Exhibit 4.1
EXECUTION COPY
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DIAMOND TRIUMPH AUTO GLASS, INC.,
as Issuer,
AND
STATE STREET BANK AND TRUST COMPANY,
as Trustee
INDENTURE
Dated as of March 31, 1998
9-1/4% Senior Notes Due 2008
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INDENTURE dated as of March 31, 1998 between DIAMOND TRIUMPH
AUTO GLASS, INC., a Delaware corporation (the "Company"), as Issuer and STATE
STREET BANK AND TRUST COMPANY, as Trustee (the "Trustee").
The Company has duly authorized the creation of an issue of
9-1/4% Senior Notes Due 2008 (the "Initial Notes") and an issue of 9-1/4% Senior
Notes Due 2008, to be issued in exchange for the Initial Notes (the "Exchange
Notes") pursuant to the Registration Rights Agreement and, to provide therefor,
the Company has duly authorized the execution and delivery of this Indenture.
All things necessary to make the Notes (as defined below), when duly issued and
executed by the Company and authenticated and delivered hereunder, the valid and
binding obligations of the Company and to make this Indenture a valid and
binding agreement of the Company have been done.
Each party hereto agrees as follows for the benefit of each
other party and for the equal and ratable benefit of the Holders of the Notes:
ARTICLE One
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Accredited Investor" means Indebtedness of a Person or any of
its Subsidiaries existing at the time such Person become a Restricted Subsidiary
of the Company or at the time it merges or consolidates wit the Company or any
of its Restricted Subsidiaries or is assumed in connection with the acquisition
of assets from such Person and in each case not incurred in connection with, or
in anticipation or contemplation of, such acquisition, merger or consolidation.
Such Indebtedness shall be deemed to have been incurred at the time such Person
becomes a Restricted Subsidiary of the Company or at the time it mergers or
consolidates with the Company or a Restricted Subsidiary of the Company or at
the time such Indebtedness is assumed in connection with the acquisition of
assets from such Person.
"Additional Interest" has the meaning set forth in the
Registration Rights Agreement.
"Affiliate" means, with respect to any specified Person, any
other Person who directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such specified
person. The term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative of the foregoing.
"Affiliate Transaction" has the meaning set forth in Section
4.10.
"Agent" means any Registrar, Paying Agent or Co-Registrar.
"Asset Acquisition" means (a) an Investment by the Company or
any Restricted Subsidiary of the Company in any other Person pursuant to which
such Person shall become a Restricted Subsidiary of the Company, or shall be
merged with or into the Company or any Restricted Subsidiary of the Company, or
(b) the acquisition by the Company or any Restricted Subsidiary of the Company
of the assets of any Person (other than a Subsidiary of the Company) which
constitute all or substantially all of the assets of such Person or comprises
any division or line of business of such Person or any other properties or
assets of such Person other than in the ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in the
ordinary course of business), assignment or other transfer for value by the
Company or any of its Restricted Subsidiaries (including any Sale and Leaseback
Transaction) to any Person other than the Company or a Restricted Subsidiary of
the Company (including a Person that is or will become a Restricted Subsidiary
of the Company immediately after such sale, issuance, conveyance, transfer,
lease, assignment or other transfer for value) of (a) any Capital Stock of any
Restricted Subsidiary of the Company; or (b) any other property or assets (other
than cash or Cash Equivalents) of the Company or any Restricted Subsidiary of
the Company other than in the ordinary course of business; provided, however,
that Asset Sales shall not include (i) a transaction or series of related
transactions for which the Company or its Restricted Subsidiaries receive
aggregate consideration of less than $500,000 and (ii) the sale, lease,
conveyance, disposition or other transfer of all or substantially all of the
assets of the Company as permitted under Article Five.
"Authentication Order" has the meaning set forth in Section
2.03.
"Bank Facility" means the credit agreement dated as of March
31, 1998 among the Company, the lenders named therein and Bankers Trust Company,
as Administrative Agent, and all amendments thereto, together with the related
documents thereto (including, without limitation, any guarantee agreements and
security documents), in each case as such agreements may be amended (including
any amendment and restatement thereof), supplemented or otherwise modified from
time to time by one or more credit agreements, including any agreement adding
Subsidiaries of the Company as additional borrowers or guarantors thereunder or
extending the `maturity of, refinancing, replacing or otherwise restructuring
all or any portion of the Indebtedness under such agreement(s) or any successor
or replacement agreement(s) and whether by the same or any other agent, lender
or group of lenders.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal, state or foreign law for the relief of debtors.
"Board of Directors" means, as to any Person, the board of
directors of such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy
of a resolution certified by the Secretary or an Assistant Secretary of such
Person to have been duly adopted by the Board of Directors of such Person and to
be in full force and effect on the date of such certification, and delivered to
the Trustee.
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"Business Day" means any day other than a Saturday, Sunday or
any other day on which banking institutions in the City of New York or the city
in which the principal corporate trust office of the Trustee is located are
required or authorized by law or other governmental action to be closed.
"Capitalized Lease Obligations" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person and (ii) with
respect to any Person that is not a corporation, any and all partnership or
other equity or ownership interests of such Person.
"Cash Equivalents" means (i) marketable direct obligations
issued by, or unconditionally guaranteed by, the United States Government or
issued by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition thereof; (ii) marketable direct obligations issued by any state of
the United States of America or any political subdivision of any such state or
any public instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either S&P or Xxxxx'x; (iii) commercial paper
maturing no more than one year from the date of creation thereof and, at the
time of acquisition, having a rating of at least A-1 from S&P or at least P-1
from Xxxxx'x; (iv) certificates of deposit or bankers' acceptances maturing
within one year from the date of acquisition thereof issued by any bank
organized under the laws of the United States of America or any state thereof or
the District of Columbia or any U.S. branch of a foreign bank having at the date
of acquisition thereof combined capital and surplus of not less than $250.0
million; (v) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (i) above entered into
with any bank meeting the qualifications specified in clause (iv) above; and
(vi) investments in money market funds which invest substantially all their
assets in securities of the types described in clauses (i) through (v) above.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Company if, immediately after giving effect to such
transaction(s), any Person or group of related Persons (other than Permitted
Holders) for purposes of Section 13(d) of the Exchange Act (a "Group"), is or
becomes the beneficial owner, directly or indirectly, of shares representing
more than 50% of the aggregate ordinary voting power represented by the issued
and outstanding Capital Stock of the transferee or surviving entity; (ii) any
Person or Group (other than Permitted Holders) shall become the beneficial
owner, directly or indirectly, of shares representing more than 50% of the
aggregate ordinary voting power represented by the issued and outstanding
Capital Stock of the Company; (iii) the replacement after the Issue Date of a
majority of the Board of Directors of the Company
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over a two-year period after the Issue Date from the directors who constituted
the Board of Directors of the Company at the beginning of such period, and such
replacement shall not have been approved by a vote of at least a majority of the
Board of Directors of the Company then still in office who either were members
of such Board of Directors at the beginning of such period or whose election as
a member of such Board of Directors was previously so approved; or (iv) the
Company consolidates with, or merges with or into, another Person, or sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any Person, or any Person consolidates with,
or merges with or into, the Company, in any such event pursuant to a transaction
in which the shares representing the aggregate ordinary voting power represented
by the issued and outstanding Capital Stock of the Company is converted into or
exchanged for cash, securities or other property, other than (A) any such
transaction where (1) the shares representing the issued and outstanding
ordinary voting Capital Stock of the Company are converted into or exchanged for
(I) ordinary voting Capital Stock (other than Disqualified Capital Stock) of the
surviving or transferee corporation and/or (II) cash, securities and other
property in an amount which could be paid by the Company as a Restricted Payment
under this Indenture and (2) the "beneficial owners" of the shares representing
the issued and outstanding ordinary voting Capital Stock of the Company
immediately prior to such transaction own, directly or indirectly, shares of
Capital Stock representing not less than a majority of voting power of all
issued and outstanding shares of Capital Stock of the surviving or transferee
corporation immediately after such transaction or (B) any such transaction as a
result of which the Permitted Holders own shares of Capital Stock representing
more than 50% of the voting power of all issued and outstanding shares of
Capital Stock of the surviving or transferee corporation immediately after such
transaction.
"Change of Control Offer" has the meaning set forth in Section
4.14.
"Change of Control Payment Date" has the meaning set forth in
Section 4.14.
"Commission" means the Securities and Exchange Commission, or
any successor agency thereto with respect to the regulation or registration of
securities.
"Common Stock" of any Person means any and all shares,
interests or other participations in, and other equivalents (however designated
and whether voting or non-voting) of such Person's common stock, whether
outstanding on the Issue Date or issued after the Issue Date, and includes,
without limitation, all series and classes of such common stock.
"Company" means the party named as such in the recitals hereto
until a successor replaces it pursuant to this Indenture.
"Consolidated EBITDA" means, for any period, the sum (without
duplication) of (i) Consolidated Net Income and (ii) to the extent Consolidated
Net Income has been reduced thereby, (A) all income taxes of the Company and its
Restricted Subsidiaries paid or accrued in accordance with GAAP for such period,
(B) Consolidated Interest Expense, (C) Consolidated Non-cash Charges less any
non-cash items increasing Consolidated Net Income for such period, (D) executive
compensation expense not to exceed $5.0 million incurred in the fiscal year
ended December 31, 1997 and (E) write-offs in the fiscal year ending December
31, 1998 of amounts, not to exceed $3.0 million, due from a company owned by
Xxxxxxx Xxxxxx and Xxxxxxx Xxxxx,
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all as determined on a consolidated basis for the Company and its Restricted
Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means the ratio of
Consolidated EBITDA during the four full fiscal quarters (the "Four Quarter
Period") ending on or prior to the date of the transaction giving rise to the
need to calculate the Consolidated Fixed Charge Coverage Ratio (the "Transaction
Date") to Consolidated Fixed Charges for the Four Quarter Period. In addition to
and without limitation of the foregoing, for purposes of this definition,
"Consolidated EBITDA" and "Consolidated Fixed Charges" shall be calculated after
giving effect on a pro forma basis for the period of such calculation to (i) the
incurrence or repayment of any Indebtedness of the Company or any of its
Restricted Subsidiaries (and the application of the proceeds thereof) giving
rise to the need to make such calculation and any incurrence or repayment of
other Indebtedness (and the application of the proceeds thereof), other than the
incurrence or repayment of Indebtedness in the ordinary course of business for
working capital purposes pursuant to working capital facilities, occurring
during the Four Quarter Period or at any time subsequent to the last day of the
Four Quarter Period and on or prior to the Transaction Date, as if such
incurrence or repayment, as the case may be (and the application of the proceeds
thereof), occurred on the first day of the Four Quarter Period and (ii) any
Asset Sales or Asset Acquisitions (including, without limitation, any Asset
Acquisition giving rise to the need to make such calculation as a result of the
Company or one of its Restricted Subsidiaries (including any Person who becomes
a Restricted Subsidiary as a result of the Asset Acquisition) incurring,
assuming or otherwise being liable for Acquired Indebtedness and including,
without limitation, by giving pro forma effect to any Consolidated EBITDA
(provided that such pro forma Consolidated EBITDA shall be calculated in a
manner consistent with the exclusions in the definition of "Consolidated Net
Income") attributable to the assets which are the subject of the Asset
Acquisition or Asset Sale during the Four Quarter Period) occurring during the
Four Quarter Period or at any time subsequent to the last day of the Four
Quarter Period and on or prior to the Transaction Date, as if such Asset Sale or
Asset Acquisition (including the incurrence, assumption or liability for any
such Acquired Indebtedness) occurred on the first day of the Four Quarter
Period. If the Company or any of its Restricted Subsidiaries directly or
indirectly guarantees Indebtedness of a third Person, the preceding sentence
shall give effect to the incurrence of such guaranteed Indebtedness as if the
Company or any of its Restricted Subsidiaries had directly incurred or otherwise
assumed such guaranteed Indebtedness. Furthermore, in calculating "Consolidated
Fixed Charges" for purposes of determining the denominator (but not the
numerator) of this "Consolidated Fixed Charge Coverage Ratio," (1) interest on
outstanding Indebtedness determined on a fluctuating basis as of the Transaction
Date and which will continue to be so determined thereafter shall be deemed to
have accrued at a fixed rate per annum equal to the rate of interest on such
Indebtedness in effect on the Transaction Date; (2) if interest on any
Indebtedness actually incurred on the Transaction Date may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rates, then the interest rate in
effect on the Transaction Date will be deemed to have been in effect during the
Four Quarter Period; and (3) notwithstanding clause (1) above, interest on
Indebtedness determined on a fluctuating basis, to the extent such interest is
covered by agreements relating to Interest Swap Obligations, shall be deemed to
accrue at the rate per annum resulting after giving effect to the operation of
such agreements.
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"Consolidated Fixed Charges" means, for any period, the sum,
without duplication, of (i) Consolidated Interest Expense (excluding any
amortization or write off of deferred financing costs), plus (ii) the product of
(x) the amount of all dividend payments on any series of Preferred Stock of the
Company (other than dividends paid in Qualified Capital Stock) paid, accrued or
scheduled to be paid or accrued during such period times (y) a fraction, the
numerator of which is one and the denominator of which is one minus the then
current effective consolidated federal, state and local tax rate of the Company,
expressed as a decimal.
"Consolidated Interest Expense" means, for any period, the sum
of, without duplication: (i) the aggregate of the interest expense of the
Company and its Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, including, without limitation, (a)
any amortization of debt discount and any amortization or write off of deferred
financing costs, (b) the net costs under Interest Swap Obligations, (c) all
capitalized interest and (d) the interest portion of any deferred payment
obligation; and (ii) the interest component of Capitalized Lease Obligations
paid, accrued and/or scheduled to be paid or accrued by the Company and its
Restricted Subsidiaries during such period as determined on a consolidated basis
in accordance with GAAP.
"Consolidated Net Income" means, for any period, the aggregate
net income (or loss) of the Company and its Restricted Subsidiaries for such
period on a consolidated basis, determined in accordance with GAAP; provided
that there shall be excluded therefrom (a) net after-tax gains from Asset Sales
or abandonments or reserves relating thereto, (b) net after-tax items classified
as extraordinary or nonrecurring gains or losses, (c) the net income of any
Person acquired in a "pooling of interests" transaction accrued prior to the
date it becomes a Restricted Subsidiary of the Company or is merged or
consolidated with the Company or any Restricted Subsidiary of the Company, (d)
the net income (but not loss) of any Restricted Subsidiary of the Company to the
extent that the declaration of dividends or similar distributions by that
Subsidiary of that income is restricted by contract, operation of law or
otherwise, (e) the net income of any Person, other than a Restricted Subsidiary
of the Company, except to the extent of cash dividends or distributions paid to
the Company or to a Restricted Subsidiary of the Company by such Person, (f) any
restoration to income of any contingency reserve, except to the extent that
provision for such reserve was made out of Consolidated Net Income accrued at
any time following the Issue Date and (g) income or loss attributable to
discontinued operations (including, without limitation, operations disposed of
during such period whether or not such operations were classified as
discontinued).
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with GAAP, less (without duplication) amounts attributable to
Disqualified Capital Stock of such Person.
"Consolidated Non-cash Charges" means, for any period, the
aggregate depreciation, amortization and other non-cash expenses of the Company
and its Restricted Subsidiaries reducing Consolidated Net Income of the Company
and its Restricted Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP (excluding any such charges constituting an
extraordinary item or loss or any such charge which requires an accrual of or a
reserve for cash charges for any future period).
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"Corporate Trust Office" means the principal office of the
Trustee where it conducts its corporate trust administrative functions, which
office is currently located at Xxxxxxx Square, 000 Xxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxx, XX 00000.
"Covenant Defeasance" has the meaning set forth in Section
8.01.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means an event or condition the occurrence of which
is, or with the lapse of time or the giving of notice or both would be, an Event
of Default.
"Defaulted Interest" has the meaning set forth in Section
2.13.
"Depository" means, with respect to the Notes issued in the
form of one or more Global Notes, The Depository Trust Company or another Person
designated as Depository by the Company, which must be a clearing agency
registered under the Exchange Act.
"Disqualified Capital Stock" means that portion of any Capital
Stock which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the sole option of the holder thereof, in any case, on or prior to the final
maturity date of the Notes. Notwithstanding the foregoing, in no event shall the
Senior Preferred Stock be deemed to be Disqualified Capital Stock.
"Employment Agreements" means the employment agreements, dated
as of the Issue Date, between the Company and each of Xxxxxxx Xxxxxx, Xxxxxxx
Xxxxx, Xxxxxx Xxxxxx and Xxxxxxx Xxxxxx, as any such agreement may be extended
or amended from time to time to the extent that any such extension or amendment
does not have the effect of increasing in any material respect the payments
permitted to be made under such agreements pursuant to clause (i) of Section
4.12(b).
"Event of Default" has the meaning set forth in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"Exchange Notes" has the meaning assigned in the recital
hereto.
"Exchange Offer Registration Statement" has the meaning set
forth in the Registration Rights Agreement.
"fair market value" means, with respect to any asset or
property, the price which could be negotiated in an arm's-length free market
transaction, for cash, between a willing seller and a willing and able buyer,
neither of whom is under undue pressure or compulsion to complete the
transaction. Fair market value shall be determined by the Board of Directors of
the
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Company acting reasonably and in good faith and shall be evidenced by a Board
Resolution of the Board of Directors of the Company delivered to the Trustee.
"Final Maturity Date" means April 1, 2008.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, which are in effect as of the
Issue Date.
"GEI" means Green Equity Investors II, L.P.
"Global Note" means a note evidencing all or a portion of the
Notes issued to the Depository or its nominee in accordance with Section 2.01
and bearing the legend set forth in Section 2.02(b).
"Guarantees" means the future guarantees of the Notes and the
Obligations of the Company under the Indenture provided by any Subsidiary
Guarantors pursuant to Section 4.17 and Article Ten.
"incur" has the meaning set forth in Section 4.04.
"Indebtedness" means with respect to any Person, without
duplication, (i) the principal amount (or, if less, the accreted value) of all
obligations of such Person for borrowed money, (ii) the principal amount (or, if
less, the accreted value) of all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all Capitalized Lease
Obligations of such Person, (iv) all obligations of such Person issued or
assumed as the deferred purchase price of property, all conditional sale
obligations and all obligations under any title retention agreement (but
excluding trade accounts payable and other accrued liabilities arising in the
ordinary course of business that are not overdue by 90 days or more or are being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted), (v) all obligations of such Person for the reimbursement
of any obligor on any letter of credit, banker's acceptance or similar credit
transaction, (vi) guarantees and other contingent obligations of such Person in
respect of Indebtedness referred to in clauses (i) through (v) above and clause
(viii) below, (vii) all Indebtedness of any other Person of the type referred to
in clauses (i) through (vi) which are secured by any lien on any property or
asset of such Person, the amount of such Indebtedness being deemed to be the
lesser of the fair market value of such property or asset or the amount of the
Indebtedness so secured, (viii) all obligations under currency agreements and
interest swap agreements of such Person and (ix) all Disqualified Capital Stock
issued by such Person with the amount of Indebtedness represented by such
Disqualified Capital Stock being equal to the greater of its voluntary or
involuntary liquidation preference and its maximum fixed repurchase price, but
excluding accrued dividends, if any. For purposes hereof, the "maximum fixed
repurchase price" of any Disqualified Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Disqualified Capital Stock as if such Disqualified Capital Stock were purchased
on any date on which Indebtedness shall be
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required to be determined pursuant to this Indenture, and if such price is based
upon, or measured by, the fair market value of such Disqualified Capital Stock,
such fair market value shall be determined reasonably and in good faith by the
Board of Directors of the issuer of such Disqualified Capital Stock.
"Indenture" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof.
"Independent Financial Advisor" means an accounting firm,
appraisal firm, investment banking firm or consultant to Persons engaged in a
Related Business, in each case, of nationally recognized standing that is, in
the judgment of the Company's Board of Directors, qualified to perform the task
for which it has been engaged.
"Initial Notes" has the meaning set forth in the recitals
hereto.
"Initial Purchasers" means First Union Capital Markets, a
division of Wheat First Securities, Inc., BT Alex. Xxxxx Incorporated and
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation.
"Interest Payment Date" means the stated due date of an
installment of interest on the Notes.
"Interest Swap Obligations" means the obligations of any
Person pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"Investment" means, with respect to any Person, any direct or
indirect loan or other extension of credit (including, without limitation, a
guarantee) or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase or acquisition by such Person of any Capital
Stock, bonds, notes, debentures or other securities or evidences of Indebtedness
issued by, any Person. "Investment" shall exclude accounts receivable or
deposits arising in the ordinary course of business. For purposes of Section
4.03, "Investment" shall include and be valued at the fair market value of the
net assets of any Restricted Subsidiary of the Company at the time that such
Restricted Subsidiary is designated an Unrestricted Subsidiary. If the Company
or any Restricted Subsidiary of the Company sells or otherwise disposes of any
Common Stock of any direct or indirect Restricted Subsidiary of the Company such
that, after giving effect to any such sale or disposition, such Restricted
Subsidiary would cease to be 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 Common Stock of such Restricted Subsidiary
not sold or disposed of.
"Issue Date" means the date of original issuance of the
Initial Notes.
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"Legal Defeasance" has the meaning set forth in Section 8.01.
"Lien" means any lien, mortgage, deed of trust, pledge,
security interest, charge or encumbrance of any kind (including any conditional
sale or other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"Management Services Agreement" means the Management Services
Agreement, dated as of the Issue Date, between the Company and Xxxxxxx Xxxxx &
Partners, L.P., substantially as in effect on the Issue Date.
"Management Subscription and Stockholders Agreements" mean
each of the Management Subscription and Stockholders Agreements, dated as of the
Issue Date, among the Company, Green Equity Investors II, L.P. and an employee
or director of the Company and/or one or more of its Subsidiaries, as any such
agreement may be amended from time to time.
"Moody's" means Xxxxx'x Investors Service, Inc. and its
successors.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents (other than the portion of any such deferred payment constituting
interest) received by the Company or any of its Restricted Subsidiaries from
such Asset Sale net of (a) reasonable out-of-pocket expenses and fees relating
to such Asset Sale (including, without limitation, legal, accounting and
investment banking fees and sales commissions), (b) taxes paid or payable after
taking into account any reduction in consolidated tax liability due to available
tax credits or deductions and any tax sharing arrangements, (c) repayment of
Indebtedness that is required to be repaid in connection with such Asset Sale,
(d) appropriate amounts to be provided by the Company or any Restricted
Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against
any liabilities associated with such Asset Sale and retained by the Company or
any Restricted Subsidiary, as the case may be, after such Asset Sale, including,
without limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale, and (e) that
portion of the cash or Cash Equivalents attributable to the Capital Stock of a
Restricted Subsidiary which is not a Wholly Owned Restricted Subsidiary of the
Company held, directly or indirectly, by any Person which is not the Company or
a Wholly Owned Restricted Subsidiary of the Company.
"Net Proceeds Offer" has the meaning set forth in Section
4.15.
"Net Proceeds Offer Amount" has the meaning set forth in
Section 4.15.
"Net Proceeds Offer Payment Date" has the meaning set forth in
Section 4.15.
"Net Proceeds Offer Trigger Date" has the meaning set forth in
Section 4.15.
"Notes" means the Initial Notes, the Exchange Notes and any
notes issued pursuant to Section 2.03, treated as a single class of notes, as
amended or supplemented from time to time in accordance with the terms of this
Indenture.
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"Noteholder" or "Holder" means the Person in whose name a Note
is registered on the Registrar's books.
"Obligations" has the meaning set forth in Section 10.01.
"Offering Memorandum" means the Confidential Offering
Memorandum of the Company dated March 26, 1998.
"Officer" means, with respect to any Person, the Chairman of
the Board, any Co-Chairman of the Board, the Vice Chairman of the board, the
Chief Executive Officer, any Co-Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer, the Controller, the Treasurer or the
Secretary of such Person.
"Officers' Certificate" means a certificate signed by two
Officers of the Company.
"Offshore Global Notes" has the meaning set forth in Section
2.01.
"Offshore Physical Notes" has the meaning set forth in Section
2.01.
"Offshore Notes Exchange Date" has the meaning set forth in
Section 2.01.
"Opinion of Counsel" means a written opinion from legal
counsel which opinion is reasonably acceptable to the Trustee and which counsel
may be counsel to or an employee of the Company or counsel to the Trustee.
"Participants" has the meaning set forth in Section 2.16.
"Permanent Offshore Global Note" has the meaning set forth in
Section 2.01.
"Paving Agent" has the meaning set forth in Section 2.04.
"Permitted Holders" means Green Equity Investors II, L.P., its
Affiliates and Related Parties and senior management of the Company on the Issue
Date.
"Permitted Indebtedness" means, without duplication, each of
the following:
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(i) Indebtedness in an aggregate principal amount not to
exceed $100.0 million under the Notes, the Guarantees and this
Indenture and any replacement Notes therefor issued pursuant to
Section 2.08;
(ii) Indebtedness of the Company and the Subsidiary Guarantors
incurred under the Bank Facility in an aggregate principal amount at
any time outstanding not to exceed $35.0 million less the amount of
any permanent prepayments of Indebtedness made with the Net Cash
Proceeds of an Asset Sale pursuant to clause (iii) (A) of the first
sentence of Section 4.15.
(iii) other Indebtedness of the Company and the Subsidiary
Guarantors outstanding on the Issue Date;
(iv) Interest Swap Obligations of the Company covering
Indebtedness of the Company or any of its Restricted .Subsidiaries
and Interest Swap Obligations of any Restricted Subsidiary of the
Company covering Indebtedness of such Restricted Subsidiary;
provided, however, that such Interest Swap Obligations are entered
into to protect the Company and its Restricted Subsidiaries from
fluctuations in interest rates on Indebtedness incurred in accordance
with this Indenture to the extent the notional principal amount of
such Interest Swap Obligation does not exceed the principal amount of
the Indebtedness to which such Interest Swap Obligation relates;
(v) Indebtedness of a Restricted Subsidiary of the Company to
the Company or to a Wholly Owned Restricted Subsidiary of the Company
for so long as such Indebtedness is held by the Company or a Wholly
Owned Restricted Subsidiary of the Company, in each case subject to
no Lien securing Indebtedness other than Permitted Liens; provided
that if as of any date any Person other than the Company or a Wholly
Owned Restricted Subsidiary of the Company owns or holds any such
Indebtedness or holds a Lien in respect of such Indebtedness securing
Indebtedness other than Permitted Liens, such date shall be deemed
the incurrence of Indebtedness not constituting Permitted
Indebtedness by the issuer of such Indebtedness;
(vi) Indebtedness of the Company to a Wholly Owned Restricted
Subsidiary of the Company for so long as such Indebtedness is held by
a Wholly Owned Restricted Subsidiary of the Company, in each case
subject to no Lien securing Indebtedness other than Permitted Liens;
provided that if as of any date any Person other than a Wholly Owned
Restricted Subsidiary of the Company owns or holds any such
Indebtedness or any Person other than a Wholly Owned Restricted
Subsidiary of the Company holds a Lien in respect of such
Indebtedness securing Indebtedness other than Permitted Liens, such
date shall be deemed the incurrence of Indebtedness not constituting
Permitted Indebtedness by the Company;
(vii) Indebtedness of the Company or any of its Restricted
Subsidiaries arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently
(except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; provided,
however, that such Indebtedness is extinguished within two Business
Days of incurrence;
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(viii) Indebtedness of the Company or any of its Restricted
Subsidiaries represented by letters of credit for the account of the
Company or any Restricted Subsidiary, as the case may be, in order to
provide security for workers' compensation claims, payment
obligations in connection with self-insurance or similar requirements
in the ordinary course of business;
(ix) Refinancing Indebtedness;
(x) Capitalized Lease Obligations and Purchase Money
Indebtedness of the Company or any of the Subsidiary Guarantors in an
aggregate principal amount not to exceed $5.0 million at any one time
outstanding; and
(xi) additional Indebtedness of the Company or any of its
Restricted Subsidiaries in an aggregate principal amount not to
exceed $10.0 million at any one time outstanding (which amount may,
but need not, be incurred in whole or in part under the Bank
Facility); provided, however, that the Indebtedness of Restricted
Subsidiaries that are not Subsidiary Guarantors permitted by this
clause (xi) shall not exceed $2.0 million at any one time
outstanding.
"Permitted Investments" means (i) Investments by the Company
or any Restricted Subsidiary of the Company in any Person that is or will
become, or Investments by the Company or any Restricted Subsidiary of the
Company which result in any Person becoming, in any case, immediately after such
Investment, a Restricted Subsidiary of the Company or that will merge or
consolidate into the Company or a Restricted Subsidiary of the Company; (ii)
Investments by any Restricted Subsidiary of the Company in the Company; (iii)
Investments in cash and Cash Equivalents; (iv) Investments existing as of the
Issue Date and any extension, modification or renewal of such Investment (but
not increases thereof, other than as a result of the accrual or accretion of
interest or original issue discount pursuant to the terms of such Investment);
(v) transactions or arrangements with officers, directors or employees of the
Company or any Subsidiary of the Company entered into in the ordinary course of
business (including compensation or employee benefit arrangements with any
officer or director of the Company or any Subsidiary of the Company permitted
under Section 4.10); (vi) Investments received as a result of the bankruptcy or
reorganization of any Person or taken in settlement of or other resolution of
claims or disputes, and, in each case, extensions, modifications and renewals
thereof; (vii) Investments made by the Company or its Restricted Subsidiaries as
a result of consideration received in connection with an Asset Sale made in
compliance with Section 4.15 or any exchange of any such Investment with the
issuer thereof, and extensions, modifications and renewals thereof; and (viii)
other Investments not to exceed $2.0 million at any one time outstanding.
"Permitted Liens" means the following types of Liens:
(i) Liens securing Indebtedness incurred under the Bank
Facility or pursuant to clause (xi) of the definition of Permitted
Indebtedness;
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(ii) Liens securing letters of credit issued in the ordinary
course of business consistent with past practice in connection with
workers' compensation, unemployment insurance and other types of
social security;
(iii) any interest or title of a lessor under any Capitalized
Lease Obligation; provided that such Liens do not extend to any
property or assets which is not leased property subject to such
Capitalized Lease Obligation;
(iv) Liens securing Purchase Money Indebtedness of the Company
or any Restricted Subsidiary of the Company; provided, however, that
(A) the Purchase Money Indebtedness shall not exceed the cost of such
property or assets and shall not be secured by any property or assets
of the Company or any Restricted Subsidiary of the Company other than
the property and assets so acquired and (B) the Lien securing such
Indebtedness shall be created within 90 days of such acquisition;
(v) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect
of bankers' acceptances issued or created for the account of such
Person to facilitate the purchase, shipment or storage of such
inventory or other goods;
(vi) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other
property relating to such letters of credit and products and proceeds
thereof;
(vii) Liens securing Interest Swap Obligations which Interest
Swap Obligations relate to Indebtedness that is otherwise permitted
under this Indenture;
(viii) Liens securing Acquired Indebtedness incurred in
accordance with Section 4.04; provided that (A) such Liens secured
such Acquired Indebtedness at the time of and prior to the incurrence
of such Acquired Indebtedness by the Company or a Restricted
Subsidiary of the Company and were not granted in connection with, or
in anticipation of, the incurrence of such Acquired Indebtedness by
the Company or a Restricted Subsidiary of the Company and (B) such
Liens do not extend to or cover any property or assets of the Company
or of any of its Restricted Subsidiaries other than the property or
assets that secured the Acquired Indebtedness prior to the time such
Indebtedness became Acquired Indebtedness of the Company or a
Restricted Subsidiary of the Company and are not materially more
favorable to the lienholders than those securing the Acquired
Indebtedness prior to the incurrence of such Acquired Indebtedness by
the Company or a Restricted Subsidiary of the Company;
(ix) Liens created under this Indenture;
(x) Liens of the Company or a Wholly Owned Restricted
Subsidiary of the Company on assets of any Restricted Subsidiary of
the Company; and
(xi) Liens securing Refinancing Indebtedness which is incurred
to Refinance any Indebtedness which has been secured by a Lien
permitted under this Indenture and which has been incurred in
accordance with the provisions of this Indenture; provided,
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however, that such Liens (X) are not materially less favorable to the
Holders and are not materially more favorable to the lienholders with
respect to such Liens than the Liens in respect of the Indebtedness
being Refinanced and (Y) do not extend to or cover any property or
assets of the Company or any of its Subsidiaries not securing the
indebtedness so Refinanced.
"Person" means an individual, partnership, corporation,
limited liability company, unincorporated organization, trust or joint venture,
or a governmental agency or political subdivision thereof.
"Physical Notes" has the meaning set forth in Section 2.01.
"Preferred Stock" of any Person means any Capital Stock of
such Person that has preferential rights over any other Capital Stock of such
Person with respect to dividends or redemptions or upon liquidation.
"Private Placement Legend" has the meaning set forth in
Section 2.02.
"pro forma" means, with respect to any calculation made or
required to be made pursuant to the terms of this Indenture, a calculation in
accordance with Article 11 of Regulation S-X under the Securities Act as
interpreted by the Company's Board of Directors in consultation with its
independent certified public accountants.
"Public Equity Offering" means an underwritten public offering
of Qualified Capital Stock of the Company pursuant to a registration statement
filed with the Commission in accordance with the Securities Act or any successor
statute.
"Purchase Agreement" means the Note Purchase Agreement dated
as of March 26, 1998 by and among the Company and the Initial Purchasers.
"Purchase Money Indebtedness" means Indebtedness of the
Company and its Restricted Subsidiaries incurred in connection with the purchase
of businesses (including Capital Stock of businesses primarily engaged in a
Related Business), properties or assets for the business of the Company and its
Restricted Subsidiaries and any Refinancing thereof.
"Qualified Capital Stock" means the Senior Preferred Stock and
any other Capital Stock that is not Disqualified Capital Stock.
"Qualified Institutional Buyer" or "QIB" means a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act.
"Record Date" means the applicable Record Date specified in
the Notes; provided that if any such date is not a Business Day, the Record Date
shall be the first day immediately preceding such specified day that is a
Business Day.
"Redemption Date," when used with respect to any Notes to be
redeemed, means the date fixed for such redemption pursuant to this Indenture
and the Notes.
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"Redemption Price," when used with respect to any Notes to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
and the Notes.
"Refinance" means, in respect of any security or Indebtedness,
to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire,
or to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Refinancing Indebtedness" means any Refinancing by the
Company or any Restricted Subsidiary of the Company of Indebtedness incurred in
accordance with Section 4.04 (other than pursuant to clause (ii), (iv), (v),
(vi), (vii), (viii), (x) or (xi) of the definition of Permitted Indebtedness),
to the extent that such Refinancing does not (1) result in an increase in the
aggregate principal amount of the Indebtedness of such Person as of the date of
such proposed Refinancing (plus the amount of any premium required to be paid
under the terms of the instrument governing such Indebtedness and plus the
amount of reasonable expenses incurred by the Company in connection with such
Refinancing) or (2) create Indebtedness with (A) at Weighted Average Life to
Maturity that is less than the Weighted Average Life to Maturity of the
Indebtedness being Refinanced or (B) a final maturity earlier than the final
maturity of the Indebtedness being Refinanced; provided that (x) if such
Indebtedness being Refinanced is Indebtedness solely of the Company, then such
Refinancing Indebtedness shall be Indebtedness solely of the Company and (y) if
such Indebtedness being Refinanced is subordinate or junior to the Notes, then
such Refinancing Indebtedness shall be subordinate to the Notes at least to the
same extent and in the same manner as the Indebtedness being Refinanced.
"Registered Exchange Offer" means the offer to exchange the
Exchange Notes for all of the outstanding Initial Notes in accordance with the
Registration Rights Agreement.
"Registrar" has the meaning set forth in Section 2.04.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of the Issue Date between the Company and the Initial
Purchasers.
"Regulation S" means Regulation S under the Securities Act.
"Related Business" means a business whose revenues are derived
from the general business conducted by the Company on the Issue Date or any
business or activity that (in the good faith judgment of Board of Directors of
the Company) is reasonably related thereto or a reasonable extension,
development or expansion thereof or ancillary thereto.
"Related Party" means, with respect to Green Equity Investors
II, L.P., any partnership, corporation or other Person which is managed or
controlled by Xxxxxxx Xxxxx & Partners, L.P. or any Affiliate thereof.
"Replacement Assets" has the meaning set forth in Section
4.15.
"Responsible Officer" means, when used with respect to the
Trustee, any officer in the Corporate Trust Office of the Trustee including any
vice president, assistant vice president, assistant secretary, treasurer,
assistant treasurer, or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at
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the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"Restricted Payments" has the meaning set forth in Section
4.03.
"Restricted Security" has the meaning set forth in Rule 144
(a) (3) under the Securities Act; provided that the Trustee shall be entitled to
request and conclusively rely upon an opinion of Counsel with respect to whether
any Note is a Restricted Security.
"Restricted Subsidiary" of the Company means any Subsidiary of
the Company which at the time of determination is not an Unrestricted
Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Restricted Subsidiary of any property,
whether owned by the Company or any Restricted Subsidiary at the Issue Date or
later acquired, which has been or is to be sold or transferred by the Company or
such Restricted Subsidiary to such Person or to any other Person by whom funds
have been or are to be advanced on the security of such Property.
"S&P" means Standard & Poor's Corporation and its successors.
"Securities Act" means the Securities Act of 1933, as amended,
or any successor statute or statutes thereto.
"Senior Preferred Stock" means the Series A 12% Senior
Redeemable Cumulative Preferred Stock of the Company issued pursuant to the
Certificate of Designations, Preferences and Relative, Participating, Optional
and Other Special Rights of Series A 12% Senior Redeemable Cumulative Preferred
Stock, as in effect on the Issue Date.
"Significant Subsidiary" shall have the meaning set forth in
Rule 1.02(w) of Regulation S-X under the Securities Act.
"Special Record Date" means a date fixed by the Trustee
pursuant to Section 2.13 for the payment of Defaulted Interest.
"Stock Purchase Agreement" means the Second Amended and
Restated Stock Purchase and Sale Agreement, dated as of January 15, 1998, as
amended as of the Issue Date, by and among VGMC Corp., GEI, Diamond Auto Glass
Works, Inc., Triumph Auto Glass, Inc., the Company, A Above Average Glass
Company by Diamond, Inc., A-AA Triumph Auto Glass, Inc., (Scranton Holdings,
Inc., Diamond/Triumph Auto Export Sales Co., Inc., A-Auto Glass by Triumph,
Inc,, A-Auto Glass Company by Diamond, Inc,, Xxxxxxx Xxxxxx and Xxxxxxx Xxxxx.
"Stockholders Agreement" means the Stockholders Agreement
dated as of the Issue Date among GEI, Xxxxxxx Xxxxxx, Xxxxxxx Xxxxx and the
Company, as such agreement may be amended from time to time, provided that no
such amendment shall have the effect of
-17-
increasing in any material respect the cost to the Company of the transactions,
payments or expenses permitted under such agreement pursuant to clause (ii) of
Section 4.10(b).
"Subordinated Management Fees" means the management fees
payable under the Management Services Agreement, which fees are subordinated in
right of payment, as provided in the Management Services Agreement, to the prior
payment in full in cash of all obligations of the Company with respect to the
Notes, whether for principal of, premium, if any or interest, or Additional
Interest, if any, on the Notes, expenses, indemnification or otherwise.
"Subsidiary," with respect to any Person, means (i) any
corporation of which the outstanding Capital Stock having at least a majority of
the votes entitled to be cast in the election of directors under ordinary
circumstances shall at the time be owned, directly or indirectly, by such
Person; or (ii) any other Person of which at least a majority of the voting
interest under ordinary circumstances is at the time, directly or indirectly,
owned by such Person.
"Subsidiary Guarantor" means each future Restricted Subsidiary
of the Company that executes a supplemental indenture in which such Restricted
Subsidiary agrees to be bound by the terms and provisions of this Indenture as a
Subsidiary Guarantor including, without limitation, the terms and provisions of
Article Ten.
"Surviving Entity" has the meaning set forth in Section 5.01.
"Temporary Offshore Global Note" has the meaning set forth in
Section 2.01.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb), as amended, as in effect on the date of the execution of this
Indenture until such time as this Indenture is qualified under the TIA, and
thereafter as in effect on the date on which this Indenture is qualified under
the TIA, except as otherwise provided in Section 9.03.
"Trustee" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture and thereafter means such successor.
"U.S. Global Note" has the meaning set forth in Section 2.01.
"U.S. Government Obligations" shall have the meaning set forth
in Section 8.01.
"U.S. Legal Tender" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
"U.S. Physical Notes" has the meaning set forth in Section
2.01.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company that at the time of determination shall be designated an Unrestricted
Subsidiary by the Board of Directors of the Company in the manner provided below
and (ii) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors of
the Company may designate any Subsidiary of the Company (including any newly
acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless
such Subsidiary or any of its Subsidiaries owns any Capital Stock or
Indebtedness of, or
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holds any Lien on any property of, the Company or any Restricted Subsidiary of
the Company that is not a Subsidiary of the Subsidiary to be so designated;
provided, however, that (A) either (1) the Subsidiary to be so designated has
total assets of $1,000 or less or (2) if such Subsidiary has assets greater than
$1,000, such designation would be permitted under Section 4.03 and (B) such
Subsidiary to be so designated and each of its Subsidiaries has not at the time
of such designation, and does not thereafter, incur any Indebtedness pursuant to
which the lender has recourse to any of the assets or properties of the Company
or any of its Restricted Subsidiaries (except to the extent such recourse arises
pursuant to an Investment permitted by this Indenture). The Board of Directors
may designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided, however, that (x) any Indebtedness of such Subsidiary outstanding at
the time of such designation shall be deemed to have been incurred at such time
and (y) immediately after giving effect to such designation and such incurrence
no Default shall have occurred and be continuing. Any such designation by the
Board of Directors shall be evidenced by the Company to the Trustee by promptly
filing with the Trustee a copy of the Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness (including any Disqualified Capital Stock) at any date, the number
of years obtained by dividing (a) the sum of the products obtained by
multiplying (x) the amount of each then remaining installment, sinking fund,
serial maturity or other required payment of principal, including payment at
final maturity, in respect thereof, by (y) the number of years (calculated to
the nearest one-twelfth) that will elapse between such date and the making of
such payment, by (b) the then outstanding principal amount or liquidation
preference, as applicable, of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of the Company means any
Restricted Subsidiary of the Company of which all the outstanding voting
securities (other than in the case of a foreign Restricted Subsidiary,
directors' qualifying shares or an immaterial amount of shares required to be
owned by other Persons pursuant to applicable law) are owned by the Company or
any Wholly Owned Restricted Subsidiary of the Company.
SECTION 1.02. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Holder or a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the "indenture securities" means the Company, any
Subsidiary Guarantor or any other obligor on the Notes.
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All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule and, in each case, not otherwise defined herein have the meanings assigned
to them therein.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(2) "or" is not exclusive;
(3) words in the singular include the plural, and words in the
plural include the singular;
(4) provisions apply to successive events and transactions;
and
(5) "herein," "hereof' and other words of similar import refer
to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
ARTICLE Two
THE NOTES
SECTION 2.01. Form and Dating.
The Initial Notes and the Trustee's certificate of
authentication thereof shall be substantially in the form of Exhibit A hereto,
which is hereby incorporated in and expressly made a part of this Indenture. The
Exchange Notes and the Trustee's certificate of authentication thereof shall be
substantially in the form of Exhibit B hereto, which is hereby incorporated in
and expressly made a part of this Indenture. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. The
Company and the Trustee shall approve the form of the Notes and any notation,
legend or endorsement on them. Each Note shall be dated the date of its issuance
and shall show the date of its authentication.
The terms and provisions contained in the Notes, annexed
hereto as Exhibits A and B, shall constitute, and are hereby expressly made, a
part of this Indenture and, to the extent applicable, the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A shall be
issued in the form of one or more permanent Global Notes in registered form,
substantially in the form set forth in Exhibit A (each a "U.S. Global Note")
deposited with the Trustee, as custodian for the Depository, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of a U.S. Global Note may from time to time be
increased or decreased by
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adjustments made on the records of the Trustee, as custodian for the Depository
or its nominee, as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of one or more temporary
Global Notes in registered form, substantially in the form set forth in Exhibit
A (each a "Temporary Offshore Global Note"), deposited with the Trustee, as
custodian for the Depository, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. At any time after the 41st day following
the original issuance of a Temporary Offshore Global Note (an "Offshore Notes
Exchange Date"), upon receipt by the Trustee and the Company of a certificate
substantially in the form of Exhibit C hereto, one or more permanent Global
Notes in registered form substantially in the form set forth in Exhibit A (each
a "Permanent Offshore Global Note" and, together with the Temporary Offshore
Global Note, the "Offshore Global Notes"), shall be deposited with the Trustee,
as custodian for the Depository, duly executed by the Company and authenticated
by the Trustee as hereinafter provided, and the Trustee, as custodian for the
depository or its nominee, shall reflect on its books and records the date and a
decrease in the principal amount of such Temporary Offshore Global Note
transferred in exchange for such Permanent Offshore Global Note.
Notes which are offered and sold to Accredited Investors which
are not QIBs (excluding Non-U.S. Persons), and Notes offered and sold in
reliance on any other exemption from the registration requirements under the
Securities Act, other than as described above, shall be issued in the form of
permanent certificated Notes in registered form, substantially in the form set
forth in Exhibit A (the "U.S. Physical Notes"), duly executed by the Company and
authenticated by the Trustee as hereinafter provided. Notes issued pursuant to
Section 2.16(b) or 2.17(d) in exchange for interests in the Offshore Global
Notes shall be in the form of permanent certificated Notes in registered form
substantially in the form set forth in Exhibit A (the "Offshore Physical Notes"
and, together with the U.S. Physical Notes, the "Physical Notes").
The definitive Notes shall .be typed, printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange on which the
Notes may be listed, all as determined by the Officers executing such Notes, as
evidenced by their execution of such Notes.
SECTION 2.02. Restrictive Legends.
(a) (i) Each U.S. Global Note and U.S. Physical Note shall
bear the legend set forth below (the "Private Placement Legend") unless and
until (1) such Note is exchanged for an Exchange Note in connection with the
Registered Exchange Offer, (2) such Note is offered and sold pursuant to an
effective registration statement under the Securities Act or (3) receipt by the
Trustee of an Opinion of Counsel reasonably satisfactory to the Trustee and the
Company to the effect that neither the Private Placement Legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act and (ii) each Offshore Global Note shall bear
the Private Placement Legend until at least 41 days after the date of its
original issuance and receipt by the Company and the Trustee of a certificate
substantially in the form of Exhibit C attached hereto: .
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THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) OR (B) IT IS AN "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT) (AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT; (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS
AFTER THE ORIGINAL ISSUANCE OF THIS NOTE RESELL OR OTHERWISE
TRANSFER THIS NOTE EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED
INVESTOR THAT IS ACQUIRING THE NOTE FOR ITS OWN ACCOUNT, OR
FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR, IN EACH CASE
IN A MINIMUM PRINCIPAL AMOUNT OF THE NOTES OF U. S. $250,000,
FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR
SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, AND THAT, PRIOR TO SUCH TRANSFER, FURNISHES
(OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF
THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE), (D) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (E) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT; AND (3)
AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
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LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN
TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE, IF THE
PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE
ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT.
(b) Each Global Note, whether or not an Exchange Note, shall
also bear the following legend on the face thereof:
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO THE DEPOSITORY TRUST COMPANY OR
NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS
OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.17 OF
THE INDENTURE.
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SECTION 2.03. Execution and Authentication.
Two Officers, or an Officer and an Assistant Secretary, shall
sign, or one Officer shall sign and one Officer or an Assistant Secretary (each
of whom shall, in each case, have been duly authorized by all requisite
corporate actions) shall attest to, the Notes for the Company by manual or
facsimile signature. The Company's seal may also be reproduced on the Notes.
If an Officer whose signature is on a Note was an Officer at
the time of such execution but no longer holds that office at the time the
Trustee authenticates the Note, the Note shall be valid nevertheless.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. Such
signature shall be conclusive evidence that the Note has been authenticated by
the Trustee under this Indenture.
The Trustee shall authenticate (i) the Initial Notes for
original issue on the Issue Date in the aggregate principal amount not to exceed
$100,000,000, (ii) the Exchange Notes from time to time only in exchange for a
like principal amount of Initial Notes, and (iii) Notes issued in one or more
series (such Notes to be substantially in the form of Exhibit A or Exhibit B
(and if in the form of Exhibit A, a like principal amount of Notes in the form
of Exhibit B in exchange therefor)) in each case upon receipt by the Trustee of
a written order of the Company (an "Authentication Order") and an Officers'
Certificate. The Authentication Order shall specify the amount of Notes to be
authenticated, the series of Notes and the date on which the Notes are to be
authenticated. Upon receipt of an Authentication Order and an Officers'
Certificate, the Trustee shall authenticate Notes in substitution for Notes
originally issued to reflect any name change of the Company.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Notes. Unless otherwise provided in
the appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company and Affiliates of the Company.
The Notes shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
SECTION 2.04. Registrar and Paying Agent.
The Company shall maintain an office or agency in the Borough
of Manhattan, The City of New York, where (a) Notes may be presented or
surrendered for registration of transfer or for exchange ("Registrar"), (b)
Notes may be presented or surrendered for payment ("Paying Agent") and (c)
notices and demands in respect of the Notes and this Indenture may be served.
The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Company, upon notice to the Trustee, may have one or more
Co-Registrars and one or more additional Paying Agents reasonably acceptable to
the Trustee. The term "Paying Agent" includes any additional Paying Agent.
Neither the Company nor any Affiliate of the Company may act as Paying Agent.
-24-
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which agreement shall incorporate
the provisions of the TIA and implement the provisions of this Indenture that
relate to such Agent. The Company shall notify the Trustee, in advance, of the
name and address of any such Agent. If the Company fails to maintain a Registrar
or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such.
The Company initially appoints the Trustee as Registrar,
Paying Agent and agent for service of demands and notices in connection with the
Notes, until such time as the Trustee has resigned or a successor has been
appointed. The Paying Agent or Registrar may resign upon 30 days notice to the
Company.
SECTION 2.05. Paving Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that each Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all assets held by the Paying Agent for the
payment of principal of, premium, if any, and interest and Additional Interest,
if any, on the Notes, and shall notify the Trustee of any Default by the Company
in making any such payment. The Company at any time may require a Paying Agent
to distribute all assets held by it to the Trustee and account for any assets
distributed and the Trustee may at any time during the continuance of any
payment Default, upon written request to a Paying Agent, require such Paying
Agent to distribute all assets held by it to the Trustee and to account for any
assets distributed. Upon distribution to the Trustee of all assets that shall
have been delivered by the Company to the Paying Agent, the Paying Agent shall
have no further liability for such assets.
SECTION 2.06. Noteholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee before each Record Date and at such other times as the
Trustee may request in writing a list as of such date and in such form as the
Trustee may reasonably require of the names and addresses of Holders, which list
may be conclusively relied upon by the Trustee.
SECTION 2.07. Transfer and Exchange.
Subject to the provisions of Sections 2.16 and 2.17, when
Notes are presented to the Registrar or a Co-Registrar with a request to
register the transfer of such Notes or to exchange such Notes for an equal
principal amount of Notes of other authorized denominations of the same series,
the Registrar or Co-Registrar shall register the transfer or make the exchange
as requested if its requirements for such transaction are met; provided,
however, that the Notes surrendered for transfer or exchange shall be duly
endorsed or accompanied by a written instrument of transfer in form satisfactory
to the Company and the Registrar or Co-Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing. To permit registrations of
transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Notes. No service charge shall be made for any registration of
transfer or exchange,
-25-
but the Company may require payment of a sum sufficient to cover any transfer
tax or similar governmental charge payable in connection therewith (other than
any such transfer taxes or other governmental charge payable upon exchanges or
transfers pursuant to Section 2.03, 2.11, 3.06, 4.14, 4.15 or 9.05 in which
event the Company shall be responsible for the payment of such taxes or
governmental charges). The Registrar or Co-Registrar shall not be required to
register the transfer of or exchange of any Note (i) during a period beginning
at the opening of business 15 days before the mailing of a notice of redemption
of Notes and ending at the close of business on the day of such mailing and (ii)
selected for redemption in whole or in part pursuant to Article Three, except
the unredeemed portion of any Note being redeemed in part.
Any Holder of a Global Note shall, by acceptance of such
Global Note, agree that transfers of beneficial interests in such Global Note
may be effected only through a book-entry system maintained by the Depository
(or its agent), and that ownership of a beneficial interest in a Global Note
shall be required to be reflected in a book entry.
SECTION 2.08. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the
Holder of a Note claims that the Note has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Note if the Trustee's requirements are met. If required by the Trustee or the
Company, such Holder must provide an indemnity bond or other indemnity,
sufficient in the judgment of both the Company and the Trustee, to protect the
Company, the Trustee and any Agent from any loss which any of them may suffer if
a Note is replaced. The Company may charge such Holder for its reasonable
out-of-pocket expenses in replacing a Note, including reasonable fees and
expenses of counsel.
Every replacement Note is an additional obligation of the
Company.
SECTION 2.09. Outstanding Notes.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those canceled by it, those delivered to it
for cancellation and those described in this Section as not outstanding. Subject
to Section 2.10, a Note does not cease to be outstanding because the Company or
any of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.08 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held by
a bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender
of such Note and replacement thereof pursuant to Section 2.08.
If on a Redemption Date or the Final Maturity Date the Paying
Agent holds U.S. Legal Tender sufficient to pay all of the principal and
interest due on that date with respect to the Notes (or portions thereof) to be
redeemed or maturing, as the case may be, then on and after that date such Notes
(or portions thereof) cease to be outstanding and interest on them shall cease
to accrue.
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SECTION 2.10. Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company or any of its Affiliates shall be disregarded, except that, for
the purposes of determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Notes that the Trustee actually
knows are so owned shall be disregarded.
The Trustee may require an Officers' Certificate listing Notes
owned by the Company or its Affiliates.
SECTION 2.11. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may
prepare, and the Trustee shall authenticate, temporary Notes upon receipt of a
written order of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of temporary Notes to be
authenticated and the date on which the temporary Notes are to be authenticated.
Temporary Notes shall be substantially in the form of definitive Notes but may
have variations that the Company considers appropriate for temporary Notes.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Notes in exchange for temporary Notes.
SECTION 2.12. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee, or
at the direction of the Trustee, the Registrar or the Paying Agent, and no one
else, shall cancel and, at the written direction of the Company, shall dispose
of all Notes surrendered for transfer, exchange, payment or cancellation,
provided that the Trustee shall not be required to destroy Notes. Subject to
Section 2.08, the Company may not issue new Notes to replace Notes that it has
paid or delivered to the Trustee for cancellation. If the Company shall acquire
any of the Notes, such acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Notes unless and until the
same are surrendered to the Trustee for cancellation pursuant to this Section
2.12.
SECTION 2.13. Defaulted Interest.
If the Company defaults in a payment of principal or interest
on the Notes, it shall pay, to the extent such payments are lawful, interest on
overdue principal and on overdue installments of interest (without regard to any
applicable grace periods) (herein called "Defaulted Interest") at the rate of
2.0% per annum in excess of the rate shown on the Notes. When any installment of
interest becomes Defaulted Interest, such installment shall forthwith cease to
be payable to the Holders in whose names the Notes were registered on the Record
Date applicable to such installment of interest. Defaulted Interest, and any
interest payable on such Defaulted Interest, may be paid by the Company, at its
election, as provided in clause (a) or (b) below.
(a) The Company may elect to make payment of any Defaulted
Interest, and any interest payable on such Defaulted Interest, to the Holders in
whose names the Notes are
-27-
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on the Notes and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Holders entitled to such Defaulted Interest as
provided in this Section 2.13(a). Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not more
than 15 calendar days and not less than 10 calendar days prior to the date of
the proposed payment and not less than 10 calendar days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be sent, first-class mail,
postage prepaid, to each Holder at such Holder's address as it appears in the
registration books of the Registrar, not less than 10 calendar days prior to
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Holders in whose names the Notes
are registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (b); or
(b) The Company may make payment of any Defaulted Interest,
and any interest payable on such Defaulted Interest, on the Notes in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause (b), such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.13, each
Note delivered under this Indenture upon registration of transfer of, or in
exchange for, or in lieu of, any other Note, shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Note.
SECTION 2.14. CUSIP Number.
The Company in issuing the Notes will use one or more CUSIP
numbers and the Trustee shall use the CUSIP numbers in notices of redemption or
exchange as a convenience to Holders. The Trustee and the Company shall not be
liable for any defect or inaccuracy in the CUSIP numbers that appear on any Note
or in any redemption notice. The Trustee, in its discretion, may include in any
notice a statement to the effect that the CUSIP numbers on the Notes have been
assigned by an independent service and are included in such notice solely for
the convenience of the Holders and that neither the Trustee nor the Company make
any representation as to the correctness or accuracy of the CUSIP numbers
printed in the notice or on the Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes. The Company shall
promptly notify the Trustee of any change in the CUSIP numbers.
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In the event that the Company shall issue and the Trustee
shall authenticate any Notes issued under this Indenture subsequent to the Issue
Date pursuant to clause (iii) of the first sentence of the fourth paragraph of
Section 2.03, the Company shall use its best efforts to obtain the same CUSIP
number for such Notes as is printed on the Notes outstanding at such time;
provided, however, that if any series of Notes issued under this Indenture
subsequent to the Issue Date is determined, pursuant to an Opinion of Counsel of
the Company in a form reasonably satisfactory to the Trustee to be a different
class of security than the Notes outstanding at such time for federal income tax
purposes, the Company may obtain a CUSIP number for such Notes that is different
than the CUSIP number printed on the Notes then outstanding.
Notwithstanding the foregoing, all Notes issued under this
Indenture shall vote and consent together on all matters as one class and no
series of Notes will have the right to vote or consent as a separate class on
any matter.
SECTION 2.15. Deposit of Moneys.
Prior to 10:00 a.m. New York City time on each Interest
Payment Date and the Final Maturity Date, the Company shall have deposited with
the Paying Agent in immediately available funds U.S. Legal Tender sufficient to
make cash payments due on such Interest Payment Date or Final Maturity Date, as
the case may be, in a timely manner which permits the Paying Agent to remit
payment to the Holders on such Interest Payment Date or Final Maturity Date, as
the case may be.
SECTION 2.16. Book-Entry Provisions for Global Notes.
(a) The Global Notes initially shall (i) be registered in the
name of the Depository or the nominee of such Depository, (ii) be delivered to
the Trustee as custodian for such Depository and (iii) bear legends as set forth
in Section 2.02.
Members of, or participants in, the Depository
("Participants") shall have no rights under this Indenture with respect to any
Global Note held on their behalf by the Depository, or the Trustee as its
custodian, or under the Global Note, and the Depository may be treated by the
Company, any Subsidiary, the Trustee and any agent of the Company, any
Subsidiary, or the Trustee as the absolute owner of the Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, any Subsidiary, the Trustee or any agent of the Company, any
Subsidiary, or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depository or impair, as between
the Depository and Participants, the operation of customary practices governing
the exercise of the rights of a Holder of any Note.
(b) Transfers of Global Notes shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Notes may be transferred
or exchanged for Physical Notes in accordance with the rules and procedures of
the Depository and the provisions of Section 2.17. In addition, Physical Notes
shall be transferred to all beneficial owners in exchange for their beneficial
interests in Global Notes if (i) the Depository notifies the Company that it is
unwilling or unable to continue as Depository for any Global Note and a
successor Depository is not appointed by the Company
-29-
within 90 days of such notice or (ii) an Event of Default has occurred and is
continuing and the Registrar has received a request from the Depository to issue
Physical Notes.
(c) In connection with any transfer or exchange of a portion
of the beneficial interest in a Global Note to beneficial owners pursuant to
paragraph (b) of this Section 2.16, the Registrar shall (if one or more Physical
Notes are to be issued) reflect on its books and records the date and a decrease
in the principal amount of the beneficial interest in the Global Note to be
transferred, and the Company shall execute and the Trustee shall authenticate
and make available for delivery, one or more Physical Notes of like tenor and
amount.
(d) In connection with the transfer of Global Notes as an
entirety to beneficial owners pursuant to paragraph (b) of this Section 2.16,
the Global Notes shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall upon written
instructions from the Company authenticate and make available for delivery, to
each beneficial owner identified by the Depository in exchange for its
beneficial interest in the Global Notes, an equal aggregate principal amount of
Physical Notes of authorized denominations.
(e) Any Physical Note constituting a Restricted Security
delivered in exchange for an interest in a Global Note pursuant to paragraph (b)
of this Section 2.16 shall, except as otherwise provided by Section 2.17, bear
the Private Placement Legend.
(f) The Holder of any Global Note may grant proxies and
otherwise authorize any Person, including Participants and Persons that may hold
interests through Participants, to take any action which a Holder is entitled to
take under this Indenture or the Notes.
SECTION 2.17. Registration of Transfers and Exchanges.
(a) Transfer and Exchange of Physical Notes. When Physical
Notes are presented to the Registrar or Co-Registrar with a request:
(i) to register the transfer of the Physical Notes; or
(ii) to exchange such Physical Notes for an equal number of
Physical Notes of other authorized denominations, the Registrar or
Co-Registrar shall register the transfer or make the exchange as
requested if the requirements under this Indenture as set forth in
this Section 2.17 for such transactions are met; provided, however,
that the Physical Notes presented or surrendered for registration of
transfer or exchange:
(I) shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Registrar or Co-Registrar,
duly executed by the Holder thereof or his attorney duly authorized in writing;
and
(II) in the case of Physical Notes the offer and sale of
which have not been registered under the Securities Act and which bear the
Private Placement Legend, such Physical Notes shall be accompanied, in the sole
discretion of the Company, by the following additional information and
documents, as applicable:
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(A) if such Physical Note is being delivered to the
Registrar or Co-Registrar by a Holder for
registration in the name of such Holder, without
transfer, a certification from such Holder to that
effect (substantially in the form of Exhibit D
hereto); or
(B) if such Physical Note is being transferred to a
Qualified Institutional Buyer in accordance with
Rule 144A, a certification to that effect
(substantially in the form of Exhibit D hereto); or
(C) if such Physical Note is being transferred to an
Accredited Investor, delivery of a certification to
that effect (substantially in the form of Exhibit D
hereto) and a Transferee Certificate for Accredited
Investors substantially in the form of Exhibit E
hereto; or
(D) if such Physical Note is being transferred in
reliance on Regulation S, delivery of a
certification to that effect (substantially in the
form of Exhibit D hereto) and a Transferee
Certificate for Regulation S Transfers substantially
in the form of Exhibit F hereto; or
(E) if such Physical Note is being transferred in
reliance on Rule 144 under the Securities Act,
delivery of a certification to that effect
(substantially in the form of Exhibit D hereto); or
(F) if such Physical Note is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act, a certification
to that effect (substantially in the form of Exhibit
D hereto) and an Opinion of Counsel reasonably
acceptable to the Company to the effect that such
transfer is in compliance with the rules and
regulations under the Securities Act applicable to
such exemption.
(b) Restrictions on Transfer of a Physical Note for a
Beneficial Interest in a Global Note. A Physical Note may not be exchanged for a
beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Registrar or Co-Registrar of a
Physical Note, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Registrar or Co-Registrar, together with:
(A) in the case of Physical Notes the offer and sale of
which have not been registered under the Securities
Act and which bear the Private Placement Legend,
certification, substantially in the form of Exhibit
D hereto, that such Physical Note is being
transferred (I) to a Qualified Institutional Buyer
or (II) in an offshore transaction in reliance on
Regulation S; and
(B) written instructions directing the Registrar or
Co-Registrar to make, or to direct the Depository to
make, an endorsement on the
-31-
applicable Global Note to reflect an increase in the
aggregate amount of the Notes represented by the
Global Note,
then the Registrar or Co-Registrar shall cancel such Physical Note and cause, or
direct the Depository to cause, in accordance with the standing instructions and
procedures existing between the Depository and the Registrar or Co-Registrar,
the principal amount of Notes represented by the applicable Global Note to be
increased accordingly. If no Global Note representing Notes held by Qualified
Institutional Buyers or Persons acquiring Notes in offshore transactions in
reliance on Regulation S, as the case may be, is then outstanding, the Company
shall issue and the Trustee shall, upon written instructions from the Company in
accordance with Section 2.03, authenticate such a Global Note in the appropriate
principal amount.
(c) Transfer and Exchange of Global Notes. (i) Subject to
clause (ii) of this paragraph (c), the transfer and exchange of Global Notes or
beneficial interests therein shall be effected through the Depository in
accordance with this Indenture (including the restrictions on transfer set forth
herein) and the procedures of the Depository therefor. Upon receipt by the
Registrar or Co-Registrar of written instructions, or such other instruction as
is customary for the Depository, from the Depository or its nominee, requesting
the registration of transfer of an interest in a Global Note to another type of
Global Note, together with the applicable Global Notes (or, if the applicable
type of Global Note required to represent the interest as requested to be
transferred is not then outstanding, only the Global Note representing the
interest being transferred), the Registrar or Co-Registrar shall cancel such
Global Notes (or Global Note) and the Company shall issue and the Trustee shall,
upon written instructions from the Company in accordance with Section 2.02,
authenticate new Global Notes of the types so canceled (or the type so canceled
and applicable type required to represent the interest as requested to be
transferred) reflecting the applicable increase and decrease of the principal
amount of Notes represented by such types of Global Notes, giving effect to such
transfer. If the applicable type of Global Note required to represent the
interest as requested to be transferred is not outstanding at the time of such
request, the Company shall issue and the Trustee shall, upon written
instructions from the Company in accordance with Section 2.02, authenticate a
new Global Note of such type in principal amount equal to the principal amount
of the interest requested to be transferred.
(ii) Notwithstanding clause (i) above, beneficial interests in
a Temporary Offshore Global Note may not be transferred to a Person that takes
delivery thereof in the form of an interest in a U.S. Global Note and beneficial
interests in a U.S. Global Note may not be transferred to a Person that takes
delivery thereof in the form of an interest in a Temporary Offshore Global Note.
(d) Transfer of a Beneficial Interest in a Global Note for a
Physical Note.
(i) Any Person having a beneficial interest in a Global Note
(other than a Temporary Offshore Global Note) may exchange upon
request such beneficial interest for a Physical Note. Upon receipt by
the Registrar or Co-Registrar of written instructions, or such other
form of instructions as is customary for the Depository, from the
Depository or its nominee on behalf of any Person having a beneficial
interest in a Global Note and upon receipt by the Trustee of a
written order or such other form of instructions as is customary for
the Depository or the Person designated by the
-32-
Depository as having such a beneficial interest containing
registration instructions and, in the case of any such transfer or
exchange of a beneficial interest in a Note the offer and sale of
which has not been registered under the Securities Act and which
bears the Private Placement Legend, the following additional
information and documents:
(A) if such beneficial interest is being transferred to
the Person designated by the Depository as being the
beneficial owner, a certification from such Person
to that effect (substantially in the form of Exhibit
D hereto); or
(B) if such beneficial interest is being transferred to
a Qualified Institutional Buyer in accordance with
Rule 144A, a certification to that effect
(substantially in the form of Exhibit D hereto); or
(C) if such beneficial interest is being transferred to
an Accredited Investor, delivery of a certification
to that effect (substantially in the form of Exhibit
D hereto) and a Transferee Certificate for
Accredited Investors substantially in the form of
Exhibit E hereto; or
(D) if such beneficial interest is being transferred in
reliance on Regulation S, delivery of a
certification to that effect (substantially in the
form of Exhibit D hereto) and a Transferee
Certificate for Regulation S Transfers substantially
in the form of Exhibit F hereto; or
(E) if such beneficial interest is being transferred in
reliance on Rule 144 under the Securities Act,
delivery of a certification to that effect
(substantially in the form of Exhibit D hereto); or
(F) if such beneficial interest is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act, a certification
to that effect (substantially in the form of Exhibit
D hereto) and an Opinion of Counsel reasonably
satisfactory to the Company to the effect that such
transfer is in compliance with the rules and
regulations under the Securities Act applicable to
such exemption,
then the Registrar or Co-Registrar will cause, in accordance with the standing
instructions and procedures existing between the Depository and the Registrar or
Co-Registrar, the aggregate principal amount of the applicable Global Note to be
reduced and, following such reduction, the Company will execute and, upon
receipt of an authentication order in the form of an Officers' Certificate in
accordance with Section 2.03, the Trustee will authenticate and make available
for delivery to the transferee a Physical Note.
(ii) Notes issued in exchange for a beneficial interest in a
Global Note pursuant to clause (d) of this Section 2.17 shall be
registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its direct or
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indirect participants or otherwise, shall instruct the Registrar or
Co-Registrar in writing. The Registrar or Co-Registrar shall make
available for delivery such Physical Notes to the Persons in whose
names such Physical Notes are so registered.
(e) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provisions of this Indenture, a Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository or
a nominee of such successor Depository.
(f) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar or
Co-Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the transfer, exchange or replacement of Notes bearing the Private
Placement Legend, the Registrar or Co-Registrar shall deliver only Notes that
bear the Private Placement Legend unless, and the Trustee is hereby authorized
and directed to deliver Notes without the Private Placement Legend if, (i) there
is delivered to the Trustee an Opinion of Counsel reasonably satisfactory to the
Company and the Trustee to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act, (ii) such Note has been sold pursuant to an
effective registration statement under the Securities Act or (iii) such Note has
been exchanged for an Exchange Note pursuant to the Registered Exchange Offer.
(g) General. By its acceptance of any Notes bearing the
Private Placement Legend, each Holder of such a Note acknowledges the
restrictions on transfer of such Notes set forth in this Indenture and in the
Private Placement Legend and agrees that it will transfer such Notes only as
provided in this Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.16 or this Section
2.17. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Registrar.
SECTION 2.18. Additional Interest Under Registration Rights Agreement.
Under certain circumstances, the Company shall be obligated to
pay Additional Interest to the Holders, all as set forth in Section 4 of the
Registration Rights Agreement. The terms thereof are hereby incorporated herein
by reference.
ARTICLE Three
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to Paragraph 5
or Paragraph 6 of the Notes, it shall notify the Trustee in writing of the
Redemption Date, the Redemption Price and the principal amount of Notes to be
redeemed. The Company shall give notice of redemption
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to the Paying Agent and Trustee at least 30 days but not more than 60 days
before the Redemption Date (unless a shorter notice shall be agreed to by the
Trustee in writing), together with an Officers' Certificate stating that such
redemption will comply with the conditions contained herein.
SECTION 3.02. Selection of Notes To Be Redeemed.
In the event that less than all of the Notes are to be
redeemed at any time, selection of such Notes for redemption will be made by the
Trustee in compliance with the requirements of the principal national securities
exchange, if any, on which such Notes are listed or, if such Notes are not then
listed on a national securities exchange, on a pro rata basis, by lot or by such
method as the Trustee shall deem fair and appropriate; provided, however, that
no Notes of a principal amount of $1,000 or less shall be redeemed in part and
Notes of a principal amount in excess of $1,000 may be redeemed in part in
multiples of $1,000 only; and provided, further, that if a partial redemption is
made with the proceeds of a Public Equity Offering, selection of the Notes or
portions thereof for redemption shall, subject to the preceding proviso, be made
by the Trustee only on a pro rata basis or on as nearly a pro rata basis as is
practicable (subject to the procedures of the Depository), unless such method is
otherwise prohibited.
The Trustee shall make the selection from the Notes
outstanding and not previously called for redemption and shall promptly notify
the Company in writing of the Notes selected for redemption and, in the case of
any Note selected for partial redemption, the principal amount thereof to be
redeemed. Notes in denominations of $1,000 or less may be redeemed only in
whole. The Trustee may select for redemption portions (equal to $1,000 or any
integral multiple thereof) of the principal of Notes that have denominations
larger than $1,000. Provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail a notice of redemption by first class mail, postage
prepaid, to each Holder whose Notes are to be redeemed at its registered
address. At the Company's request made at least 45 days (unless a shorter period
shall be acceptable to the Trustee) before the Redemption Date, the Trustee
shall give the notice of redemption in the Company's name and at the Company's
expense. Each notice for redemption shall identify the Notes to be redeemed
(including the CUSIP number(s), if any) and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest,
if any, to be paid;
(3) the name and address of the Paying Agent;
(4) that Notes called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price, including accrued
interest, if any;
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(5) that, unless the Company defaults in making the redemption
payment, interest on Notes called for redemption shall cease to
accrue on and after the Redemption Date, and the only remaining right
of the Holders of such Notes is to receive payment of the Redemption
Price upon surrender to the Paying Agent of the Notes redeemed; i
(6) if any Note is being redeemed in part, the notice of
redemption that relates to such Notes shall state the portion of the
principal amount of such Note to be redeemed and that, after the
Redemption Date, and upon surrender of such Note, a new Note or Notes
in aggregate principal amount equal to the unredeemed portion thereof
will be issued;
(7) if fewer than all the Notes are to be redeemed, the
aggregate principal amount of Notes to be redeemed and the aggregate
principal amount of Notes to be outstanding after such partial
redemption;
(8) the paragraph of the Notes pursuant to which the Notes are
to be redeemed; and
(9) if the Redemption Date is after a Record Date and prior to
the Interest Payment Date to which such Record Date relates, that the
accrued interest on the Notes called for redemption shall be payable
to the Holders of such Notes on the relevant Record Date and no
accrued interest will be included in the Redemption Price of the
Notes redeemed on the Redemption Date.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.03, Notes called for redemption become due and payable on the Redemption Date
and at the Redemption Price including accrued interest, if any, thereon. Upon
surrender to the Trustee or Paying Agent, such Notes called for redemption shall
be paid at the Redemption Price (which shall include accrued interest thereon to
the Redemption Date) stated in such notice; provided that, if the Redemption
Date is after a Record Date and prior to the Interest Payment Date to which such
Record Date relates, the accrued interest shall be payable to the Holders of the
redeemed Notes on the relevant Record Date and no accrued interest will be
included in the Redemption Price of the Notes redeemed on the Redemption Date.
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.
On or before 10:00 a.m. New York City Time on the Redemption
Date, the Company shall deposit with the Paying Agent U.S. Legal Tender
sufficient to pay the Redemption Price including accrued interest, if any, of
all Notes to be redeemed on that date.
If the Company complies with the preceding paragraph, then,
unless the Company defaults in the payment of such Redemption Price including
accrued interest, if any, interest on the Notes to be redeemed will cease to
accrue on and after the applicable Redemption Date, whether or not such Notes
are presented for payment.
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SECTION 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is to be redeemed in part only,
the Trustee shall, upon written instruction from the Company, authenticate for
the Holder thereof a new Note or Notes in a principal amount equal to the
unredeemed portion of the Note surrendered.
ARTICLE Four
COVENANTS
SECTION 4.01. Payment of Notes.
The Company will pay the principal of, premium, if any, and
interest and Additional Interest, if any, on the Notes in the manner provided in
the Notes and in this Indenture. An installment of principal of or interest or
Additional Interest, if any, on the Notes shall be considered paid on the date
it is due if the Trustee or Paying Agent (other than the Company or an Affiliate
of the Company) holds on that date U. S. Legal Tender designated for and
sufficient to pay the installment in full and is not prohibited from paying such
money to the Holders pursuant to the terms of this Indenture.
The Company will pay, to the extent such payments are lawful,
Defaulted Interest and interest on Defaulted Interest, compounded semi-annually
on each Interest Payment Date, at the rate of 2% per annum in excess of the rate
shown on the Notes. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
SECTION 4.02. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The
City of New York, the office or agency required under Section 2.04. The Company
shall give prompt written notice (in any event no later than forty-eight hours
after any change in location) to the Trustee of the location, and any change in
the location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth in Section 11.02.
The Company hereby initially designates the office of the Trustee at 00
Xxxxxxxx, Xxxxxxxxx Xxxxx, Xxxxxxxxx Trust Window, Xxx Xxxx, Xxx Xxxx 00000 as
its office or agency in the Borough of Manhattan, The City of New York.
SECTION 4.03. Limitation on Restricted Payments.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, (a) declare or pay any
dividend or make any distribution (other than (q) dividends or distributions
payable in Qualified Capital Stock of the Company or in warrants, rights or
options to purchase or acquire shares of Qualified Capital Stock of the Company,
(r) dividends on shares of the Senior Preferred Stock paid by increasing the
then liquidation preference per share of the Senior Preferred Stock or (s)
dividends or distributions payable to the Company or a Restricted Subsidiary and
pro rata dividends or distributions to the Company and/or its Restricted
Subsidiaries and to minority holders of Capital Stock of
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Restricted Subsidiaries) on or in respect of shares of Capital Stock of the
Company or any Restricted Subsidiary to holders of such Capital Stock, (b)
purchase, redeem or otherwise acquire or retire for value any Capital Stock of
the Company or any warrants, rights or options to purchase or acquire shares of
any class of such Capital Stock, (c) make any principal payment on, purchase,
defease, redeem, prepay, decrease or otherwise acquire or retire for value,
prior to any scheduled final maturity, scheduled repayment or scheduled sinking
fund payment, as the case may be, any Indebtedness of the Company or any
Subsidiary Guarantor that is subordinate or junior in right of payment to the
Notes or Guarantees or (d) make any Investment (other than Permitted
Investments) (each of the foregoing actions set forth in clauses (a), (b), (c)
and (d) being referred to as a "Restricted Payment"), if at the time of such
Restricted Payment or immediately after giving effect thereto, (i) a Default or
an Event of Default shall have occurred and be continuing or (ii) the Company is
not able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.04 or (iii) the aggregate
amount of Restricted Payments (including such proposed Restricted Payment) made
subsequent to the Issue Date (the amount expended for such purposes, if other
than in cash, being the fair market value of such property) shall exceed the sum
of: (w) 50% of the cumulative Consolidated Net Income (or if cumulative
Consolidated Net Income shall be a loss, minus 100% of such loss) of the Company
accrued during the period (treated as one accounting period) beginning on April
1, 1998 to the end of the most recent fiscal quarter ending at least 45 days
prior to the date of such Restricted Payment; plus (x) 100% of the aggregate net
cash proceeds received by the Company from any Person (other than a Subsidiary
of the Company) from the issuance and sale subsequent to the Issue Date of
Qualified Capital Stock of the Company or any warrants, rights or options to
purchase or acquire shares of Capital Stock of the Company or from the issuance
and sale subsequent to the Issue Date of any debt or other security of the
Company that has been converted into or exchanged for Qualified Capital Stock of
the Company; plus (y) the net cash proceeds of any capital contribution to the
Company subsequent to the Issue Date; plus (z) without duplication, the sum of
(1) the aggregate amount returned in cash on or with respect to Investments
(other than Permitted Investments) made subsequent to the Issue Date whether
through interest payments, principal payments, dividends or other distributions
or payments, (2) the net cash proceeds received by the Company or any Restricted
Subsidiary from the disposition of all or any portion of such Investments (other
than to a Restricted Subsidiary of the Company), (3) to the extent that any such
Investment was in the form of a guarantee, any reduction in the amount
guaranteed, and (4) the portion (proportionate to the Company's equity interest
in such Subsidiary) of the fair market value of the net assets of an
Unrestricted Subsidiary at the time such Unrestricted Subsidiary is designated a
Restricted Subsidiary; provided, however, that the foregoing sum shall not
exceed, in the case of any Unrestricted Subsidiary, the amount of Investments
previously made (and treated as a Restricted Payment) by the Company or any
Restricted Subsidiary in such Unrestricted Subsidiary.
Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph do not prohibit: (1) the payment of any dividend
within 60 days after the date of declaration of such dividend if the dividend
would have been permitted on the date of declarations; (2) if no Default or
Event of Default shall have occurred and be continuing, the acquisition of any
shares of Capital Stock of the Company or any warrants, rights or options to
purchase or acquire shares of Capital Stock of the Company, (i) in exchange for
shares of Qualified Capital Stock of the Company or any warrants, rights or
options to purchase or acquire shares of Qualified Capital Stock of the Company
or (ii) through the application of net proceeds
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of a substantially concurrent sale for cash (other than to a Subsidiary of the
Company) of shares of Qualified Capital Stock of the Company or any warrants,
rights or options to purchase or acquire shares of Qualified Capital Stock of
the Company; (3) if no Default or Event of Default shall have occurred and be
continuing, the voluntary prepayment, purchase, defeasance, redemption or other
acquisition or retirement for value of any Indebtedness of the Company or any
Subsidiary Guarantor that is subordinate or junior in right of payment to the
Notes or Guarantees (i) solely in exchange for shares of Capital Stock of the
Company or any warrants, rights or options to purchase or acquire shares of
Capital Stock of the Company; provided, however, that if such Capital Stock is,
or such warrants, rights or options to purchase such Capital Stock are
convertible into or exchangeable at the option of the holder thereof for,
Disqualified Capital Stock, then such Disqualified Capital Stock shall not (i)
by its terms, or upon the happening of any event, mature or be mandatorily
redeemable pursuant to a sinking fund obligation or otherwise, or be redeemable
at the option of the holder thereof, in any case, on or prior to the final
maturity of the Indebtedness permitted to be prepaid, purchased, defeased,
redeemed or acquired pursuant to this clause (3) and (ii) have a Weighted
Average Life to Maturity less than the Indebtedness permitted to be prepaid,
purchased, defeased, redeemed or acquired pursuant to this clause (3) or (iii)
through the application of net proceeds of a substantially concurrent sale for
cash (other than to a Subsidiary of the Company) of (A) shares of Qualified
Capital Stock of the Company or any warrants, rights or options to purchase or
acquire shares of Qualified Capital Stock of the Company or (B) Refinancing
Indebtedness; (4) so long as no Default or Event of Default shall have occurred
and be continuing, repurchases by the Company of Common Stock of the Company or
options, warrants or other securities exercisable or convertible into Common
Stock of the Company from employees and directors of the Company or any of its
Subsidiaries or their authorized representatives upon the death, disability or
termination of employment or directorship of such employees or directors, in an
aggregate amount not to exceed $750,000 in any calendar year and $3.0 million in
the aggregate (in each case plus the amount of net cash proceeds received by the
Company from the sale of Qualified Capital Stock or any warrants, rights or
options to purchase or acquire shares of Qualified Capital Stock to employees or
directors of the Company and its Subsidiaries, to the extent that such amounts
did not provide the basis for any previous Restricted Payment); and (5) so long
as no Default or Event of Default shall have occurred and be continuing, the
payment of dividends on the shares of the Senior Preferred Stock with (x) the
net proceeds of a sale for cash (other than to a Subsidiary of the Company) of
shares of Qualified Capital Stock of the Company or any warrants, rights or
options to purchase or acquire shares of Qualified Capital Stock of the Company
or (y) the net cash proceeds of any capital contribution to the Company to the
extent such amounts in clauses (x) and (y) did not provide the basis for any
previous Restricted Payment. In determining the aggregate amount of Restricted
Payments made subsequent to the Issue Date in accordance with clause (iii) of
the immediately preceding paragraph, amounts expended pursuant to clauses (1),
(2)(ii), (3)(ii)(A), (4) and (5) shall be included in such calculation and
amounts expended pursuant to clauses (2)(i), 3(i) and 3(ii)(B) shall not be
included in such calculation.
Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an officers' certificate stating that such
Restricted Payment complies with this Indenture and setting forth in reasonable
detail the basis upon which the required calculations were computed, which
calculations may be based upon the Company's latest available internal quarterly
financial statements.
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SECTION 4.04. Limitation on Incurrence of Additional Indebtedness.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume,
guarantee, become liable, contingently or otherwise, with respect to, or
otherwise become responsible for payment of (collectively, "incur"), any
Indebtedness (including Acquired Indebtedness but excluding Permitted
Indebtedness); provided, however, that if no Default or Event of Default shall
have occurred and be continuing at the time of or as a consequence of the
incurrence of such Indebtedness, the Company and the Subsidiary Guarantors may
incur Indebtedness (including, without limitation, Acquired Indebtedness) if on
the date of the incurrence of such Indebtedness, after giving effect to the
incurrence thereof, the Consolidated Fixed Charge Coverage Ratio of the Company
is greater than 2.0 to 1.0.
Indebtedness of a Person which is secured by a Lien on an
asset acquired by the Company or a Restricted Subsidiary of the Company (whether
or not such Indebtedness is assumed by the acquiring Person) shall be deemed
incurred at the time of the Asset Acquisition.
SECTION 4.05. Corporate Existence.
Except as otherwise permitted by Article Five or elsewhere in
this Indenture, the Company shall do or cause to be done, at its own cost and
expense, all things necessary to preserve and keep in full force and effect its
existence.
SECTION 4.06. Payment of Taxes.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, all material taxes,
assessments and governmental charges levied or imposed upon it or any of its
Restricted Subsidiaries or upon the income, profits or property of it or any of
its Restricted Subsidiaries, except (a) to the extent that (i) such taxes,
assessments and charges are being contested in good faith by appropriate
proceedings and (ii) appropriate reserves have been taken with respect to such
taxes, assessments and charges to the extent required by GAAP or (b) where the
failure to effect such payment or discharge is not adverse in any material
respect to the Holders.
SECTION 4.07. Compliance Certificate; Notice of Default.
(a) The annual reports delivered pursuant to Section 4.08 to
the Trustee shall be accompanied by an Officers' Certificate stating that a
review of the activities of the Company has been made under the supervision of
the signing Officers and further stating, as to each such Officer signing such
certificate, that to the best of his knowledge at the date of such Officers'
Certificate there is no Default or Event of Default that has occurred and is
continuing or, if such signers do know of such Default or Event of Default, the
certificate shall describe its status with particularity. The Officers'
Certificate shall also notify the Trustee should the Company elect to change the
manner in which it fixes its fiscal year end.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants or to
the policies of the Company's independent accountants, the annual reports
delivered pursuant to Section 4.08 to the Trustee shall be accompanied by a
written report of the Company's independent accountants (who shall
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be a firm of established national reputation) that in conducting their audit of
the financial statements of the Company for the most recent fiscal year nothing
has come to their attention that would lead them to believe that a Default or
Event of Default under this Indenture has occurred insofar as they relate to
accounting matters or, if any such violation has occurred, specifying the nature
and period of existence thereof, it being understood that such accountants shall
not be liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation that would not be disclosed in the course of an
audit examination conducted in accordance with GAAP.
(c) (i) If any Default or Event of Default has occurred and is
continuing or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the Notes, the Company
shall deliver to the Trustee, at its address set forth in Section 11.02 hereof,
by registered or certified mail or by facsimile transmission followed by hard
copy by registered or certified mail an Officers' Certificate specifying such
event, notice or other action and the status thereof within five Business Days
of its becoming aware of such occurrence.
SECTION 4.08. Commission Reports.
Notwithstanding that the Company may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, so long as
any Notes remain outstanding, the Company shall provide the Trustee, the
Noteholders and the Initial Purchasers with such annual reports and such
information, documents and other reports (other than exhibits) as are specified
in Sections 13 and 15(d) of the Exchange Act and applicable to a U. S.
corporation subject to such Sections, such information, documents and other
reports to be so provided within 15 days after the times specified for the
filing of such information, documents and reports under such Sections.
Notwithstanding that the Company may not be subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company will,
beginning on the earlier of (x) the effective date of the Exchange Offer
Registration Statement and (y) 730 days following the Issue Date, file with the
Commission, to the extent permitted, such annual reports and such information,
documents and other reports as are specified in Sections 13 and 15(d) of the
Exchange Act and applicable to a U.S. corporation subject to such Sections, such
information, documents and other reports to be so filed within 15 days after the
times specified for the filing of such information, documents and reports under
such Sections. In addition, the Company will make available, upon request, to
any holder and any prospective purchaser of Notes the information required
pursuant to Rule 144A(d)(4) under the Securities Act. Following qualification of
this Indenture under the TIA, the Company shall also comply with the other
provisions of TIA ss. 314(a).
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
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SECTION 4.09. Waiver of Stay, Extension or Usury Laws.
The Company (and each Subsidiary Guarantor, if any,) covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay or extension law or any usury law or other law that would prohibit
or forgive the Company or such Subsidiary Guarantor from paying all or any
portion of the principal of, premium, if any, and interest and Additional
Interest, if any, on the Notes as contemplated herein, wherever enacted, now or
at any time hereafter in force, and (to the extent that they may lawfully do so)
the Company hereby expressly waives, and each future Subsidiary Guarantor, if
any, will waive, all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 4.10. Limitation on Transactions with Affiliates.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into any transaction
or series of related transactions (including, without limitation, the purchase,
sale, lease or exchange of any property or the rendering of any service) with,
or for the benefit of, any of its Affiliates (each an "Affiliate Transaction"),
other than (x) Affiliate Transactions permitted under paragraph (b) below and
(y) Affiliate Transactions on terms that are no less favorable than those that
could reasonably be expected to be obtained in a comparable transaction at such
time on an arm's-length basis from a Person that is not an Affiliate of the
Company or such Restricted Subsidiary. All Affiliate Transactions (and each
series of related Affiliate Transactions which are similar or part of a common
plan), other than Affiliate Transactions permitted under paragraph (b) below,
involving consideration to either party in excess of $1.0 million shall be
approved by the Board of Directors of the Company or such Restricted Subsidiary,
as the case may be, such approval to be evidenced by a Board Resolution stating
that such Board of Directors has determined that such transaction complies with
the foregoing provisions. If the Company or any Restricted Subsidiary of the
Company enters into an Affiliate Transaction (or a series of related Affiliate
Transactions related to a common plan), other than Affiliate Transactions
permitted under paragraph (b) below, that involves aggregate consideration to
either xxxxx of more than $5.0 million, the Company or such Restricted
Subsidiary, as the case may be, shall, prior to the consummation thereof, obtain
a favorable opinion as to the fairness of such transaction or series of related
transactions to the Company or the relevant Restricted Subsidiary, as the case
may be, from a financial point of view, from an Independent Financial Advisor
and file the same with the Trustee.
(b) The restrictions set forth in paragraph (a) shall not
apply to (i) compensation, indemnification and other benefits paid or made
available (x) pursuant to the Employment Agreements, or (y) for or in connection
with services actually rendered and comparable to those generally paid or made
available by entities engaged in the same or similar businesses (including
reimbursement or advancement of reasonable out-of-pocket expenses, loans to
officers, directors and employees in the ordinary course of business consistent
with past practice and directors' and officers' liability insurance) as
determined in good faith by the Company's Board of Directors or senior
management; (ii) transactions, expenses and payments pursuant to the terms of or
contemplated by the Stockholders Agreement, the Management Subscription and
Stockholders
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Agreements or the Stock Purchase Agreement; (iii) any Restricted Payments or
other payments or transactions expressly permitted under Section 4.03; (iv)
payments for services and reimbursement of reasonable expenses under the
Management Services Agreement; (v) payments to be made in connection with the
consummation of the transactions contemplated by the Stock Purchase Agreement or
the financing thereof to be received by Xxxxxxx Xxxxx & Partners, L.P., and its
Affiliates pursuant to the Stock Purchase Agreement as in effect on the Issue
Date; (vi) transactions and payments pursuant to leases between the Company and
Xxxxxxx Xxxxx and Xxxxxxx Xxxxxx, General Partnership in effect on the Issue
Date as any such leases may be extended or amended from time to time; (vii)
transactions between or among the Company and any of its Restricted Subsidiaries
or between or among such Restricted Subsidiaries; provided such transactions are
not otherwise prohibited by this Indenture; (viii) Permitted Investments; and
(ix) loans or advances to officers or employees of the Company in the ordinary
course of business not to exceed $500,000 in the aggregate at any one time
outstanding.
SECTION 4.11. Conduct of Business.
The Company and its Restricted Subsidiaries shall not engage
in any businesses other than a Related Business.
SECTION 4.12. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
permit to exist or become effective any consensual encumbrance or restriction on
the ability of any Restricted Subsidiary of the Company to (a) pay dividends or
make any other distributions on or in respect of its Capital Stock; (b) make
loans or advances or to pay any Indebtedness or other obligation owed to the
Company or any other Restricted Subsidiary of the Company; or (c) transfer any
of its property or assets to the Company or any other Restricted Subsidiary of
the Company, except for such encumbrances or restrictions existing under or by
reason of: (1) applicable law; (2) this Indenture; (3) any Bank Facility,
provided that the provisions relating to such encumbrance or restriction are not
materially more restrictive than those in the Bank Facility as in existence on
the Issue Date, as any such restriction may apply to any present or future
Restricted Subsidiary of the Company; (4) customary non-assignment provisions of
any contract and customary provisions restricting assignment or subletting in
any lease governing a leasehold interest of any Restricted Subsidiary of the
Company, or any customary restriction on the ability of a Restricted Subsidiary
of the Company to dividend, distribute or otherwise transfer any asset which
secures Purchase Money Indebtedness of such Subsidiary; (5) any instrument
governing Acquired Indebtedness, which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person or the properties or assets of the Person so acquired; (6)
restrictions with respect to a Subsidiary of the Company imposed pursuant to a
binding agreement which has been entered into for the sale or disposition of
Capital Stock or assets of such Subsidiary, provided such restrictions apply
solely to the Capital Stock or assets of such Subsidiary which are being sold;
(7) customary restrictions imposed on the transfer of copyrighted or patented
materials; or (8) an agreement governing Indebtedness incurred to Refinance the
Indebtedness issued, assumed or incurred pursuant to an agreement referred to in
clause (2), (3) or (5) above; provided, however, that the provisions relating to
such encumbrance
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or restriction contained in any such Indebtedness are not materially more
restrictive than the provisions relating to such encumbrance or restriction
contained in agreements referred to in such clause (2), (3) or (5).
Notwithstanding the foregoing, Liens not prohibited by the terms of this
Indenture shall not be considered a restriction on the ability of the applicable
Subsidiary to transfer any assets.
SECTION 4.13. Limitation on Liens.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
permit or suffer to exist any Liens (other than Permitted Liens) securing any
Indebtedness of any kind against or upon any property or assets of the Company
or any of its Restricted Subsidiaries whether owned on the Issue Date or
acquired after the Issue Date, or any proceeds therefrom, unless (i) in the case
of Liens securing Indebtedness that is expressly subordinate or junior in right
of payment to the Notes, the Notes are secured by a Lien on such property,
assets or proceeds that is senior in priority to such Liens and (ii) in all
other cases, the Notes are equally and ratably secured.
SECTION 4.14. Change of Control.
(a) Upon the occurrence of a Change of Control, the Company
shall make an offer to purchase (the "Change of Control Offer") all of the then
outstanding Notes pursuant to the offer described in paragraph (b) below at a
purchase price equal to 101 % of the principal amount thereof, plus accrued and
unpaid interest, if any, thereon to the date of purchase (subject to the right
of Holders of record on a Record Date to receive interest due on an Interest
Payment Date that is on or prior to such date of purchase and subject to clause
(b)(9) below).
(b) Within 30 days following the date upon which a Change of
Control occurred, the Company shall send, by first class mail, a notice to each
Holder, with a copy to the Trustee, which notice shall govern the terms of the
Change of Control Offer. The notice to the Holders shall contain all
instructions and materials reasonably necessary to enable such Holders to tender
Notes pursuant to the Change of Control Offer. Such notice shall state:
(1) that the Change of Control Offer is being made pursuant to
this Section 4.14 and that all Notes properly tendered and not
withdrawn will be accepted for payment;
(2) the purchase price (including the amount of accrued
interest, if any) and the purchase date, which shall be no earlier
than 30 days nor later than 60 days from the date such notice is
mailed, other than as may be required by law (the "Change of Control
Payment Date");
(3) that any Note not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in making payment
therefor, any Note accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest on and after the Change
of Control Payment Date;
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(5) that Holders electing to have a Note purchased pursuant to
a Change of Control Offer will be required to surrender such Note,
with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Note completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the third
Business Day prior to the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than the close of business on
the third Business Day prior to the Change of Control Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Notes the Holder
delivered for purchase and a statement that such Holder is
withdrawing his election to have such Notes purchased or portions
thereof;
(7) that Notes will be purchased in part only in integral
multiples of $1,000 and that Holders whose Notes are purchased only
in part will be issued new Notes in a principal amount equal to the
unpurchased portion of the Notes surrendered;
(8) a brief description of the event resulting in such Change
of Control; and
(9) if the Change of Control Payment Date is after a Record
Date and prior to the Interest Payment Date to which such Record Date
relates, that the accrued interest on the Notes purchased pursuant to
the Change of Control Offer shall be payable to the Holders of such
Notes on the relevant Record Date and no accrued interest will be
included in the purchase price of the Notes purchased on the Change
of Control Payment Date.
On or before the Change of Control Payment Date, the Company
shall (i) accept for payment Notes or portions thereof properly tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent U.S.
Legal Tender sufficient to pay the purchase price, including accrued interest,
if any, of all Notes so tendered and (iii) deliver to the Trustee Notes so
accepted together with an Officers' Certificate stating the Notes or portions
thereof being purchased by the Company. The Paying Agent shall promptly mail to
the Holders of Notes so accepted payment in an amount equal to the purchase
price, including accrued interest, if any, thereon and the Trustee shall
promptly authenticate and mail to such Holders new Notes equal in principal
amount to any unpurchased portion of the Notes surrendered. Any Notes not so
accepted shall be promptly mailed by the Company to the Holder thereof. For
purposes of this Section 4.14, the Trustee shall act as the Paying Agent.
Any amounts remaining after the purchase of Notes pursuant to
a Change of Control Offer shall be returned by the Trustee to the Company.
The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
purchase of Notes pursuant to a Change of Control Offer. To the extent the
provisions of any securities laws or regulations conflict with the provisions
under this Section 4.14, the Company shall comply with the applicable securities
laws
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and regulations and shall not be deemed to have breached its obligations under
this Section 4.14 by virtue thereof.
SECTION 4.15. Limitation on Asset Sales.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or
the applicable Restricted Subsidiary, as the case may be, receives consideration
at the time of such Asset Sale at least equal to the fair market value of the
assets sold or otherwise disposed of (as determined in good faith by the
Company's Board of Directors), (ii) at least 75% of the consideration received
for the assets sold by the Company or the Restricted Subsidiary, as the case may
be, from such Asset Sale shall be in the form of cash or Cash Equivalents and is
received at the time of such disposition; provided, however, that for purposes
of this clause (ii) only, (A) notes received by the Company or such Restricted
Subsidiary as consideration for an Asset Sale that are converted into cash or
Cash Equivalents within 30 days following the consummation of such Asset Sale or
(B) the assumption by the purchaser of assets pursuant to an Asset Sale of
Indebtedness of the Company or such Restricted Subsidiary (other than
Indebtedness that is by its terms subordinate to the Notes or any Guarantee)
shall, in each case of the immediately preceding clauses (A) and (B), be deemed
to be cash or Cash Equivalents at the time of such Asset Sale in an amount equal
to, in the case of clause (A), the amount of cash or Cash Equivalents realized
on such conversion and, in the case of clause (B), the amount of the
Indebtedness so assumed, as reflected on the balance sheet of the Company, and
(iii) following the consummation of an Asset Sale, the Company shall or cause
such Restricted Subsidiary, within 365 days of receipt thereof either (A) to
apply the Net Cash Proceeds related to such Asset Sale to prepay any
Indebtedness that by its terms is not subordinate to the Notes or any Guarantee
(and to permanently reduce the commitments, if any, with respect thereto), (B)
to make a Permitted Investment or an investment in properties and assets that
replace the properties and assets that were the subject of such Asset Sale or in
properties and assets that will be used in a Related Business (collectively,
"Replacement Assets") or (C) a combination of prepayment and investment
permitted by the foregoing clauses (iii)(A) and (iii)(B). On the 365th day after
an Asset Sale, or such earlier date, if any, as the Board of Directors of the
Company determines not to apply or cause to be applied the Net Cash Proceeds
relating to such Asset Sale as set forth in clauses (iii)(A), (iii)(B) and
(iii)(C) of the next preceding sentence (each, a "Net Proceeds Offer Trigger
Date"), such aggregate amount of Net Cash Proceeds which have not been applied
on or before the applicable Net Proceeds Offer Trigger Date as permitted in
clauses (iii)(A), (iii)(B) and (iii)(C) of the next preceding sentence (or, in
the case of a Net Proceeds Offer Trigger Date occurring prior to such 365th day,
the aggregate amount of Net Cash Proceeds that the Board of Directors of the
Company has determined not to so apply) (each a "Net Proceeds Offer Amount")
shall be applied by the Company or such Restricted Subsidiary to make an offer
to purchase (the "Net Proceeds Offer") on a date (the "Net Proceeds Offer
Payment Date") not less than 30 nor more than 45 days following the applicable
Net Proceeds Offer Trigger Date, from all Holders on a pro rata basis (and on a
pro rata basis with the holders of any other Indebtedness of the Company that is
not by its terms subordinate in right of payment to the Notes with similar
provisions requiring the Company to offer to purchase such Indebtedness with the
proceeds of asset sales), that principal amount of Notes and such other
Indebtedness equal to the Net Proceeds Offer Amount at a price, in the case of
the Notes, equal to 100% of the principal amount of the Notes to be purchased,
plus accrued and unpaid interest thereon, to the date of purchase (subject to
the right of Holders
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of record on a Record Date to receive interest due on an Interest Payment Date
that is on or prior to such date of purchase and subject to clause (8) below);
provided, however, that if at any time any non-cash consideration received by
the Company or any Restricted Subsidiary of the Company, as the case may be, in
connection with any Asset Sale is converted into or sold or otherwise disposed
of for cash (other than interest received with respect to any such non-cash
consideration), then such conversion or disposition shall be deemed to
constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be
applied in accordance with this Section 4.15. The Company may defer the Net
Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount
equal to or in excess of $5.0 million resulting from one or more Asset Sales (at
which time, the entire Net Proceeds Offer Amount, and not just the amount in
excess of $5.0 million, shall be applied as required pursuant to this
paragraph).
In the event of the transfer of substantially all (but not
all) of the property and assets of the Company and its Restricted Subsidiaries
as an entirety to a Person in a transaction permitted under Section 5.01, the
Surviving Entity shall be deemed to have sold the properties and assets of the
Company and its Restricted Subsidiaries not so transferred for purposes of this
Section 4.15, and shall comply with the provisions of this Section 4.15 with
respect to such deemed sale as if it were an Asset Sale. In addition, the fair
market value of such properties and assets of the Company or its Restricted
Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for
purposes of this Section 4.15.
Notwithstanding the two immediately preceding paragraphs, the
Company and its Restricted Subsidiaries will be permitted to consummate an Asset
Sale without complying with such paragraphs to the extent (i) at least 75% of
the consideration for such Asset Sale constitutes Replacement Assets and cash or
Cash Equivalents and (ii) such Asset Sale is for fair market value; provided
that any consideration not constituting Replacement Assets received by the
Company or any of its Restricted Subsidiaries in connection with any Asset Sale
permitted to be consummated under this paragraph shall constitute Net Cash
Proceeds subject to the provisions of the two preceding paragraphs.
Notice of each Net Proceeds Offer pursuant to this Section
4.15 shall be mailed or caused to be mailed, by first class mail, by the Company
within 25 days following the applicable Net Proceeds Offer Trigger Date to all
Holders, with a copy to the Trustee. The notice shall contain all instructions
and materials reasonably necessary to enable such Holders to tender Notes
pursuant to the Net Proceeds Offer and shall state:
(1) that the Net Proceeds Offer is being made pursuant to this
Section 4.15 and that all Notes properly tendered and not withdrawn
will be accepted for payment; provided, however, that if the
principal amount of Notes properly tendered and not withdrawn,
together with the principal amount of any other Indebtedness properly
tendered and not withdrawn, in the Net Proceeds Offer exceeds the Net
Proceeds Offer Amount, the Company shall select the Notes and such
other Indebtedness, if any, to be purchased on a pro rata basis based
on their respective principal amounts (provided that no Notes or
other Indebtedness with a principal amount of less than $1,000 shall
be purchased in part and Notes and other Indebtedness with a
principal amount in excess of $1,000 shall be purchased in integral
multiples of $1,000 only);
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(2) the Net Proceeds Offer price for the Notes (including the
amount of accrued interest, if any) and the Net Proceeds Offer
Payment Date;
(3) that any Note not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in making payment
therefor, any Note accepted for payment pursuant to the Net Proceeds
Offer shall cease to accrue interest on and after the Net Proceeds
Offer Payment Date;
(5) that Holders electing to have a Note purchased pursuant to
the Net Proceeds Offer will be required to surrender such Note, with
the form entitled "Option of Holder to Elect Purchase" on the reverse
of the Note completed, to the Paying Agent at the address specified
in the notice prior to the close of business on the third Business
Day prior to the Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than the close of business on
the third Business Day prior to the Net Proceeds Offer Payment Date,
a facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Notes the Holder delivered for
purchase and a statement that such Holder is withdrawing his election
to have such Notes (or portions thereof) purchased;
(7) that Notes will be purchased in part only in integral
multiples of $1,000 and that Holders whose Notes are purchased only
in part will be issued new Notes in a principal amount equal to the
unpurchased portion of the Notes surrendered; and
(8) if the Net Proceeds Offer Payment Date is after a Record
Date and prior to the Interest Payment Date to which such Record Date
relates, that the accrued interest on the Notes purchased pursuant to
the Net Proceeds Offer shall be payable to the Holders of such Notes
on the relevant Record Date and no accrued interest will be included
in the purchase price of the Notes purchased on the Net Proceeds
Offer Date.
On or before the Net Proceeds Offer Payment Date, the Company
shall, subject to the proration provisions referred to above, (i) accept for
payment Notes or portions thereof properly tendered pursuant to the Net Proceeds
Offer, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay
the purchase price, including accrued interest, if any, of all Notes to be
purchased and (iii) deliver to the Trustee Notes so accepted together with an
Officers' Certificate stating the Notes or portions thereof being purchased by
the Company. The Paying Agent shall promptly mail to the Holders of Notes so
accepted payment in an amount equal to the purchase price, including accrued
interest, if any, thereon and the Trustee shall promptly authenticate and mail
to such Holders new Notes equal in principal amount to any unpurchased portion
of the Notes surrendered. Any Notes not so accepted shall be promptly mailed by
the Company to the Holder thereof. For purposes of this Section 4.17, the
Trustee shall act as the Paying Agent.
Any Net Proceeds Offer shall remain open for a period of at
least 20 Business Days (or such longer period as may be required by law).
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The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
purchase of Notes pursuant to a Net Proceeds Offer. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of
this Section 4.15, the Company shall comply with the applicable securities laws
and regulations and shall not be deemed to have breached its obligations under
this Section 4.15 by virtue thereof.
Upon completion of a Net Proceeds Offer, the amount of Net
Cash Proceeds will be reset at zero. Accordingly, to the extent that the
aggregate amount of Notes and other Indebtedness tendered pursuant to a Net
Proceeds Offer is less than the Net Cash Proceeds Offer Amount, the Company may
use any remaining Net Cash Proceeds for general corporate purposes.
SECTION 4.16. Limitation on Preferred Stock of Restricted Subsidiaries.
The Company will not permit any of its Restricted Subsidiaries
to issue any Preferred Stock (other than to the Company or to a Wholly Owned
Restricted Subsidiary of the Company) or permit any Person (other than the
Company or a Wholly Owned Restricted Subsidiary of the Company) to own any
Preferred Stock of any Restricted Subsidiary of the Company; provided, however,
that any Restricted Subsidiary of the Company that is not a Wholly-Owned
Restricted Subsidiary of the Company may issue Preferred Stock to, and such
Preferred Stock may be owned by, the holders of the Common Stock of such
Subsidiary in the same proportions as their relative ownership of the Common
Stock of such Subsidiary.
SECTION 4.17. Future Guarantees.
The Company will cause any Person that shall become a Wholly
Owned Restricted Subsidiary of the Company and has total assets having a book
value of more than $50,000, and each future non-Wholly Owned Restricted
Subsidiary of the Company that guarantees any other Indebtedness of the Company
or a Subsidiary Guarantor, to become a Subsidiary Guarantor by executing and
delivering an appropriate supplemental indenture. In addition, other Restricted
Subsidiaries of the Company may, but are not required, to become Subsidiary
Guarantors.
ARTICLE Five
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets.
The Company will not, in a single transaction or series of
related transactions, consolidate or merge with or into any Person, or sell,
assign, transfer, lease, convey or otherwise dispose of (or cause or permit any
Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise
dispose of) all or substantially all of the Company's assets (determined on a
consolidated basis for the Company and its Subsidiaries) whether as an entirety
or substantially as an entirety to any Person unless: (i) either (1) the Company
shall be the surviving or con-
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tinuing corporation or (2) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which acquires
by sale, assignment, transfer, lease, conveyance or other disposition the
properties and assets of the Company and of the Company's Subsidiaries
substantially as an entirety (the "Surviving Entity") (x) shall be a
corporation, limited liability company or similar entity organized and validly
existing under the laws of the United States or any State thereof or the
District of Columbia and (y) shall expressly assume, by supplemental indenture
(in form and substance satisfactory to the Trustee), executed and delivered to
the Trustee, the due and punctual payment of the principal of, and premium, if
any, and interest and Additional Interest, if any, on all of the Notes and the
performance of every covenant of the Notes and this Indenture on the part of the
Company to be performed or observed; (ii) immediately after giving effect to
such transaction and the assumption contemplated by clause (i)(2)(y) above
(including giving effect to any Indebtedness and Acquired Indebtedness incurred
or anticipated to be incurred in connection with or in respect of such
transaction), the Company or such Surviving Entity, as the case may be, (1)
shall have a Consolidated Net Worth equal to or greater than the Consolidated
Net Worth of the Company immediately prior to such transaction and (2) shall be
able to incur at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 4.04; (iii) immediately before and immediately
after giving effect to such transaction and the assumption contemplated by
clause (i)(2)(y) above (including, without limitation, giving effect to any
Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred
and any Lien granted in connection with or in respect of the transaction), no
Default or Event of Default shall have occurred or be continuing and (iv) the
Company or the Surviving Entity shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, sale, assignment, transfer, lease, conveyance or other disposition and,
if a supplemental indenture is required in connection with such transaction,
such supplemental indenture, comply with the applicable provisions of this
Indenture and that all conditions precedent in this Indenture relating to such
transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Subsidiaries of the Company the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
The foregoing provisions shall not apply to (w) any transfer
of the properties or assets of a Subsidiary of the Company to the Company or to
a Wholly Owned Restricted Subsidiary of the Company, (x) any merger of a
Restricted Subsidiary of the Company into the Company or (y) any merger of the
Company into a Restricted Subsidiary of the Company. In addition, the
requirements of clause (ii)(2) of the first paragraph of this Section 5.01 shall
not apply to any merger into the Company of a Person that (i) owns more than 50%
of the outstanding Common Stock of the Company and (ii) has no Indebtedness
(other than any guarantees of Indebtedness of the Company and the Subsidiary
Guarantors).
SECTION 5.02. Successor Person Substituted.
Upon any consolidation, combination or merger or any transfer
of all or substantially all of the assets of the Company in accordance with the
foregoing, in which the
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Company is not the continuing corporation, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
lease or transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture and the
Notes with the same effect as if such Surviving Entity had been named as such.
SECTION 5.03. Merger, Consolidation and Sale of Assets of Subsidiary
Guarantors.
Each Subsidiary Guarantor (other than any Subsidiary Guarantor
whose Guarantee, is to be released in accordance with the terms of its Guarantee
and this Indenture in connection with any transaction complying with the
provisions of Section 4.15 or as otherwise provided in this Indenture) will not,
and the Company will not cause or permit any Subsidiary Guarantor to,
consolidate with or merge into any Restricted Subsidiary of the Company that is
not a Subsidiary Guarantor unless such Restricted Subsidiary (if such Restricted
Subsidiary is the surviving entity in such transaction) assumes by supplemental
indenture all of the obligations of such Subsidiary Guarantor in respect of its
Guarantee.
ARTICLE Six
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" occurs in the following circumstances:
(i) the failure to pay interest on any Notes when the same
becomes due and payable and the default continues for a period of 30
days;
(ii) the failure to pay the principal on any Notes, when such
principal becomes due and payable, at maturity, upon redemption or
otherwise (including the failure to make a required payment to
purchase Notes tendered pursuant to a Change of Control Offer or a
Net Proceeds Offer);
(iii) the failure of the Company to comply with Article Five;
(iv) a default in the observance or performance of any other
covenant or agreement contained in this Indenture which default
continues for a period of 30 days after the Company receives written
notice specifying the default (and demanding that such default be
remedied) from the Trustee or the Holders of at least 25% of the
outstanding principal amount of the Notes;
(v) the failure to pay at final maturity (giving effect to any
applicable grace periods and any extensions thereof) the principal
amount of any Indebtedness of the Company or any Restricted
Subsidiary of the Company, or the acceleration of the final stated
maturity of any such Indebtedness by reason of a default or event of
default in respect of such Indebtedness, in any case if the aggregate
principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness in
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default for failure to pay principal at final maturity or which has
been so accelerated, aggregates $5.0 million or more at any time;
(vi) one or more judgments in an aggregate amount in excess of
$5.0 million shall have been rendered against the Company or any of
its Restricted Subsidiaries and such judgments remain undischarged,
unpaid or unstayed for a period of 60 days after such judgment or
judgments become final and non-appealable;
(vii) the Company or any of its Significant Subsidiaries (i)
admits in writing its inability to pay its debts generally as they
become due, (ii) commences a voluntary case or proceeding under any
Bankruptcy Law with respect to itself, (iii) consents to the entry of
a judgment, decree or order for relief against it in an involuntary
case or proceeding under any Bankruptcy Law, (iv) consents to the
appointment of a Custodian of it or for substantially all of its
property, (v) consents to or acquiesces in the institution of a
bankruptcy or an insolvency proceeding against it under any
Bankruptcy Law, (vi) makes a general assignment for the benefit of
its creditors or (vii) takes any partnership or corporate action, as
the case may be, to authorize or effect any of the foregoing;
(viii) a court of competent jurisdiction enters a judgment,
decree or order for relief in respect of the Company or any of its
Significant Subsidiaries in an involuntary case or proceeding under
any Bankruptcy Law, which shall (i) approve as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition in respect of the Company or any of its Significant
Subsidiaries, (ii) appoint a Custodian of the Company or any of its
Significant Subsidiaries or for substantially all of the property of
any of them or (iii) order the winding-up or liquidation of the
affairs of the Company or any of its Significant Subsidiaries; and
such judgment, decree or order shall remain unstayed and in effect
for a period of 60 consecutive days; or
(ix) the Guarantee of any Subsidiary Guarantor is held by a
final non-appealable order or judgment of a court of competent
jurisdiction to be unenforceable or invalid or ceases for any reason
to be in full force and effect (other than in accordance with the
terms of this Indenture) or any Subsidiary Guarantor or any Person
acting on behalf of any Subsidiary Guarantor denies or disaffirms
such Subsidiary Guarantor's obligations under its Guarantee (other
than by reason of a release of such Subsidiary Guarantor from its
Guarantee in accordance with the terms of this Indenture).
SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of Default
specified in clause (vii) or (viii) of Section 6.01) shall occur and be
continuing, the Trustee or the Holders of at least 25% in principal amount of
outstanding Notes may declare the principal of, premium, if any, and accrued and
unpaid interest and Additional Interest, if any, on all the outstanding Notes to
be due and payable by notice in writing to the Company and the Trustee
specifying the respective Event of Default and that it is a "notice of
acceleration" (the "Acceleration Notice"), and the same shall become immediately
due and payable. If an Event of Default specified in clause (vii) or (viii) of
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Section 6.01 occurs and is continuing, then all unpaid principal of, and
premium, if any, and accrued and unpaid interest and Additional Interest, if
any, on all of the outstanding Notes shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holder.
At any time after a declaration of acceleration with respect
to the Notes as described in the preceding paragraph, the Holders of a majority
in principal amount of the Notes may rescind and cancel such declaration and its
consequences (i) if the rescission would not conflict with any judgment or
decree, (ii) if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of the
acceleration, (iii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal, which has
become due otherwise than by such declaration of acceleration, has been paid,
(iv) if the Company has paid the Trustee its reasonable compensation and
reimbursed the Trustee for its reasonable expenses, disbursements and advances
and (v) in the event of the cure or waiver of an Event of Default of the type
described in clause (vii) or (viii) of Section 6.01, the Trustee shall have
received an Officers' Certificate and an Opinion of Counsel that such Event of
Default has been cured or waived. No such rescission shall affect any subsequent
Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, premium, if any, and interest and Additional Interest,
if any, on the Notes or to enforce the performance of any provision of the Notes
or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Noteholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Subject to Sections 2.10 and 9.02, the Holders of not less
than a majority in principal amount of the outstanding Notes by written notice
to the Trustee or by written consent may waive any existing Default or Event of
Default and its consequences, except a Default in the payment of principal of,
premium, if any, and interest and Additional Interest, if any, on any Note. The
Company shall deliver to the Trustee an Officers' Certificate stating that the
requisite percentage of Holders have consented to such waiver and attaching
copies of such consents. When a Default or Event of Default is waived, it is
cured and ceases.
SECTION 6.05. Control by Majority.
The Holders of not less than a majority in principal amount of
the outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it. Subject to Section 7.01,
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however, the Trustee may refuse to follow any direction that conflicts with any
law or this Indenture, that the Trustee determines may be unduly prejudicial to
the rights of another Noteholder, or that may, in the sole judgment of the
Trustee, give rise to or subject the Trustee to personal liability; provided
that the Trustee may take any other action deemed proper by the Trustee.
In the event the Trustee takes any action or follows any
direction pursuant to this Indenture, the Trustee shall be entitled to
indemnification satisfactory to it in its sole discretion against any loss or
expense caused by taking such action or following such direction.
SECTION 6.06. Limitation on Suits.
A Noteholder may not pursue any remedy with respect to this
Indenture or the Notes unless:
(1) such Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in principal amount of the
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(3) such Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee in its sole judgment
against any loss, liability or expense;
(4) the Trustee does not comply with the request described in
clause (2) above within 60 days after receipt thereof and the offer
described in clause (3) above and, if requested, the provision of
indemnity; and
(5) during such 60-day period the Holder or Holders of a
majority in principal amount of the outstanding Notes do not give the
Trustee a written direction which, in the opinion of the Trustee, is
inconsistent with the request.
A Noteholder may not use this Indenture to prejudice the
rights of another Noteholder or to obtain a preference or priority over such
other Noteholder.
SECTION 6.07. Rights of Holders To Receive Payment; Right of Majority
Holders to Enforce Indenture.
Notwithstanding any other provision of this Indenture, (i) the
right of any Holder of a Note to institute suit for enforcement of payment of
the principal of, premium, if any, and interest and Additional Interest, if any,
on such Note on or after the respective due dates expressed in such Note or (ii)
the right of Holders of a majority in principal amount of the outstanding Notes
to institute any proceeding with respect to this Indenture or any remedy
thereunder, including, without limitation, acceleration, shall not be impaired
or affected without the written consent of such Holder in the case of (i) or the
Holders of a majority in principal amount of the outstanding Notes in the case
of (ii); provided that upon institution of any proceeding or exercise of any
remedy, such Holder or Holders provide the Trustee with prompt notice hereof.
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SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal or interest
specified in clause (i) or (ii) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Notes for the whole amount of
principal and accrued interest and fees remaining unpaid, together with interest
on overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate per annum
borne by the Notes and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the actual, documented compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Noteholders allowed in any judicial proceedings relating to the Company, any
Subsidiaries of the Company, their creditors or their property and shall be
entitled and empowered to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same, and any
Custodian in any such judicial proceedings is hereby authorized by each
Noteholder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Noteholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent and
counsel, and any other amounts due the Trustee under Section 7.07. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Noteholder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Noteholder in any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money or property pursuant to this
Article Six, 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 Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal and
interest, respectively; and
Third: to the Company.
The Trustee, upon prior notice to the Company, may fix a
record date and payment date for any payment to Noteholders pursuant to this
Section 6.10.
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SECTION 6.11. Undertaking for Costs.
Each party to this Indenture agrees and each Holder of any
Note by its acceptance thereof shall be deemed to have agreed that, 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 and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit instituted by the Company, any suit instituted by the
Trustee, any suit instituted by a Holder pursuant to Section 6.07, or any suit
instituted by a Holder or Holders of more than 10% in principal amount of the
outstanding Notes.
ARTICLE Seven
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(b) Except during the continuance of an Event of Default
actually known to a Responsible Officer of the Trustee:
(1) The Trustee need perform only those duties as are
expressly and specifically set forth herein and no others and no
implied covenants, duties or obligations whatsoever shall be read
into this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions and such other documents delivered to it pursuant to Section
11.04 hereof 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) Notwithstanding anything to the contrary herein contained,
the Trustee may not be relieved from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section 7.01.
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(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts
necessary to make such judgment.
(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) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or to take or omit to take any
action under this Indenture or take any action at the request or direction of
Holders if it shall reasonably believe that repayment of such funds is not
assured to it or if it receives no indemnity that is, in its sole discretion,
adequate against such risk, liability, loss, fee or expense which might be
incurred by it in compliance with such request or direction.
(e) Every provision of this Indenture that in any way relates
to the Trustee is subject to this Section 7.01 and Section 7.02.
(f) The Trustee shall not be liable for interest on any money
or assets received by it except as the Trustee may agree in writing with the
Company. Assets held in trust by the Trustee need not be segregated from other
assets of the Trustee except to the extent required by law.
(g) The Trustee shall not be accountable for the use of any of
the Notes delivered hereunder or the proceeds thereof.
(h) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty or obligation on
its part and the Trustee shall not be liable for not taking such permissive
action unless it has been negligent or engaged in willful misconduct in not
taking such action.
(i) Except for Events of Default relating to the payment of
the principal or the interest with respect to the Notes, the Trustee shall not
be required to take notice, and shall not be deemed to have notice, of any
Default unless the Trustee shall be notified specifically and expressly in
writing of the Default; such notice being deemed "actual notice." In the absence
of delivery of a written notice satisfying these requirements, the Trustee may
assume conclusively that there is no Default, except as noted above.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely conclusively on any document believed
by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.
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(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate and an Opinion of Counsel, which shall conform
to the provisions of Sections 11.04 and 11.05. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
certificate or opinion.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent (other
than an agent who is an employee of the Trustee) appointed in good faith.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be authorized or
within its rights or powers.
(e) The Trustee may consult with counsel of its selection and
the advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any action
taken, omitted or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity satisfactory to the Trustee in its sole judgment against the costs,
expenses and liabilities which may be incurred therein or thereby.
(g) The Trustee shall not be deemed to have notice of any
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Notes and this Indenture.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company, its
Subsidiaries, if any, or their respective Affiliates with the same rights it
would have if it were not Trustee. Any Agent may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes,
and it shall not be responsible for any statement of the Company in this
Indenture or any document issued in connection with the sale of Notes or any
statement in the Notes other than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing
and the Trustee receives actual notice of such event, the Trustee shall mail to
each Noteholder, as their names and addresses appear on the Noteholder list
described in Section 2.06, notice of the uncured
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Default or Event of Default within 90 days after the Trustee receives such
notice. Except in the case of a Default or an Event of Default in payment of
principal of, premium, if any, and interest and Additional Interest, if any, on
any Note, including the failure to make payment on (i) the Change of Control
Payment Date pursuant to a Change of Control Offer or (ii) the Net Proceeds
Offer Payment Date pursuant to a Net Proceeds Offer, the Trustee shall not be
deemed to have actual knowledge or actual notice of a Default or an Event of
Default unless a Responsible Officer of the Trustee received written notice of
such Default or Event of Default and the Trustee may withhold the notice if and
so long as the Board of Directors, the executive committee, or a trust committee
of directors and/or Responsible Officers, of the Trustee in good faith
determines that withholding the notice is in the interest of the Noteholders.
SECTION 7.06. Reports by Trustee to Holders.
Within 60 days after each May 15, the Trustee shall, to the
extent that any of the events described in TIA ss. 313(a) occurred within the
previous twelve months, but not otherwise, mail to each Noteholder a brief
report dated as of such May 15 that complies with TIA ss. 313(a). The Trustee
also shall comply with TIA ss. 313(b), 313(c) and 313(d).
A copy of each report at the time of its mailing to
Noteholders shall be mailed to the Company and filed with the Commission and
each securities exchange, if any, on which the Notes are listed.
The Company shall notify the Trustee if the Notes become
listed on any securities exchange or of any delisting thereof.
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation for its services hereunder (which shall be agreed to from time to
time by the Company and the Trustee). 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 disbursements, expenses and
advances (including reasonable fees and expenses of counsel) incurred or made by
it in addition to the compensation for its services, except any such
disbursements, expenses and advances as may be attributable to the Trustee's
negligence or willful misconduct. Such expenses shall include the compensation,
disbursements and expenses of the Trustee's agents, accountants, experts and
counsel and any taxes or other expenses incurred by a trust created pursuant to
Section 8.01.
The Company shall indemnify the Trustee and each predecessor
trustee for, and hold it harmless against, any loss, liability, claim, damage or
expense, including taxes (other than taxes based upon, measured by or determined
by the income of the Trustee) incurred by the Trustee without negligence or
willful misconduct on its part arising out of or in connection with the
administration of this trust and its duties under this Indenture, including the
reasonable expenses and attorneys' fees of defending itself against any claim of
liability arising hereunder. The Trustee shall notify the Company promptly of
any claim asserted against the Trustee for which it may seek indemnity. However,
the failure by the Trustee to so notify the Company shall not relieve the
Company of its obligations hereunder unless and to the extent such failure
results
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in the forfeiture by the Company of material rights and defenses. The Company
shall defend the claim and the Trustee shall cooperate in the defense (and may
employ its own counsel) at the Company's expense. The Company need not reimburse
any expense or indemnify against any loss or liability incurred by the Trustee
as a result of the violation of this Indenture by the Trustee if such violation
arose from the Trustee's negligence or willful misconduct.
To secure the Company's payment obligations in this Section
7.07, the Trustee shall have a senior claim prior to the Notes against all money
or property held or collected by the Trustee, in its capacity as Trustee, except
money or property held in trust to pay principal of, premium, if any, or
interest on particular Notes.
When the Trustee incurs expenses or renders services after an
Event of Default specified in clauses (vii) or (viii) of Section 6.01 occurs,
the expenses (including the reasonable fees and expenses of its agents and
counsel) and the compensation for the services shall be preferred over the
status of the Holders in a proceeding under any Bankruptcy Law and are intended
to constitute expenses of administration under any Bankruptcy Law. The Company's
obligations under this Section 7.07 and any claim arising hereunder shall
survive the resignation or removal of any Trustee, the discharge of the
Company's obligations pursuant to Article Eight and any rejection or termination
under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign at any time by so notifying the Company
in writing. The Holders of a majority in principal amount of the outstanding
Notes may remove the Trustee by so notifying the Company and the Trustee in
writing and may appoint a successor trustee with the Company's consent. The
Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall notify each Holder in
writing of such event and shall appoint a successor Trustee within 60 days after
the effective date of such resignation, removal or vacancy. Within one year
after the successor Trustee takes office, the Holders of a majority in principal
amount of the Notes may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company and immediately
thereafter, (i) the retiring Trustee shall transfer, after payment of all sums
then owing to the Trustee pursuant to Section 7.07, all property held by it as
Trustee to the successor Trustee, subject to the Lien provided in Section 7.07,
(ii) the resignation or removal of the retiring Trustee shall become effective
and (iii) the
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successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. A successor Trustee shall mail notice of its succession to
each Noteholder.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in principal amount of the outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee; provided, however, that
such corporation shall be otherwise qualified and eligible under this Article
Seven.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA xx.xx. 310(a)(1) and 310(a)(5). The Trustee shall be a
commercial bank with trust powers or a trust company, which shall have (or, in
the case of a financial institution, commercial bank with trust powers or a
trust company included in a bank holding company system, the related bank
holding company shall have) a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual report of
condition, and subject to supervision or examination by federal or state
authorities, so long as any of the Notes are outstanding. The Trustee shall
comply with TIA ss. 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 ss. 310(b) (1) are met. The provisions of TIA ss. 310
shall apply to the Company, as obligors of the Notes.
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated. The
provisions of TIA ss. 311 shall apply to the Company, as obligor of the Notes.
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ARTICLE Eight
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option by Board Resolution, at any
time, with respect to the Notes, elect to have either paragraph (b) or paragraph
(c) below be applied to the outstanding Notes upon compliance with the
conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the
option applicable to this paragraph (b), the Company and each Subsidiary
Guarantor, if any, shall be deemed to have been released and discharged from its
obligations with respect to the outstanding Notes on the date the conditions set
forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose,
such Legal Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the outstanding Notes, which
shall thereafter be deemed to be "outstanding" only for the purposes of the
Sections and matters under this Indenture referred to in (i) and (ii) below, and
to have satisfied all of its other obligations under such Notes and this
Indenture insofar as such Notes are concerned, except for the following which
shall survive until otherwise terminated or discharged hereunder: (i) the rights
of Holders of outstanding Notes to receive solely from the trust fund described
m paragraph (d) below and as more fully set forth in such paragraph, payments in
respect of the principal of, premium, if any, and interest and Additional
Interest, if any, on such Notes when such payments are due, and (ii) obligations
listed in Section 8.03, subject to compliance with this Section 8.01. The
Company may exercise its option under this paragraph (b) notwithstanding the
prior exercise of its option under paragraph (c) below with respect to the
Notes.
(c) Upon the Company's exercise under paragraph (a) of the
option applicable to this paragraph (c), the Company and each Subsidiary
Guarantor, if any, shall be released and discharged from its obligations under
any covenant contained in Article Five and in Sections 4.03 through 4.17 with
respect to the outstanding Notes on and after the date the conditions set forth
below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall
thereafter be deemed to be not "outstanding" for the purpose of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder. For this purpose, such Covenant
Defeasance means that, with respect to the outstanding Notes, the Company and
its Restricted Subsidiaries, if any, may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under clause (iii)
or clause (iv) of Section 6.01, nor shall any event referred to in clauses (v)
or (vi) of Section 6.01 thereafter constitute a Default or an Event of Default
thereunder but, except as specified above, the remainder of this Indenture and
such Notes shall be unaffected thereby.
(d) The following shall be the conditions to application of
either paragraph (b) or paragraph (c) above to the outstanding Notes:
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(1) The Company shall have irrevocably deposited in trust with
the Trustee, pursuant to an irrevocable trust and security agreement
in form and substance satisfactory to the Trustee, U.S. Legal Tender
or direct non-callable obligations of, or non-callable obligations
guaranteed by, the United States of America for the payment of which
obligation or guarantee the full faith and credit of the United
States of America is pledged ("U.S. Government Obligations") maturing
as to principal and interest in such amounts and at such times as are
sufficient, without consideration of the reinvestment of such
interest and after payment of all Federal, state and local taxes or
other charges or assessments in respect thereof payable by the
Trustee, in the opinion of a nationally recognized investment bank or
firm of independent public accountants expressed in a written
certification thereof (in form and substance reasonably satisfactory
to the Trustee) delivered to the Trustee, to pay the principal of,
premium, if any, and interest and Additional Interest, if any, on all
the outstanding Notes on the dates on which any such payments are due
and payable in accordance with the terms of this Indenture and of the
Notes;
(2) Such deposit shall not cause the Trustee to have a
conflicting interest as defined in and for purposes of the TIA;
(3) The Trustee shall have received an Officers' Certificate
stating that no Default or Event of Default shall have occurred and
be continuing on the date of such deposit or, insofar as clauses
(vii) or (viii) of Section 6.01 are concerned, at any time during the
period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied
until the expiration of such period);
(4) The Trustee shall have received an Officers' Certificate
stating that such deposit will not result in a Default under this
Indenture or a breach or violation of, or constitute a default under,
any other material instrument or agreement to which the Company or
any of its Subsidiaries, if any, is a party or by which any of them
or their property is bound (and in that connection, the Trustee shall
have received a certificate from the agent under the Bank Facility to
that effect with respect to the Bank Facility then in effect),
(5) (i) In the event the Company elects paragraph (b) hereof,
the Company shall deliver to the Trustee an Opinion of Counsel in the
United States, in form and substance reasonably satisfactory to the
Trustee to the effect that (A) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling or
(B) since the Issue Date, 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 state that, Holders of the
Notes will not recognize income gain or loss for Federal income tax
purposes as a result of such deposit and the defeasance contemplated
hereby and will be subject to Federal income taxes in the same manner
and at the same times as would have been the case if such deposit and
defeasance had not occurred or (ii) in the event the Company elects
paragraph (c) hereof, the Company shall deliver to the Trustee an
Opinion of Counsel in the United States, in form and substance
reasonably satisfactory to the Trustee, to the effect that Holders of
the Notes will not recognize income, gain or loss
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for Federal income tax purposes as a result of such deposit and the
defeasance contemplated hereby and will be subject to Federal income
tax in the same amounts and in the same manner and at the same times
as would have been the case if such deposit and defeasance had not
occurred;
(6) The Trustee shall have received an Opinion of Counsel
stating that the deposit shall not result in the Company, the Trustee
or the trust becoming or being deemed to be an "investment company"
under the Investment Company Act of 1940;
(7) The Company shall have delivered to the Trustee an
Officer's Certificate, in form and substance reasonably satisfactory
to the Trustee, stating that the deposit under clause (1) was not
made by the Company with the intent of preferring the Holders over
any other creditors of the Company or any Subsidiary of the Company
or with the intent of defeating, hindering, delaying or defrauding
any other creditors of the Company, any Subsidiary of the Company or
others;
(8) The Company shall have delivered to the Trustee an Opinion
of Counsel, in form and substance reasonably satisfactory to the
Trustee, to the effect that assuming no intervening bankruptcy of the
Company between the date of deposit and the 91st day following the
deposit and that no Holder of Notes is an insider of the Company, (A)
the trust funds will not be subject to the rights of holders of
Indebtedness of the Company other than the Notes and (B) after the
passage of the 91st day following the deposit, the trust funds will
not be subject to any applicable bankruptcy, insolvency,
reorganization or similar law affecting creditors' rights generally;
and
(9) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent specified herein relating to the defeasance
contemplated by this Section 8.01 have been complied with; provided,
however, that no deposit under clause (1) above shall be effective to
terminate the obligations of the Company under the Notes or this
Indenture prior to 90 days following any such deposit.
In the event all or any portion of the Notes are to be
redeemed through such irrevocable trust, the Company must make arrangements
satisfactory to the Trustee, at the time of such deposit, for the giving of the
notice of such redemption or redemptions by the Trustee in the name and at the
expense of the Company.
SECTION 8.02. Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of
further effect (except as to surviving rights listed in Section 8.03 as to all
outstanding Notes when:
(1) either (a) all the Notes, theretofore authenticated and
delivered (except lost, stolen or destroyed Notes which have been
replaced or paid and Notes for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such
trust) have been delivered to the Trustee for cancellation or (b) all
Notes not theretofore delivered to the Trustee for cancellation have
become due and payable, or will become due and
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payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of
notice of redemption, and the Company has irrevocably deposited or
caused to be deposited with the Trustee funds or U.S. Government
Obligations in an amount sufficient to pay and discharge the entire
Indebtedness on the Notes not theretofore delivered to the Trustee
for cancellation, for principal of, premium, if any, and interest and
Additional Interest, if any, on the Notes to the earlier of the
stated maturity or the redemption date together with irrevocable
instructions from the Company directing the Trustee to apply such
funds and/or the proceeds of such U.S. Government Obligations to the
payment thereof at maturity or redemption, as the case may be;
(2) the Company has paid all other sums payable under this
Indenture by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent under this
Indenture relating to the satisfaction and discharge of this
Indenture have been complied with.
SECTION 8.03. Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of this
Indenture and of the Notes referred to in Section 8.01 or 8.02, the respective
obligations of the Company and the Trustee under Sections 2.03, 2.04, 2.05,
2.06, 2.07, 2.08, 2.11, 2.13, 2.14, 4.01, 4.02, 6.07, Article Seven, Sections
8.05, 8.06 and 8.07 shall survive until the Notes are no longer outstanding, and
thereafter the obligations of the Company and the Trustee under Sections 7.07,
8.05, 8.06 and 8.07 shall survive. Nothing contained in this Article Eight shall
abrogate any of the obligations or duties of the Trustee under this Indenture.
SECTION 8.04. Acknowledgment of Discharge by Trustee.
Subject to Section 8.07, after (i) the conditions of Section
8.01 or 8.02 have been satisfied, (ii) the Company has paid or caused to be paid
all other sums payable hereunder by the Company and (iii) the Company has
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent referred to in clause (i) above
relating to the satisfaction and discharge of this Indenture have been complied
with, the Trustee upon written request shall acknowledge in writing the
discharge of the Company's obligations under this Indenture except for those
surviving obligations specified in Section 8.03.
SECTION 8.05. Application of Trust Assets.
The Trustee shall hold any U. S. Legal Tender or U. S.
Government Obligations deposited with it pursuant to this Article Eight in the
irrevocable trust established pursuant to Section 8.01 or Section 8.02, as the
case may be. The Trustee shall apply the deposited U.S. Legal Tender or the U.
S. Government Obligations, together with earnings thereon, through the Paying
Agent, in accordance with this Indenture and the terms of the irrevocable trust
established pursuant to Section 8.01 or Section 8.02, as the case may be, to the
payment of principal of, premium, if any, and interest and Additional Interest,
if any, on the Notes. The U. S. Legal Tender or U. S. Government Obligations so
held in trust and deposited with the Trustee in
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compliance with Section 8.01 or Section 8.02 shall not be part of the trust
estate under this Indenture, but shall constitute a separate trust fund for the
benefit of all Holders entitled thereto.
SECTION 8.06. Repayment to the Company; Unclaimed Money.
Subject to Section 7.07, the Trustee shall promptly pay to the
Company, upon receipt by the Trustee of an Officers' Certificate, any excess
money, determined in accordance with Section 8.01 or Section 8.02, held by it at
any time. The Trustee and the Paying Agent shall pay to the Company upon receipt
by the Trustee or the Paying Agent, as the case may be, of an officers'
Certificate, any money held by it for the payment of principal of, premium, if
any, and interest and Additional Interest, if any, that remains unclaimed for
two years after payment to the Holders is required; provided, however, that the
Trustee and the Paying Agent before being required to make any payment may, but
are not required to, at the expense of the Company and within 10 days of receipt
of the Officers' Certificate described above, cause to be published once in a
newspaper of general circulation in the City of New York or mail to each Holder
entitled to such money notice that such money remains unclaimed and that after a
date specified therein, which shall be at least 30 days from the date of such
publication or mailing, any unclaimed balance of such money then remaining will
be repaid to the Company. After payment to the Company, Noteholders entitled to
money must look solely to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person, and all liability
of the Trustee or Paying Agent with respect to such money shall thereupon cease.
SECTION 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S.
Legal Tender or U.S. Government Obligations in accordance with this Indenture by
reason of any legal proceeding pending before or any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then and only then the Company's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
been made pursuant to this Indenture until such time as the Trustee is permitted
to apply all such U.S. Legal Tender or U.S. Government Obligations in accordance
with this Indenture; provided, however, that if the Company has made any payment
of principal of, premium, if any, and interest and Additional Interest, if any,
on any Notes because of the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Notes to receive such payment
from the U.S. Legal Tender or U.S. Government Obligations held by the Trustee or
Paying Agent.
ARTICLE Nine
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company and the Trustee, together, may amend or supplement
this Indenture or the Notes without notice to or consent of any Noteholder:
(1) to cure any ambiguity, defect or inconsistency;
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(2) to evidence the succession in accordance with Article Five
hereof of another Person to the Company and the assumption by any
such successor of the covenants of the Company herein and in the
Notes;
(3) to evidence the succession in accordance with Article Five
hereof of another Person to any Subsidiary Guarantor and the
assumption by such successor of the obligations of such Subsidiary
Guarantor herein;
(4) to provide for Subsidiary Guarantors;
(5) to evidence the release of any Subsidiary Guarantor in
accordance with Section 10.06;
(6) to evidence the appointment hereunder of a successor
Trustee hereunder;
(7) to secure the Notes in accordance with Section 4.13;
(8) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(9) to make any other change that does not, in the opinion of
the Trustee, adversely affect in any material respect the rights of
any Noteholders hereunder;
(10) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the TIA; or
(11) to make any change that would provide any additional
benefit or rights to the Noteholders or that does not adversely
affect the rights of any Noteholder;
provided, that (i) in the opinion of the Trustee, no such change or amendment
adversely affects the rights of any Holders in any material respect (and in
formulating its opinion, the Trustee is entitled to rely on such evidence as it
deems appropriate, including, without limitation, solely on an Opinion of
Counsel) and (ii) the Company has delivered to the Trustee an Opinion of Counsel
and an Officers' Certificate, each stating that such amendment or supplement
complies with the provisions of this Section 9.01.
SECTION 9.02. With Consent of Holders.
Subject to Section 6.07, the Company and the Trustee,
together, with the written consent of the Holder or Holders of at least a
majority in aggregate principal amount of the outstanding Notes, may amend or
supplement this Indenture or the Notes, without notice to any other Noteholders.
Subject to Section 6.07, the Holder or Holders of a majority in aggregate
principal amount of the outstanding Notes may waive compliance by the Company
with any provision of this Indenture or the Notes without notice to any other
Noteholder. Without the consent of each Noteholder affected, however, no
amendment, supplement or waiver, including a waiver pursuant to Section 6.04,
may:
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(1) reduce the amount of Notes whose Holders must consent to
an amendment, supplement or waiver;
(2) reduce the rate of or change or have the effect of
changing the time for payment of interest, including defaulted
interest, on any Notes;
(3) reduce the principal of or change or have the effect of
changing the fixed maturity of any Notes, or change the date on which
any Notes may be subject to redemption, or reduce the redemption
price therefor;
(4) make any Notes payable in money other than that stated in
the Notes;
(5) make any change in provisions of this Indenture entitling
each Holder to receive payment of principal of, premium, if any, and
interest and Additional Interest, if any, on such Note on or after
the due date thereof or to bring suit to enforce such payment, or
permitting Holders of a majority in principal amount of the Notes to
waive Defaults or Events of Default;
(6) make any changes in Section 6.04, 6.07 or this sentence of
this Section 9.02;
(7) amend, modify or change in any material respect the
obligation of the Company to make and consummate a Change of Control
Offer in respect of a Change of Control that has occurred or make and
consummate a Net Proceeds Offer with respect to any Asset Sale that
has been consummated.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amendment, supplement, waiver
or supplemental indenture.
SECTION 9.03. Compliance with TIA.
From the date on which this Indenture is qualified under the
TIA, every amendment, waiver or supplement of this Indenture or the Notes shall
comply with the TIA as then in effect, such compliance to be evidenced by an
Opinion of Counsel.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke
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the consent as to his Note or portion of his Note by notice to the Trustee or
the Company received before the date on which the Trustee receives an Officers'
Certificate certifying that the Holders of the requisite principal amount of
Notes have consented (and not theretofore revoked such consent) to the
amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then notwithstanding
the last sentence of the immediately preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to revoke any consent previously given, whether or
not such Persons continue to be Holders after such record date. No such consent
shall be valid or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Noteholder, unless it makes a change described in any of
clauses (1) through (7) of Section 9.02, in which case, the amendment,
supplement or waiver shall bind only each Holder of a Note who has consented to
it and every subsequent Holder of a Note or portion of a Note that evidences the
same debt as the consenting Holder's Note; provided that any such waiver shall
not impair or affect the right of any Holder to receive payment of principal of,
premium, if any, and interest and Additional Interest, if any, on a Note, on or
after the respective due dates expressed in such Note, or to bring suit for the
enforcement of any such payment on or after such respective dates without the
consent of such Holder.
SECTION 9.05. Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a
Note, the Company may require the Holder of the Note to deliver it to the
Trustee. The Company may place an appropriate notation on the Note about the
changed terms and return it to the Holder. Alternatively, if the Company or the
Trustee so determines, the Company in exchange for the Note shall issue and the
Trustee shall authenticate a new Note that reflects the changed terms.
SECTION 9.06. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; provided that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture. Such Opinion of Counsel shall be at the expense of the Company.
SECTION 9.07. Payment for Consent.
Neither the Company nor any of its Subsidiaries, if any,
shall, directly or indirectly, pay or cause to be paid any consideration,
whether by way of interest, fee or otherwise, to any Holder of any Notes for or
as an inducement to any consent, waiver or amendment of any terms or provisions
of the Notes, unless' such consideration is offered to be
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paid or agreed to be paid to all Holders of the Notes which so consent, waive or
agree to amend in the time frame set forth in the solicitation documents
relating to such consent, waiver or agreement.
ARTICLE Ten
GUARANTEES; RELEASE OF GUARANTEES
SECTION 10.01. Guarantees.
(a) Each Subsidiary Guarantor hereby unconditionally and
irrevocably, jointly and severally with any other Subsidiary Guarantors,
guarantees on a senior, unsecured basis to each Holder and to the Trustee and
its successors and assigns (a) the full and punctual payment of principal of,
premium, if any, interest and Additional Interest, if any, on the Notes when
due, whether at maturity, by acceleration, by redemption or otherwise, and all
expenses and indemnification and other monetary obligations of the Company under
this Indenture and the Notes and (b) the full and punctual performance within
applicable grace periods of all other obligations of the Company under this
Indenture and the Notes (all the foregoing being hereinafter collectively called
the "Obligations"). Each Subsidiary Guarantor hereby further agrees that the
Obligations may be extended or renewed, in whole or in part, without notice or
further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor
will remain bound under this Article Ten notwithstanding any extension or
renewal of any Obligation.
(b) Each Subsidiary Guarantor hereby waives presentation to,
demand of, payment from and protest to the Company of any of the Obligations and
also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives
notice of any default under the Notes or the Obligations. The obligations of
each Subsidiary 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
Notes or any other agreement or otherwise; (b) any extension or renewal of any
thereof, (c) any rescission, waiver, amendment or modification of any of the
terms or provisions of this Indenture, the Notes or any other agreement; (d) the
release of any security held by any Holder or the Trustee for the Obligations or
any of them; (e) the failure of any Holder or Trustee to exercise any right or
the Obligations; or (f) subject to Section 10.06, any change in the ownership of
any Subsidiary Guarantor.
(c) Each Subsidiary Guarantor hereby further agrees that its
Guarantee herein constitutes a guarantee of payment, 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 Obligations.
(d) The obligations of each Subsidiary 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 Obligations or otherwise. Without limiting the
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generality of the foregoing, the obligations of each Subsidiary 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 Notes 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 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 each Subsidiary Guarantor or would
otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law
or equity.
(e) Each Subsidiary Guarantor hereby further agrees that its
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, premium, if
any, or interest or Additional Interest, if any, on any Obligation is rescinded
or must otherwise be restored by any Holder or the Trustee upon the bankruptcy
or reorganization of the Company or otherwise.
(f) 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 Subsidiary Guarantor by virtue hereof, upon the failure of the Company to
pay the principal of, premium, if any or interest or Additional Interest, if
any, on any 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 Obligation, each Subsidiary Guarantor promises to and will, 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
amount of such Obligations, (ii) accrued and unpaid interest on such Obligations
(but only to the extent not prohibited by law) and (iii) all other monetary
Obligations of the Company to the Holders and the Trustee.
(g) Each Subsidiary Guarantor hereby 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 Obligations guaranteed hereby may be accelerated as
provided in Article Six for the purposes of such Subsidiary Guarantor's
Guarantee herein, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the Obligations guaranteed hereby,
and (y) in the event of any declaration of acceleration of such Obligations as
provided in Article Six, such Obligations (whether or not due and payable) shall
forthwith become due and payable by such Subsidiary Guarantor for the purposes
of this Section 10.01.
(h) Each Subsidiary Guarantor also agrees to pay on a senior
unsecured basis and in addition to the amounts stated in clause (a) of Section
10.01 any and all expenses (including reasonable counsel's fees and expenses)
incurred by the Trustee in enforcing against such Subsidiary Guarantor any
rights under this Section 10.01.
SECTION 10.02. Successors and Assigns.
This Article Ten shall be binding upon each Subsidiary
Guarantor and its successors and assigns and shall remain in full effect and
force until payment in full of all the Obligations or until released under
Section 10.06.
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SECTION 10.03. 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 Ten 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 Ten at law, in
equity, by statute or otherwise.
SECTION 10.04. Modification.
No modification, amendment or waiver of any provision of this
Article Ten, nor the consent to any departure by any Subsidiary 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 it is given. No
notice to or demand on any Subsidiary Guarantor in any case shall entitle such
Subsidiary Guarantor to any other or further notice or demand in the same,
similar or other circumstances.
SECTION 10.05. Limitation of Subsidiary Guarantor's Liability.
It is the intention of all parties that the Guarantee of each
Subsidiary Guarantor not constitute a fraudulent transfer or conveyance for
purposes of the Bankruptcy Law, federal and state fraudulent conveyance laws or
any similar federal, state or foreign law. To effectuate the foregoing
intention, it is agreed that the obligations of each Subsidiary Guarantor under
this Article Ten shall be limited to the maximum amount as will, after giving
effect to all other contingent and fixed liabilities of such Subsidiary
Guarantor and after giving effect to any collections from or payments made by or
on behalf of any other Subsidiary Guarantor in respect of the obligations of
such other Subsidiary Guarantor under this Article Ten, result in the
obligations of such Subsidiary Guarantor under its Guarantee not constituting a
fraudulent transfer or conveyance under applicable federal, state or foreign
law.
SECTION 10.06. Release of Guarantees.
(a) In the event of a disposition of all of the assets or all
of the Capital Stock of any Subsidiary Guarantor, by way of sale, merger,
consolidation or otherwise, such Subsidiary Guarantor in the event of a
disposition of all of the Capital Stock or all of the assets of such Subsidiary
Guarantor or the surviving entity (whether or not such Subsidiary Guarantor) in
the event of a merger or consolidation will be deemed released and relieved of
its obligations under its Guarantee and this Indenture without any further
action required on the part of the Trustee or any Holder and the Person
acquiring or owning the assets or Capital Stock of such Subsidiary Guarantor (if
not otherwise required to be a Subsidiary Guarantor pursuant to the provisions
of Section 4.17) will not be required to enter into a Guarantee; provide in each
case, that such transaction is carried out pursuant to and in accordance with
Section 4.15 and, if applicable, Section 5.01.
(b) If a Subsidiary Guarantor becomes an Unrestricted
Subsidiary, it will be deemed released and relieved of its obligations under its
Guarantee and this Indenture without any further action required on the part of
the Trustee or any Holder.
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(c) A non-Wholly Owned Restricted Subsidiary that is a
Subsidiary Guarantor solely by reason of its guarantee of other Indebtedness of
the Company or a Subsidiary Guarantor will be deemed released and relieved of
its obligations under its Guarantee and this Indenture without any further
action required on the part of the Trustee or any Holder if it is released and
relieved of its guarantee of such other Indebtedness and such Subsidiary
Guarantor gives written notice to the Trustee of its election to be so released.
Upon delivery by the Company to the Trustee of an Officers'
Certificate and Opinion of Counsel, to the effect that a Subsidiary Guarantor
has been deemed released from its obligations under its Guarantee and this
Indenture pursuant to this Section 10.06, the Trustee shall execute any
documents reasonably requested by the Company or such Subsidiary Guarantor in
order to evidence the release of such Subsidiary Guarantor from its obligations
under its Guarantee and this Indenture.
ARTICLE Eleven
MISCELLANEOUS
SECTION 11.01. TIA Controls.
If any provision of this Indenture limits, qualifies, or
conflicts with the duties imposed by operation of Section 318(c) of the TIA, the
imposed duties shall control.
SECTION 11.02. Notices.
Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made by hand
delivery, by telecopier or registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
if to the Company or any Subsidiary Guarantor:
Diamond Triumph Auto Glass, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with copies to:
Green Equity Investors II, L.P.
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Annick
Facsimile: (000) 000-0000
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Kramer, Levin, Naftalis & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
if to the Trustee:
State Street Bank and Trust Company
Xxxxxxx Square
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Department
Facsimile: (000) 000-0000
Each of the Company and the Trustee by written notice to each
other such Person may designate additional or different addresses for notices to
such Person. Any notice or communication to the Company and the Trustee shall be
deemed to have been given or made as of the date so delivered if personally
delivered; when answered back, if telexed; when receipt is acknowledged, if
telecopied; and five (5) calendar days after mailing if sent by registered or
certified mail, postage prepaid (except that, notwithstanding the foregoing, a
notice of change of address shall not be deemed to have been given until
actually received by the addressee).
Any notice or communication mailed to a Noteholder shall be
mailed to him by first class mail or other equivalent means at his address as it
appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or
any defect in it shall not affect its sufficiency with respect to other
Noteholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 11.03. Communications by Holders with Other Holders.
Noteholders may communicate pursuant to TIA ss. 312(b) with
other Noteholders with respect to their rights under this Indenture or the
Notes. The Company, the Trustee, the Registrar and any other Person shall have
the protection of TIA ss. 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee
to take any action the Company shall furnish to the Trustee at the request of
the Trustee:
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(1) an Officers' Certificate, in form and substance reasonably
satisfactory to the Trustee, stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with;
and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.08, shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition and the definitions
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each
such Person, such condition or covenant has been complied with;
provided, however, that with respect to matters of fact an Opinion of
Counsel may rely on an Officers' Certificate or certificates of
public officials.
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee, Paying Agent or Registrar may make reasonable
rules for its functions.
SECTION 11.07. Legal Holidays.
If a payment date is not a Business Day, payment may be made
on the next succeeding day that is a Business Day, and no interest shall accrue
for the intervening period.
SECTION 11.08. Governing Law.
(a) THIS INDENTURE AND THE NOTES 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 LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
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(b) Each of the Company and the future Subsidiary Guarantors,
if any, hereby (i) agrees or will agree, as the case may be, that any suit,
action or proceeding against it arising out of or relating to this Indenture or
the Notes, as the case may be, may be instituted in any Federal or state court
sitting in The City of New York, (ii) waives or will waive, as the case may be,
to the extent permitted by applicable law, any objection which it may now or
hereafter have to the laying of venue of any such suit, action or proceeding,
and any claim that any suit, action or proceeding in such a court has been
brought in an inconvenient forum, (iii) irrevocably submits or will submit, as
the case may be, to the non-exclusive jurisdiction of such courts in any suit,
action or proceeding, (iv) agrees or will agree, as the case may be, that final
judgment in any such suit, action or proceeding brought in such a court shall be
conclusive and binding upon each and may be enforced in the courts of the
jurisdiction of which each is subject, respectively, by a suit upon judgment,
(v) agrees or will agree, as the case may be, that service of process by mail to
the addressed specified in Section 11.02 hereof shall constitute personal
service of such process on it in any such suit, action or proceeding.
SECTION 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.10. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as
such, of the Company or of any Subsidiary Guarantor shall not have any liability
for any obligations of the Company or of such Subsidiary Guarantor under the
Notes, the Guarantees, or this Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation. Each Noteholder by
accepting a Note waives and releases all such liability. Such waiver and release
are part of the consideration for the issuance of the Notes.
SECTION 11.11. Successors.
All agreements of the Company in this Indenture and the Notes
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 11.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture.
Each signed copy or counterpart shall be an original, but all of them together
shall represent the same agreement.
SECTION 11.13. Severability.
In case any one or more of the provisions in this Indenture or
in the Notes shall be held invalid, illegal or unenforceable, in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
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SECTION 11.14. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first written above.
THE COMPANY:
DIAMOND TRIUMPH
AUTO GLASS, INC.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Co-Chief Executive Officer
THE TRUSTEE:
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxxxx Xxxx, Xx.
--------------------------------------
Name: Xxxxxxx Xxxx, Xx.
Title: Vice President
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