION INVOLVING A MINIMUM PRINCIPAL
AMOUNT OF $250,000 FOR SUCH SECURITIES 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
OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN THE CASE OF ANY OF THE
FOREGOING CLAUSES (A) THROUGH (F), A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE COMPANY AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE LATER OF (X) TWO YEARS AFTER THE LATER OF (I)
THE ISSUANCE HEREOF (OR A PREDECESSOR SECURITY HERETO) OR (II) THE DATE THIS
SECURITY WAS ACQUIRED FROM AN AFFILIATE OF THE COMPANY OR (Y) THREE MONTHS AFTER
THE LAST DATE THAT THIS SECURITY WAS OWNED BY ANY AFFILIATE OF THE COMPANY.
XXXXXX HOLDING CO. (DE), INC.
10% SENIOR SUBORDINATED NOTE DUE 2007
No. ___ CUSIP No.
$_______
XXXXXX HOLDING CO. (DE), INC., a Delaware corporation (the
"Company"), promises to pay to _______________, or registered assigns, the
principal sum of ___________ on November 15, 2007.
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
161
3
Additional provisions of this Security are set forth on the
other side of this Security.
Dated:
XXXXXX HOLDING CO. (DE), INC.,
by
------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
IBJ XXXXXXXX BANK & TRUST COMPANY
as Trustee, certifies that
this is one of the Securities [Seal]
referred to in the Indenture,
by
-----------------------------
Authorized Signatory
162
4
[FORM OF REVERSE SIDE OF PRIVATE EXCHANGE SECURITY]
10% Senior Subordinated Note due 2007
1. INTEREST
XXXXXX HOLDING CO. (DE), INC., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Security at
the rate per annum shown above and shall pay Liquidated Damages, if any, payable
pursuant to the relevant Registration Rights Agreement, (Capitalized terms used
herein and not defined herein have the meanings used in the Indenture).
The Company will pay interest and Liquidated Damages, if any,
semiannually on May 15 and November 15 of each year. Interest on the Securities
will accrue from the most recent date to which interest has been paid on the
Initial Security for which this Private Exchange Security was issued or, if no
interest has been paid, from [the Issue Date with respect to this Security].
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue principal at the rate borne by
the Securities, and it shall pay interest on overdue installments of interest at
the same rate to the extent lawful.
2. METHOD OF PAYMENT
The Company will pay interest (except defaulted interest) on
and Liquidated Damages, if any, in respect of the Securities to the Persons who
are registered holders of Securities at the close of business on the May 1 or
November 1 next preceding the interest payment date even if Securities are
canceled after the record date and on or before the interest payment date.
Holders must surrender Securities to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. However, the Company may pay principal and interest by check
payable in such money or by wire transfer of federal funds.
3. PAYING AGENT AND REGISTRAR
Initially, IBJ XXXXXXXX BANK & TRUST COMPANY (the "Trustee")
will act as Paying Agent and Registrar. The Company may appoint and change any
Paying Agent, Registrar
163
5
or co-registrar without notice to the Holders. The Company or any domestically
organized Wholly Owned Restricted Subsidiary may act as Paying Agent, Registrar
or co-registrar.
4. INDENTURE
The Company issued the Securities under an Indenture dated as
of November 24, 1997 (the "Indenture"), among the Company, the Guarantors and
the Trustee. 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 of
1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date of the Indenture
(the "Act"). Terms defined in the Indenture and not defined herein have the
meanings ascribed thereto in the Indenture. The Securities are subject to all
such terms, and Securityholders are referred to the Indenture and the Act for a
statement of those terms.
The Securities are unsecured senior subordinated obligations
of the Company and are limited to $270,000,000 in aggregate principal amount
outstanding, of which $135,000,000 in aggregate principal amount will be
initially issued on the Closing Date. Subject to the conditions set forth in the
Indenture, the Company may issue up to an additional $135,000,000 aggregate
principal amount of Securities. This Security is one of the Initial Securities
referred to in the Indenture. The Securities include the Initial Securities, the
Additional Securities and any Exchange Securities and Private Exchange
Securities issued in exchange for the Initial Securities pursuant to the
Indenture. The Initial Securities, the Additional Securities, the Exchange
Securities and the Private Exchange Securities are treated as a single class of
securities under the Indenture. The Indenture imposes certain limitations on the
Incurrence of Indebtedness by the Company and its Restricted Subsidiaries; the
payment of dividends and other payments by the Company and its Restricted
Subsidiaries; Investments; sales of assets of the Company and Restricted
Subsidiaries; certain transactions with Affiliates; the lines of business in
which Holding and the Company and its Restricted Subsidiaries may operate;
Liens; and consolidations, mergers and transfers of all or substantially all of
the Company's or a Guarantor's assets. In addition, the Indenture prohibits
certain restrictions on distributions from Restricted Subsidiaries.
164
6
5. OPTIONAL REDEMPTION
Except as set forth in the next two paragraphs, the Securities
may not be redeemed at the Company's option prior to November 15, 2002.
Thereafter, the Securities will be subject to redemption at any time at the
option of the Company, in whole or in part, at the redemption prices (expressed
as percentages of principal amount) set forth below plus accrued and unpaid
interest and Liquidated Damages thereon, if any, to the applicable redemption
date, (subject to the right of Holders on the relevant record date to receive
interest due on the relevant interest payment date), if redeemed during the
twelve-month period beginning on November 15 of the years indicated below:
Redemption
Period Price
------ ----------
2002 105.000%
2003 103.333%
2004 101.667%
2005 and thereafter 100.000%
In addition, at any time and from time to time, prior to
November 15, 2000, the Company may redeem up to 35% of the sum of (i) the
original aggregate principal amount of Securities (other than Additional
Securities) and (ii) the original aggregate principal amount of any Additional
Securities at a redemption price of 110% of the principal amount thereof, plus
the accrued and unpaid interest and Liquidated Damages thereon, if any, to the
redemption date, (subject to the right of Holders on the relevant record date to
receive interest due on the relevant interest payment date), with the net cash
proceeds of a public offering of common stock of the Company or Holding;
provided that at least 65% of the sum of (i) the original aggregate principal
amount of Securities (other than Additional Securities) and (ii) the original
aggregate principal amount of any Additional Securities remains outstanding
immediately after the occurrence of such redemption; and provided, further, that
such redemption shall occur within 60 days of the date of the closing of such
public offering.
At any time on or prior to November 15, 2002, the Securities
may be redeemed as a whole but not in part at the option of the Company upon the
occurrence of a Change of Control, at a redemption price equal to 100% of the
principal amount thereof plus the Applicable Premium as of, and accrued but
unpaid interest and Liquidated Damages, if
165
7
any, to, the redemption date, subject to the right of Holders on the relevant
record date to receive interest due on the relevant interest payment date. In no
event may any such redemption occur more than 90 days after the occurrence of
such Change of Control.
6. NOTICE OF REDEMPTION
Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at its registered address all in accordance
with the Indenture. If less than all of the Securities are to be redeemed at any
time, selection of Securities for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which the Securities are listed, or, if the Securities are not so
listed, on a pro rata basis, by lot or by such method as the Trustee shall deem
fair and appropriate; PROVIDED that no Securities of $1,000 or less shall be
redeemed in part. If money sufficient to pay the redemption price of and accrued
interest (if any) on all Securities (or portions thereof) to be redeemed on the
redemption date is deposited with the Paying Agent on or before the redemption
date and certain other conditions are satisfied, on and after such date interest
ceases to accrue on such Securities (or such portions thereof) called for
redemption.
7. REPURCHASE AT THE OPTION OF THE HOLDER
Upon a Change of Control, any Holder of Securities will have
the right, subject to certain conditions set forth in the Indenture, to cause
the Company to repurchase all or any part of the Securities of such Holder at a
purchase price equal to 101% of the principal amount of the Securities to be
repurchased plus accrued and unpaid interest and Liquidated Damages thereon, (if
any) to the date of repurchase (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date that is on or prior to the date of repurchase) as provided in, and subject
to the terms of, the Indenture.
166
8
8. SUBORDINATION
The Securities are subordinated to Senior Indebtedness of the
Company, as defined in the Indenture. To the extent provided in the Indenture,
Senior Indebtedness
of the Company must be paid before the Securities may be paid. The Company
agrees, and each Securityholder by accepting a Security agrees, to the
subordination provisions contained in the Indenture and authorizes the Trustee
to give it effect and appoints the Trustee as attorney-in-fact for such purpose.
9. DENOMINATIONS; TRANSFER; EXCHANGE
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay
any taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or to transfer or exchange any Securities for a
period of 15 days prior to a selection of Securities to be redeemed or 15 days
before an interest payment date.
10. PERSONS DEEMED OWNERS
The registered Holder of this Security may be treated as the
owner of it for all purposes.
11. UNCLAIMED MONEY
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
167
9
12. DISCHARGE AND DEFEASANCE
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
13. AMENDMENT, WAIVER
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount outstanding of the Securities
and (ii) any past default or noncompliance with any provision of the Indenture
(other than payment of principal, Liquidated Damages, if any, and interest) may
be waived with the consent of the Holders of a majority in principal amount then
outstanding of the Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities to cure any ambiguity, defect
or inconsistency, to provide for uncertificated Securities in addition to or in
place of certificated Securities (provided that the uncertificated Securities
are issued in registered form for purposes of Section 163(f) of the Code, or in
a manner such that the uncertificated Securities are described in Section
163(f)(2)(B) of the Code), to provide for the assumption of the Company's or any
Guarantor's obligations to Holders of Securities in the case of a merger,
consolidation or sale of assets, to release any Security Guarantee in accordance
with the provisions of the Indenture, to provide for additional Guarantors, to
make any change that would provide any additional rights or benefits to the
Holders of Securities or that does not adversely affect the legal rights under
this Indenture of any such Holder, to comply with requirements of the SEC in
order to effect or maintain the qualification of the Indenture under the TIA or
to provide for the issuance of Additional Securities in compliance with Article
II and Section 4.03 of the Indenture.
168
10
14. DEFAULTS AND REMEDIES
Under the Indenture, an Event of Default occurs if: (i) the
Company defaults in any payment of interest on, or Liquidated Damages with
respect to, any Security when the same becomes due and payable, whether or not
such payment shall be prohibited by Article X of the Indenture, and such default
continues for a period of 30 days; (ii) the Company defaults in the payment of
the principal of any Security when the same becomes due and payable at its
Stated Maturity, upon optional redemption, upon declaration or otherwise,
whether or not such payment shall be prohibited by Article X of the Indenture;
(iii) the Company fails to comply with other covenants and agreements in the
Indenture, subject to applicable grace periods as set forth in the Indenture;
(iv) certain accelerations (including failure to pay within any grace period
after final maturity) of other Indebtedness of the Company or any Restricted
Subsidiary that is a Significant Subsidiary occur if the amount accelerated (or
so unpaid) exceeds $20,000,000 or its foreign currency equivalent; (v) certain
events of bankruptcy, insolvency or reorganization with respect to the Company
and any Restricted Subsidiary which is a Significant Subsidiary; (vi) certain
judgments or decrees for the payment of money in excess of $20,000,000 or its
foreign currency equivalent against the Company or any Restricted Subsidiary
that is a Significant Subsidiary; and (vii) except as is permitted by the
Indenture, a Security Guarantee by Holding or a Guarantor that is a Significant
Subsidiary shall be held in any judicial proceeding to be unenforceable or
invalid or shall for any reason cease to be in full force and effect (other than
in accordance with its terms) or any Guarantor denies or disaffirms its
obligations under the Indenture or its Security Guarantee. If an Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the Securities may declare all the Securities to be due and
payable within five days after notice is given pursuant to the Indenture.
Certain events of bankruptcy or insolvency are Events of Default that will
result in the Securities being due and payable immediately.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of any continuing
Default
169
11
(except a Default in payment of principal, premium, if any, or interest)
if and so long as a committee of its Trust Officers in good faith determines
that withholding notice is in the interest of the Holders.
15. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the Act, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
16. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS
No director, officer, employee, incorporator, stockholder or
Affiliate of the Company, as such, will have any liability for any obligations
of the Company under the Securities, the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. No director,
officer, employee, incorporator, stockholder or Affiliate of any of the
Guarantors, as such, will have any liability for any obligations of the
Guarantors under the Security Guarantees, the Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of Securities and Security Guarantees by accepting a Security and a
Security Guarantee waives and releases all such liabilities. The waiver and
release are part of the consideration for issuance of the Securities and the
Security Guarantees.
17. GOVERNING LAW
THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
170
12
18. AUTHENTICATION
This Security shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent) manually signs the
certificate of authentication on the other side of this Security.
19. ABBREVIATIONS
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
20. CUSIP NUMBERS
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company has caused CUSIP numbers
to be printed on the Securities and have directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN
REQUEST AND WITHOUT CHARGE TO THE SECURITYHOLDER A COPY OF THE INDENTURE WHICH
HAS IN IT THE TEXT OF THIS SECURITY IN LARGER TYPE. REQUESTS MAY BE MADE TO:
XXXXXX HOLDING CO. (DE), INC.
0000 XXXXX XXXXXX XXXXXX, XXXXX 0000
XXXXXXXXXX, XXXXXXXX 00000
ATTENTION OF SECRETARY
171
13
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ____________________ agent to transfer this Security on
the books of the Company. The agent may substitute another to act for him.
Date: Your Signature:
----------------- -----------------------------------------
Signature Guarantee:
-----------------------------------------------------------
(Signature must be guaranteed by a
participant in a recognized signature
guarantee medallion program)
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
172
14
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF
TRANSFER RESTRICTED SECURITIES
Reference is hereby made to that certain Indenture dated November 24, 1997 (the
"Indenture") between Xxxxxx Holding Company (DE), Inc., as Issuer (the
"Company"), the Initial Guarantors (as defined therein) and IBJ Xxxxxxxx Bank &
Trust Company, as trustee (the "Trustee"). Capitalized terms used but not
defined herein shall have the meanings set forth in the Indenture.
This certificate relates to $_________ principal amount of Securities held in
(check applicable space) ____ book-entry or _____ definitive form by the
undersigned.
The undersigned (check one box below):
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depository a
Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated
above);
[ ] has requested the Trustee by written order to exchange
or register the transfer of a Security or Securities.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act, the undersigned confirms that such Securities
are being transferred in accordance with its terms:
CHECK ONE BOX BELOW:
(1) [ ] to the Company; or
(2) [ ] pursuant to an effective registration
statement under the Securities Act of
1933; or
(3) [ ] inside the United States to a "qualified
institutional buyer" (as defined in Rule
144A under the Securities Act of 1933) that
purchases for its own account or for the
account of a qualified institutional buyer
to whom notice is
173
15
given that such transfer is being made in
reliance on Rule 144A under the Securities
Act, in each case pursuant to and in
compliance with Rule 144A under the
Securities Act of 1933; or
(4) [ ] outside the United States in an offshore
transaction within the meaning of Regulation
S under the Securities Act in compliance
with Rule 904 under the Securities Act of
1933; or
(5) [ ] to an institutional "accredited
investor" (as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act
of 1933) that has furnished to the
Trustee a signed letter containing
certain representations and agreements
(the form of which letter is attached to
the Indenture as Exhibit D and which may
be obtained from the Trustee); or
(6) [ ] pursuant to another available exemption
from registration provided by Rule 144 under
the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Securities evidenced by this certificate
in the name of any person other than the registered holder
thereof; PROVIDED, HOWEVER, that if box (4), (5) or (6) is
checked, the Trustee may require, prior to registering any
such transfer of the Securities, such legal opinions,
certifications and other information as the Company has
reasonably requested to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not
subject to, the registration
174
16
requirements of the Securities Act of 1933, such as the
exemption provided by Rule 144 under such Act.
------------------------
Signature
Signature Guarantee:
----------------------------------------------------------
(Signature must be guaranteed by a
participant in a recognized signature
guarantee medallion program)
175
17
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933 ("Rule 144A"), and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is aware
that the transferor is relying upon the undersigned's foregoing representations
in order to claim the exemption from registration provided by Rule 144A.
Dated:
------------------------- ----------------------------------------
NOTICE: To be executed by
an executive officer
176
18
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security
have been made:
Date of Amount of decrease Amount of increase Principal amount Signature of
Exchange in Principal in Principal of this Global authorized officer
Amount of this Amount of this Security following of Trustee or
Global Security Global Security such decrease or Securities
increase Custodian
177
19
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.06 or 4.08 of the Indenture, check the box:
[ ] 4.06 Asset Sale [ ] 4.08 Change of Control
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.06 or 4.08 of the Indenture,
state the amount: $____________.
Date: Your Signature:
------------------ --------------------------------------
(Sign exactly as your name appears
on the other side of the Security)
------------------
Tax I.D. number
Signature Guarantee:
-----------------------------------------------------
(Signature must be guaranteed by a
participant in a recognized signature
guarantee medallion program)
178
EXHIBIT D
[Form of Transferee Letter of Representation]
Xxxxxx Holding Co. (DE), Inc.
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Ladies and Gentlemen:
This certificate is delivered to request a transfer of $
__________ principal amount of the 10% Senior Subordinated Notes due 2007 (the
"Securities") of Xxxxxx Holding Co. (DE), Inc. (the "Company").
Upon transfer, the Securities would be registered in the name
of the new beneficial owner as follows:
Name:
-------------------------------------
Address:
---------------------------------
Taxpayer ID Number:
-----------------------
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended
(the "Securities Act")) purchasing for our own account or for the account of
such an institutional "accredited investor" at least $250,000 principal amount
of the Securities, and we are acquiring the Securities not with a view to, or
for offer or sale in connection with, any distribution in violation of the
Securities Act. We have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risk of our investment in
the Securities and invest in or purchase securities similar to the Securities in
the normal course of our business. We and any accounts for which we are acting
are each able to bear the economic risk of our or its investment.
2. We understand that the Securities have not been registered
under the Securities Act and, unless so registered, 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 Securities to offer, sell or
otherwise transfer such Securities prior to the later of the date which is two
years after (X) the later of (A) the date of original issue or (B)
179
2
the date on which this Security was acquired from an affiliate of the Company or
(Y) the date that is three months after the last date on which the Company or
any affiliate of the Company was the owner of such Securities (or any
predecessor thereto) only (a) to the Company, (b) pursuant to a registration
statement which has been declared effective under the Securities Act, (c) in a
transaction complying with the requirements of 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 and to whom notice is given that the transfer is being made in reliance on
Rule 144A, (d) pursuant to offers and sales that occur outside the United States
within the meaning of Regulation S under the Securities Act or (e) to an
institutional "accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act that is purchasing for its own account or
for the account of such an institutional "accredited investor", in each case in
a transaction involving a minimum principal amount of Securities of $250,000 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 the property of such investor
account or accounts be at all times within our or their control and in
compliance with any applicable state securities laws. If any resale or other
transfer of the Securities is proposed to be made pursuant to clause (e) above
prior to the later of the date which is two years after (X) the later of (A) the
date of original issue or (B) the date on which this Security was acquired from
an affiliate of the Company or (Y) the date that is three months after the last
date on which the Company or any affiliate of the Company was the owner of such
Securities (or any predecessor thereto), the transferor shall deliver a letter
from the transferee substantially in the form of this letter to the Company and
the Trustee, which shall provide, among other things, that the transferee is an
institutional "accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act and that it is acquiring such Securities for
investment purposes and not for distribution in violation of the Securities Act.
Each purchaser acknowledges that the Company and the Trustee reserve the right
prior to any offer, sale or other transfer prior to the later of the date which
is two years after (X) the later of (A) the date of original issue or (B) the
date on which this Security was acquired from an affiliate of the Company or (Y)
the date that is three months after the last date on which the Company or any
affiliate of the Company was the
180
3
owner of such Securities (or any predecessor thereto) of the Securities pursuant
to clause (d), (e) or (f) above to require the delivery of an opinion of
counsel, certifications and/or other information satisfactory to the Company and
the Trustee.
TRANSFEREE:
------------------------------
BY
--------------------------------------
181
EXHIBIT E
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental
Indenture"), dated as of [ ], among [NEW GUARANTOR]
(the "New Subsidiary Guarantor"), a subsidiary of
Xxxxxx Holding Co. (DE), Inc. (or its successor), a
Delaware corporation (the "Company"), THE COMPANY,
the existing guarantors (the "Existing Guarantors")
under the indenture referred to below, and IBJ
XXXXXXXX BANK & TRUST COMPANY, a New York banking
corporation, as trustee under the indenture referred
to below (the "Trustee").
W I T N E S S E T H
WHEREAS the Company and the Existing Guarantors have
heretofore executed and delivered to the Trustee an indenture (the "Indenture"),
dated as of November 24, 1997, providing for the issuance of an aggregate
principal amount of up to $270,000,000 of 10% Senior Subordinated Notes due 2007
(the "Securities");
WHEREAS Section 4.12 of the Indenture provides that the
Company is required to cause the New Guarantor to execute and deliver to the
Trustee a supplemental indenture pursuant to which the New Subsidiary Guarantor
shall unconditionally guarantee all of the Company's obligations under the
securities pursuant to a Security Guarantee on the terms and conditions set
forth herein; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the
Trustee, the Company and the Existing Guarantors are authorized to execute and
deliver this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the New Guarantor, the Company and the Existing Guarantors and the Trustee
mutually covenant and agree for the equal and ratable benefit of the holders of
the Securities as follows:
1. DEFINITIONS. (a) Capitalized terms used
herein without definition shall have the meanings assigned
to them in the Indenture.
182
2
(b) For all purposes of this Supplemental Indenture, except as
otherwise herein expressly provided or unless the context otherwise requires:
(i) the terms and expressions used herein shall have the same meanings as
corresponding terms and expressions used in the Indenture; and (ii) the words
"herein," "hereof" and "hereby" and other words of similar import used in this
Supplemental Indenture refer to this Supplemental Indenture as a whole and not
to any particular section hereof.
2. AGREEMENT TO GUARANTEE. The New Guarantor hereby agrees,
jointly and severally with all other Guarantors, to guarantee the Company's
obligations under the Securities on the terms and subject to the conditions set
forth in Article XI and Article XII of the Indenture and to be bound by all
other applicable provisions of the Indenture. Except as expressly amended
hereby, the Indenture is in all respects ratified and confirmed and all the
terms, conditions and provisions thereof shall remain in full force and effect.
This Supplemental Indenture shall form a part of the Indenture for all purposes,
and every holder of Securities heretofore or hereafter authenticated and
delivered shall be bound hereby.
3. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
4. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to
the validity or sufficiency of this Supplemental Indenture.
5. COUNTERPARTS. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
183
3
6. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
[NEW SUBSIDIARY GUARANTOR],
by
--------------------------------
Name:
Title:
XXXXXX HOLDING CO. (DE) INC.,
by
--------------------------------
Name:
Title:
[Existing Guarantors],
by
--------------------------------
Name:
Title:
[ ], as
Trustee,
by
--------------------------------
Name:
Title:
184
EXHIBIT F
[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS PURSUANT TO RULE 144A]
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Re: Xxxxxx Holding Co. (DE), Inc. (the "Company")
10% Senior Subordinated Notes due 2007 (the
"Securities").
Ladies and Gentlemen:
In connection with our proposed sale of $_______ aggregate
principal amount at maturity of the Securities, we hereby certify that such
transfer is being effected pursuant to and in accordance with Rule 144A ("Rule
144A") under the United States Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, we hereby further certify that the
Securities are being transferred to a person that we reasonably believe is
purchasing the Securities for its own account, or for one or more accounts with
respect to which such person exercises sole investment discretion, and such
person and each such account is a "qualified institutional buyer" within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and
such Securities are being transferred in compliance with any applicable blue sky
securities laws of any state of the United States.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter
185
2
or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.
Very truly yours,
------------------------------
[Name of Transferor]
By:
---------------------------
Authorized Signature
186
EXHIBIT G
[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S]
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Re: Xxxxxx Holding Co. (DE), Inc. (the "Company")
10% Senior Subordinated Notes due 2007 (the
"Securities").
Ladies and Gentlemen:
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 United States
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 order was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we
nor any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period
and the provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are
applicable thereto, we
187
2
confirm that such sale has been made in accordance with the applicable
provisions of Rule 903(c)(3) or Rule 904(c)(1), as the case may be.
The Company and you are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
-------------------------------
[Name of Transferor]
by
----------------------------
Authorized Signatory
