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EXHIBIT 4.1
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INDENTURE
Dated as of April 1, 1997
Among
TEKNI-PLEX, INC.,
DOLCO PACKAGING CORP.
and
MARINE MIDLAND BANK, Trustee
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$150,000,000
11 1/4% Senior Subordinated Notes due 2007
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CROSS-REFERENCE TABLE
Indenture
Trust Indenture Act Section Section
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Section 310(a)(1).......................................................... 7.10
(a)(2).......................................................... 7.10
(a)(3).......................................................... N.A.
(a)(4).......................................................... N.A.
(a)(5).......................................................... N.A.
(b)............................................................. 7.08; 7.10; 13.02
(c)............................................................. N.A.
Section 311(a)............................................................. 7.11
(b)............................................................. 7.11
(c)............................................................. N.A.
Section 312(a)............................................................. 2.05
(b)............................................................. 13.03
(c)............................................................. 13.03
Section 313(a)............................................................. 7.06
(b)(1).......................................................... N.A.
(b)(2).......................................................... 7.06
(c)............................................................. 7.06; 13.02
(d)............................................................. 7.06
Section 314(a)............................................................. 4.11; 4.12; 13.02
(b)............................................................. N.A.
(c)(1).......................................................... 13.04
(c)(2).......................................................... 13.04
(c)(3).......................................................... N.A.
(d)............................................................. N.A.
(e)............................................................. 13.05
(f)............................................................. N.A.
Section 315(a)............................................................. 7.01(b)
(b)............................................................. 7.05; 13.02
(c)............................................................. 7.01(a)
(d)............................................................. 7.01(c)
(e)............................................................. 6.11
Section 316(a)(last sentence).............................................. 2.09
(a)(1)(A)....................................................... 6.05
(a)(1)(B)....................................................... 6.04
(a)(2).......................................................... N.A.
(b)............................................................. 6.07
(c)............................................................. 10.04
Section 317(a)(1).......................................................... 6.08
(a)(2).......................................................... 6.09
(b)............................................................. 2.04
Section 318(a)............................................................. 13.01
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N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to
be a part of this Indenture.
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TABLE OF CONTENTS
Page
ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions......................................................1
SECTION 1.02. Other Definitions...............................................21
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act.................................................21
ARTICLE TWO THE SECURITIES
SECTION 2.01. Form and Dating.................................................22
SECTION 2.02. Execution and Authentication....................................24
SECTION 2.03. Registrar and Paying Agent......................................25
SECTION 2.04. Paying Agent To Hold Money in Trust.............................26
SECTION 2.05. Securityholder Lists............................................26
SECTION 2.06. Transfer and Exchange...........................................26
SECTION 2.07. Replacement Securities..........................................37
SECTION 2.08. Outstanding Securities..........................................37
SECTION 2.09. Treasury Securities.............................................37
SECTION 2.10. Temporary Securities............................................38
SECTION 2.11. Cancellation....................................................38
SECTION 2.12. Defaulted Interest..............................................38
SECTION 2.13. CUSIP or CINS Number............................................39
SECTION 2.14. Payments of Interest............................................39
ARTICLE THREE REDEMPTION
SECTION 3.01. Notices to Trustee..............................................40
SECTION 3.02. Selection of Securities To Be Redeemed..........................40
SECTION 3.03. Notice of Redemption............................................41
SECTION 3.04. Effect of Notice of Redemption..................................42
SECTION 3.05. Deposit of Redemption Price.....................................42
SECTION 3.06. Securities Redeemed in Part.....................................42
ARTICLE FOUR COVENANTS
SECTION 4.01. Payment of Securities...........................................43
SECTION 4.02. Maintenance of Office or Agency.................................43
SECTION 4.03. Limitation on Transactions with Affiliates and
Restated Persons).............................................................44
SECTION 4.04. Limitation on Indebtedness......................................44
SECTION 4.05. Limitation on Certain Asset Dispositions........................47
SECTION 4.06. Limitation on Restricted Payments...............................48
SECTION 4.07. Corporate Existence.............................................52
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SECTION 4.08. Payment of Taxes and Other Claims...............................52
SECTION 4.09. Notice of Defaults..............................................52
SECTION 4.10. Maintenance of Properties.......................................53
SECTION 4.11. Compliance Certificate..........................................53
SECTION 4.12. Provision of Financial Information..............................54
SECTION 4.13. Waiver of Stay, Extension or Usury
Laws...........................................................54
SECTION 4.14. Change of Control...............................................55
SECTION 4.15. Limitation on Senior Subordinated
Indebtedness..................................................56
SECTION 4.16. Limitations Concerning Distributions
and Transfers by Restricted
Subsidiaries...................................................56
SECTION 4.17. Limitation on Issuance and Sale of
Capital Stock of Restricted
Subsidiaries...................................................57
SECTION 4.18. Limitation on Liens.............................................58
SECTION 4.19. Future Guarantors...............................................60
ARTICLE FIVE MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Restriction on Mergers,
Consolidations and Certain Sales of Assets....................60
SECTION 5.02. Successor Corporation Substituted...............................61
ARTICLE SIX DEFAULT AND REMEDIES
SECTION 6.01. Events of Default...............................................62
SECTION 6.02. Acceleration....................................................64
SECTION 6.03. Other Remedies..................................................65
SECTION 6.04. Waiver of Past Default..........................................65
SECTION 6.05. Control by Majority.............................................66
SECTION 6.06. Limitation on Suits.............................................66
SECTION 6.07. Rights of Holders To Receive Payment............................67
SECTION 6.08. Collection Suit by Trustee......................................67
SECTION 6.09. Trustee May File Proofs of Claim................................67
SECTION 6.10. Priorities......................................................68
SECTION 6.11. Undertaking for Costs...........................................68
ARTICLE SEVEN TRUSTEE
SECTION 7.01. Duties of Trustee...............................................69
SECTION 7.02. Rights of Trustee...............................................70
SECTION 7.03. Individual Rights of Trustee....................................71
SECTION 7.04. Trustee's Disclaimer............................................71
SECTION 7.05. Notice of Defaults..............................................72
SECTION 7.06. Reports by Trustee to Holders...................................72
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SECTION 7.07. Compensation and Indemnity......................................72
SECTION 7.08. Replacement of Trustee..........................................74
SECTION 7.09. Successor Trustee by Merger, etc................................75
SECTION 7.10. Eligibility; Disqualification...................................75
SECTION 7.11. Preferential Collection of Claims Against Company...............76
ARTICLE EIGHT SUBORDINATION OF SECURITIES
SECTION 8.01. Securities Subordinated to Senior
Debt...........................................................76
SECTION 8.02. No Payment on Securities in Certain
Circumstances..................................................76
SECTION 8.03. Payment Over of Proceeds upon
Dissolution, etc...............................................78
SECTION 8.04. Subrogation.....................................................79
SECTION 8.05. Obligations of Company Unconditional............................80
SECTION 8.06. Notice to Trustee...............................................80
SECTION 8.07. Reliance on Judicial Order or
Certificate of Liquidating Agent..............................82
SECTION 8.08. Trustee's Relation to Senior Debt...............................82
SECTION 8.09. Subordination Rights Not Impaired by
Acts or Omissions of the Company or
Holders of Senior Debt........................................82
SECTION 8.10. Securityholders Authorize Trustee To
Effectuate Subordination of
Securities....................................................83
SECTION 8.11. This Article Not To Prevent Events of
Default.......................................................83
SECTION 8.12. Trustee's Compensation Not
Prejudiced....................................................83
SECTION 8.13. No Waiver of Subordination
Provisions....................................................83
SECTION 8.14. Subordination Provisions Not
Applicable to Money Held in Trust for
Securityholders; Payments May
Be Paid Prior to Dissolution..................................84
SECTION 8.15. Acceleration of Securities......................................84
ARTICLE NINE DISCHARGE OF INDENTURE
SECTION 9.01. Termination of Company's Obligations............................84
SECTION 9.02. Conditions Precedent to Termination.............................85
SECTION 9.03. Survival of Certain Obligations of..............................86
SECTION 9.04. Trustee's Obligations upon Termination..........................87
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ARTICLE TEN AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders.....................................88
SECTION 10.02. With Consent of Holders........................................89
SECTION 10.03. Compliance with Trust Indenture Act............................90
SECTION 10.04. Revocation and Effect of Consents..............................90
SECTION 10.05. Notation on or Exchange of
Securities....................................................91
SECTION 10.06. Trustee To Sign Amendments, etc................................92
ARTICLE ELEVEN GUARANTEE
SECTION 11.01. Unconditional Guarantee........................................92
SECTION 11.02. Severability...................................................93
SECTION 11.03. Release of a Guarantor.........................................93
SECTION 11.04. Limitation of Guarantor's Liability............................94
SECTION 11.05. Contribution...................................................94
SECTION 11.06. Execution of Guarantee.........................................95
SECTION 11.07. Subordination of Subrogation and Other Rights..................95
ARTICLE TWELVE SUBORDINATION OF GUARANTEE
SECTION 12.01. Guarantee Obligations Subordinated
to Senior Debt of Guarantor...................................96
SECTION 12.02. No Payment on Guarantees in Certain
Circumstances.................................................96
SECTION 12.03. Payment Over of Proceeds upon
Dissolution, etc..............................................98
SECTION 12.04. Subrogation....................................................99
SECTION 12.05. Obligations of Guarantors
Unconditional................................................100
SECTION 12.06. Notice to Trustee.............................................100
SECTION 12.07. Reliance on Judicial Order or
Certificate of Liquidating Agent.............................102
SECTION 12.08. Trustee's Relation to Senior Debt
of Guarantors................................................102
SECTION 12.09. Subordination Rights Not Impaired by
Acts or Omissions of the Guarantors
or Holders of Senior Debt of
Guarantors...................................................102
SECTION 12.10. Securityholders Authorize Trustee To
Effectuate Subordination of
Guarantee....................................................103
SECTION 12.11. This Article Not To Prevent Events
of Default...................................................103
SECTION 12.12. Trustee's Compensation Not
Prejudiced...................................................103
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SECTION 12.13. No Waiver of Guarantee Subordination
Provisions...................................................103
SECTION 12.14. Payments May Be Paid Prior to
Dissolution..................................................104
ARTICLE THIRTEEN MISCELLANEOUS
SECTION 13.01. Trust Indenture Act Controls..................................104
SECTION 13.02. Notices.......................................................105
SECTION 13.03. Communications by Holders with
Other Holders...............................................106
SECTION 13.04. Certificate and Opinion as to
Conditions Precedent........................................106
SECTION 13.05. Statements Required in Certificate
or Opinion..................................................107
SECTION 13.06. Rules by Trustee, Paying Agent,
Registrar...................................................107
SECTION 13.07. Governing Law.................................................107
SECTION 13.08. No Recourse Against Others....................................107
SECTION 13.09. Successors....................................................108
SECTION 13.10. Count`erpart Originals........................................108
SECTION 13.11. Severability..................................................108
SECTION 13.12. No Adverse Interpretation of Other Agreements.................108
SECTION 13.13. Legal Holidays................................................108
SIGNATURES
EXHIBIT A - Form of Security.................................................A-1
EXHIBIT B - Form of Certificate of Transfer..................................B-1
EXHIBIT C - Form of Certificate of Exchange..................................C-1
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XXXXXXXXX dated as of April 1, 1997, among TEKNI-PLEX, INC. a
Delaware corporation (the "Company"), DOLCO PACKAGING CORP., a Delaware
corporation, and MARINE MIDLAND BANK, a banking corporation and trust company
organized under the laws of the State of New York, as trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of the
other parties and for the equal and ratable benefit of the Holders of the
Company's 11 1/4% Senior Subordinated Notes due 2007:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means, with respect to any Person,
Indebtedness of such Person (i) existing at the time such Person becomes a
Restricted Subsidiary or (ii) assumed in connection with the acquisition of
assets from another Person, including Indebtedness Incurred in connection with,
or in contemplation of, such Person becoming a Restricted Subsidiary or such
acquisition, as the case may be.
"Additional Interest" shall have the meaning set forth in the
Registration Rights Agreement.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with any specified Person. For purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or co-Registrar. See
Section 2.03.
"Applicable Procedures" means with respect to any transfer or
exchange of interests in a Global Security, the rules and procedures of DTC,
Euroclear or Cedel that apply to such transfer or exchange.
"Asset Disposition" means any sale, transfer or other
disposition (including, without limitation, by merger, xxxxxxx-
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dation or sale-and-leaseback transaction) of (i) shares of Capital Stock of a
Subsidiary of the Company (other than directors' qualifying shares) or (ii)
property or assets of the Company or any Restricted Subsidiary of the Company
other than in the ordinary course of business; provided, however, that an Asset
Disposition shall not include (a) any sale, transfer or other disposition of
shares of Capital Stock, property or assets by a Restricted Subsidiary of the
Company to the Company or to any Wholly Owned Subsidiary of the Company, (b) any
sale, transfer or other disposition of defaulted receivables for collection or
any sale, transfer or other disposition of property or assets in the ordinary
course of business, (c) any isolated sale, transfer or other disposition that
does not involve aggregate consideration in excess of $1.0 million individually,
(d) the grant in the ordinary course of business of any non-exclusive license of
patents, trademarks, registrations therefor and other similar intellectual
property, (e) any Lien (or foreclosure thereon) securing Indebtedness to the
extent that such Lien is granted in compliance with Section 4.18, (f) any
Restricted Payment permitted by Section 4.06, (g) any disposition of assets or
property in the ordinary course of business to the extent such property or
assets are obsolete, worn-out or no longer useful in the Company's or any of its
Restricted Subsidiaries' business, (h) the sale, lease, conveyance or
disposition or other transfer of all or substantially all of the assets of the
Company as permitted under Section 5.01; provided, that the assets not so sold,
leased, conveyed, disposed of or otherwise transferred shall be deemed an Asset
Disposition, or (i) any disposition that constitutes a Change of Control.
"Average Life" means, as of the date of determination, with
respect to any Indebtedness for borrowed money or Preferred Stock, the quotient
obtained by dividing (i) the sum of the products of the number of years from the
date of determination to the dates of each successive scheduled principal or
liquidation value payments of such Indebtedness or Preferred Stock,
respectively, and the amount of such principal or liquidation value payments, by
(ii) the sum of all such principal or liquidation value payments.
"Board of Directors" means the Board of Directors of the
Company or any Guarantor, as the case may be, or any authorized committee of
that Board.
"Board Resolution" means, with respect to any Person, a duly
adopted resolution of the Board of Directors of such
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Person and, if applicable, certified and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in the City of New
York are authorized or obligated by law, resolution or executive order to close.
"Capital Lease Obligations" of any Person means the
obligations to pay rent or other amounts under a lease of (or other Indebtedness
arrangements conveying the right to use) real or personal property of such
Person which are required to be classified and accounted for as a capital lease
or liability on the face of a balance sheet of such Person in accordance with
GAAP. The amount of such obligations shall be the capitalized amount thereof in
accordance with GAAP and the stated maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however designated) of corporate
stock of such Person.
"Cedel" means Cedel Bank, societe anonyme.
"Common Stock" of any Person means Capital Stock of such
Person that does not rank prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Capital Stock of any
other class of such Person.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
Vice Chairman of the Board, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Consolidated Cash Flow Available for Fixed Charges" of any
Person means for any period the Consolidated Net Income
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of such Person for such period increased (to the extent Consolidated Net Income
for such period has been reduced thereby) by the sum of (without duplication)
(i) Consolidated Interest Expense of such Person for such period, plus (ii)
Consolidated Income Tax Expense of such Person for such period, plus (iii) the
consolidated depreciation and amortization expense included in the income
statement of such Person prepared in accordance with GAAP for such period, plus
(iv) any other non-cash charges to the extent deducted from or reflected in
Consolidated Net Income except for any non-cash charges that represent accruals
of, or reserves for, cash disbursements to be made in any future accounting
period.
"Consolidated Cash Flow Ratio" of any Person means for any
period the ratio of (i) Consolidated Cash Flow Available for Fixed Charges of
such Person for such period to (ii) the sum of (A) Consolidated Interest Expense
of such Person for such period, plus (B) the annual interest expense with
respect to any Indebtedness proposed to be Incurred by such Person or its
Restricted Subsidiaries, minus (C) Consolidated Interest Expense of such Person
to the extent included in clause (ii)(A) with respect to any Indebtedness that
will no longer be outstanding as a result of the Incurrence of the Indebtedness
proposed to be Incurred, plus (D) the annual interest expense with respect to
any other Indebtedness Incurred by such Person or its Restricted Subsidiaries
since the end of such period to the extent not included in clause (ii)(A), minus
(E) Consolidated Interest Expense of such Person to the extent included in
clause (ii)(A) with respect to any Indebtedness that no longer is outstanding as
a result of the Incurrence of the Indebtedness referred to in clause (ii)(D);
provided, however, that in making such computation, the Consolidated Interest
Expense of such Person attributable to interest on any Indebtedness bearing a
floating interest rate shall be computed on a pro forma basis as if the rate in
effect on the date of computation (after giving effect to any hedge in respect
of such Indebtedness that will, by its terms, remain in effect until the earlier
of the maturity of such Indebtedness or the date one year after the date of such
determination) had been the applicable rate for the entire period; provided,
further, however, that, in the event such Person or any of its Restricted
Subsidiaries has made any Asset Dispositions or acquisitions of assets not in
the ordinary course of business (including acquisitions of other Persons by
merger, consolidation or purchase of Capital Stock) during or after such period
and on or prior to the date of measurement, such computation shall be made on a
pro forma basis as if the Asset Dispositions or acquisitions had taken place on
the first day of such period. Calculations of pro
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forma amounts in accordance with this definition shall be done in accordance
with Article 11 of Regulation S-X under the Securities Act or any successor
provision and may include reasonably ascertainable cost savings.
"Consolidated Income Tax Expense" of any Person means for any
period the consolidated provision for income taxes of such Person and its
Restricted Subsidiaries for such period calculated on a consolidated basis in
accordance with GAAP.
"Consolidated Interest Expense" for any Person means for any
period, without duplication, (a) the consolidated interest expense included in a
consolidated income statement (without deduction of interest or finance charge
income) of such Person and its Restricted Subsidiaries for such period
calculated on a consolidated basis in accordance with GAAP and (b) dividend
requirements of such Person and its Restricted Subsidiaries with respect to
Disqualified Stock and with respect to all other Preferred Stock of Restricted
Subsidiaries of such Person (in each case whether in cash or otherwise (except
dividends payable solely in shares of Capital Stock of such Person or such
Restricted Subsidiary)) paid, accrued or accumulated during such period times a
fraction the numerator of which is one and the denominator of which is one minus
the then effective consolidated Federal, state and local tax rate of such
Person, expressed as a decimal.
"Consolidated Net Income" of any Person means for any period
the consolidated net income (or loss) of such Person and its Restricted
Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP; provided, however, that there shall be excluded therefrom (a) the net
income (or loss) of any Person acquired by such Person or a Restricted
Subsidiary of such Person in a pooling-of-interests transaction for any period
prior to the date of such transaction, (b) the net income (but not net loss) of
any Restricted Subsidiary of such Person which is subject to restrictions which
prevent or limit the payment of dividends or the making of distributions to such
Person to the extent of such restrictions (regardless of any waiver thereof),
(c) non-cash gains and losses due solely to fluctuations in currency values, (d)
the net income of any Person that is not a Restricted Subsidiary of such Person,
except to the extent of the amount of dividends or other distributions
representing such Person's proportionate share of such other Person's net income
for such period actually paid in cash to such Person by such other Person during
such period, (e) gains but not losses on Asset Dispositions by such Person or
its Restricted Subsidiaries, (f) all extraordinary gains and
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losses determined in accordance with GAAP and (g) in the case of a successor to
the referent Person by consolidation or merger or as a transferee of the
referent Person's assets, any earnings (or losses) of the successor corporation
prior to such consolidation, merger or transfer of assets.
"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.
"Continuing Director" means a director who either was a member
of the Board of Directors of the Company on the Issue Date or who became a
director of the Company subsequent to the Issue Date and whose election, or
nomination for election by the Company's stockholders, was duly approved by a
majority of the Continuing Directors then on the Board of Directors of the
Company, either by a specific vote or by approval of the proxy statement issued
by the Company on behalf of the entire Board of Directors of the Company in
which such individual is named as nominee for director.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 13.02 or such other address as the
Trustee may give notice to the Company.
"Credit Agreement" means the Credit Agreement among the
Company as borrower thereunder, and Xxxxxx Guaranty Trust Company of New York,
as agent on behalf of itself and the others named therein, and any deferrals,
renewals, extensions, replacements, refinancings or refundings thereof, or
amendments, modifications or supplements thereto or replacements thereof
(including, without limitation, any amendment increasing the amount borrowed
thereunder) and any agreement providing therefor whether by or with the same or
any other lender, creditors or group of creditors and including related notes,
guarantee agreements, security agreements and other instruments and agreements
executed in connection therewith.
"Default" means any event that is, or after notice or lapse of
time or both would become, an Event of Default.
"Designated Senior Debt" means (i) so long as the Credit
Agreement is in effect, the Senior Debt incurred thereunder and (ii) thereafter,
any other Senior Debt which has at the time of initial issuance an aggregate
outstanding principal amount in excess of $25.0 million which has been so
designated
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as Designated Senior Debt by the Board of Directors of the Company at the time
of initial issuance in a resolution certified pursuant to an Officers'
Certificate and delivered to the Trustee.
"Disqualified Stock" of any Person means any Capital Stock of
such Person which, by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof,
in whole or in part, on or prior to the final maturity of the Securities.
"Domestic Restricted Subsidiary" means any Restricted
Subsidiary of the Company organized and existing under the laws of the United
States, any state thereof or the District of Columbia.
"DTC" means The Depository Trust Company or its successors.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York
(Brussels Office) as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the Commission thereunder.
"Exchange Registration Statement" shall have the meaning set
forth in the Registration Rights Agreement.
"Expiration Date" has the meaning set forth in the definition
of "Offer to Purchase".
"GAAP" means generally accepted accounting principles,
consistently applied, as in effect on the Issue Date in the United States of
America, as 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 is approved by a significant
segment of the accounting profession in the United States.
"Global Security" means the global security, without coupons,
representing all or a portion of the Securities depos-
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ited with DTC substantially in the form of Exhibit A attached hereto.
"guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Indebtedness of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and including,
without limitation, any obligation of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (ii) to purchase property, securities or
services for the purpose of assuring the holder of such Indebtedness of the
payment of such Indebtedness, or (iii) to maintain working capital, equity
capital or other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness (and
"guaranteed," "guaranteeing" and "guarantor" shall have meanings correlative to
the foregoing); provided, however, that the guarantee by any Person shall not
include endorsements by such Person for collection or deposit, in either case,
in the ordinary course of business.
"Guarantee" means the guarantee of the Securities by each
Guarantor under this Indenture.
"Guarantor" means (i) each Restricted Subsidiary on the Issue
Date and (ii) each Restricted Subsidiary, if any, of the Company formed or
acquired after the Issue Date which pursuant to the terms of this Indenture
executes a supplement to this Indenture as a Guarantor.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the books of the Registrar or any co-Registrar.
"Incur" means, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (including by conversion,
exchange or otherwise), assume, guarantee or otherwise become liable in respect
of such Indebtedness or other obligation or the recording, as required pursuant
to GAAP or otherwise, of any such Indebtedness or other obligation on the
balance sheet of such Person (and "Incurrence," "Incurred" and "Incurring" shall
have meanings correlative to the foregoing). Indebtedness of any Person or any
of its Restricted Subsidiaries existing at the time such Person becomes a
Restricted Subsidiary of the Company (or is merged into or consolidates with the
Company or any of its Restricted Subsidi-
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aries), whether or not such Indebtedness was incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary of the Company
(or being merged into or consolidated with the Company or any of its Restricted
Subsidiaries), shall be deemed Incurred at the time any such Person becomes a
Restricted Subsidiary of the Company or merges into or consolidates with the
Company or any of its Restricted Subsidiaries.
"Indebtedness" means (without duplication), with respect to
any Person, whether recourse is to all or a portion of the assets of such Person
and whether or not contingent, (i) every obligation of such Person for money
borrowed, (ii) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in connection
with the acquisition of property, assets or businesses, (iii) every
reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
Person, (iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business which are not
overdue or which are being contested in good faith), (v) every Capital Lease
Obligation of such Person, (vi) every net obligation under interest rate swap or
similar agreements or foreign currency hedge, exchange or similar agreements of
such Person and (vii) every obligation of the type referred to in clauses (i)
through (vi) of another Person and all dividends of another Person the payment
of which, in either case, such Person has guaranteed or is responsible or liable
for, directly or indirectly, as obligor, guarantor or otherwise. Indebtedness
shall include the liquidation preference and any mandatory redemption payment
obligations in respect of any Disqualified Stock of the Company owned by any
Person other than the Company or a Restricted Subsidiary of the Company, and any
Preferred Stock of a Restricted Subsidiary of the Company. Indebtedness shall
never be calculated taking into account any cash and cash equivalents held by
such Person. Indebtedness shall not include obligations arising from agreements
of the Company or a Restricted Subsidiary of the Company to provide for
indemnification, adjustment of purchase price, earn-out, or other similar
obligations, in each case, incurred or assumed in connection with the
disposition of any business or assets of a Restricted Subsidiary of the Company.
"Indenture" means this Indenture as amended or supplemented
from time to time.
18
-10-
"Initial Global Securities" means the Regulation S Global
Security and the 144A Global Security, each of which contains a Securities Act
Legend.
"Initial Securities" means the Securities containing a
Securities Act Legend.
"Interest Payment Date" means the stated maturity of an
installment of interest on the Securities.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) of Regulation D promulgated under the Securities Act.
"Investment" by any Person means any direct or indirect loan,
advance, guarantee or other extension of credit (excluding credit balances in
bank accounts or similar accounts with other financial institutions) or capital
contribution to (by means of transfers of cash or other property to others or
payments for property or services for the account or use of others, or
otherwise), or purchase or acquisition of Capital Stock, bonds, notes,
debentures or other securities or evidence of Indebtedness issued by any other
Person.
"Issue Date" means April 4, 1997.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, security interest,
lien, charge, easement (other than any easement not materially impairing
usefulness or marketability), encumbrance, preference, priority or other
security agreement with respect to such property or assets (including, without
limitation, any conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing).
"Material Subsidiary" means, at any date of determination, any
Subsidiary that, together with its Subsidiaries, (i) for the most recent fiscal
year of the Company accounted for more than 5% of the consolidated revenues of
the Company or (ii) as of the end of such fiscal year, was the owner of more
than 5% of the consolidated assets of the Company, all as set forth on the most
recently available consolidated financial statements of the Company for such
fiscal year prepared in conformity with GAAP.
19
-11-
"Maturity Date" means the date, which is set forth on the face
of the Securities, on which the Securities will mature.
"Net Available Proceeds" from any Asset Disposition by any
Person means cash or readily marketable cash equivalents received (including by
way of sale or discounting of a note, installment receivable or other
receivable, but excluding any other consideration received in the form of
assumption by the acquiror of Indebtedness or other obligations relating to such
properties or assets or received in any other non-cash form) therefrom by such
Person, including any cash received by way of deferred payment or upon the
monetization or other disposition of any non-cash consideration (including notes
or other securities) received in connection with such Asset Disposition, net of
(i) all legal, title and recording tax expenses, commissions and other fees and
expenses incurred and all federal, state, foreign and local taxes required to be
accrued as a liability as a consequence of such Asset Disposition, (ii) all
payments made by such Person or its Restricted Subsidiaries on any Indebtedness
which is secured by such assets in accordance with the terms of any Lien upon or
with respect to such assets or which must by the terms of such Lien, or in order
to obtain a necessary consent to such Asset Disposition or by applicable law, be
repaid out of the proceeds from such Asset Disposition, (iii) all payments made
with respect to liabilities associated with the assets which are the subject of
the Asset Disposition, including, without limitation, trade payables and other
accrued liabilities, (iv) appropriate amounts to be provided by such Person or
any Restricted Subsidiary thereof, as the case may be, as a reserve in
accordance with GAAP against any liabilities associated with such assets and
retained by such Person or any Restricted Subsidiary thereof, as the case may
be, after such Asset Disposition, including, without limitation, liabilities
under any indemnification obligations and severance and other employee
termination costs associated with such Asset Disposition, until such time as
such amounts are no longer reserved or such reserve is no longer necessary (at
which time any remaining amounts will become Net Available Proceeds to be
allocated in accordance with the provisions of clause (iii) of Section 4.05),
and (v) all distributions and other payments made to minority interest holders
in Restricted Subsidiaries of such Person or joint ventures as a result of such
Asset Disposition.
"Net Investment" means the excess of (i) the aggregate amount
of all Investments in Unrestricted Subsidiaries or joint ventures made by the
Company or any Restricted Subsidiary
20
-12-
on or after the Issue Date (in the case of an Investment made other than in
cash, the amount shall be the fair market value of such Investment as determined
in good faith by the Board of Directors of the Company or such Restricted
Subsidiary) over (ii) the aggregate amount returned in cash on or with respect
to such Investments whether through interest payments, principal payments,
dividends or other distributions or payments; provided, however, that such
payments or distributions shall not be (and have not been) included in subclause
(b) of clause (3) of the first paragraph of Section 4.06; provided, further,
that with respect to all Investments made in any Unrestricted Subsidiary or
joint venture the amounts referred to in clause (ii) above with respect to such
Investments shall not exceed the aggregate amount of all such Investments made
in such Unrestricted Subsidiary or joint venture.
"Offer" has the meaning set forth in the definition of "Offer
to Purchase".
"Offer to Purchase" means a written offer (the "Offer") sent
by the Company by first class mail, postage prepaid, to each Holder at his
address appearing in the register for the Securities on the date of the Offer
offering to purchase up to the principal amount of Securities specified in such
Offer at the purchase price specified in such Offer (as determined pursuant to
this Indenture). Unless otherwise required by applicable law, the Offer shall
specify an expiration date (the "Expiration Date") of the Offer to Purchase
which shall be not less than 30 days nor more than 60 days after the date of
such Offer and a settlement date (the "Purchase Date") for purchase of
Securities within five Business Days after the Expiration Date. The Company
shall notify the Trustee at least 15 Business Days (or such shorter period as is
acceptable to the Trustee) prior to the mailing of the Offer of the Company's
obligation to make an Offer to Purchase, and the Offer shall be mailed by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company. The Offer shall contain all the information required by
applicable law to be included therein. The Offer shall contain all instructions
and materials necessary to enable such Holders to tender Securities pursuant to
the Offer to Purchase. The Offer shall also state:
(1) the Section of this Indenture pursuant to which the Offer
to Purchase is being made;
(2) the Expiration Date and the Purchase Date;
21
-13-
(3) the aggregate principal amount of the outstanding
Securities offered to be purchased by the Company pursuant to the Offer
to Purchase (including, if less than 100%, the manner by which such
amount has been determined pursuant to the Section of this Indenture
requiring the Offer to Purchase) (the "Purchase Amount");
(4) the purchase price to be paid by the Company for each
$1,000 aggregate principal amount of Securities accepted for payment
(as specified pursuant to this Indenture) (the "Purchase Price");
(5) that the Holder may tender all or any portion of the
Securities registered in the name of such Holder and that any portion
of a Security tendered must be tendered in an integral multiple of
$1,000 principal amount;
(6) the place or places where Securities are to be surrendered
for tender pursuant to the Offer to Purchase;
(7) that interest on any Security not tendered or tendered but
not purchased by the Company pursuant to the Offer to Purchase will
continue to accrue;
(8) that on the Purchase Date the Purchase Price will become
due and payable upon each Security being accepted for payment pursuant
to the Offer to Purchase and that interest thereon shall cease to
accrue on and after the Purchase Date;
(9) that each Holder electing to tender all or any portion of
a Security pursuant to the Offer to Purchase will be required to
surrender such Security at the place or places specified in the Offer
prior to the close of business on the Expiration Date (such Security
being, if the Company or the Trustee so requires, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing);
(10) that Holders will be entitled to withdraw all or any
portion of Securities tendered if the Company (or its Paying Agent)
receives, not later than the close of business on the fifth Business
Day next preceding the Expiration Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Security the Holder tendered, the certifi-
22
-14-
cate number of the Security the Holder tendered and a statement that
such Holder is withdrawing all or a portion of his tender;
(11) that (a) if Securities in an aggregate principal amount
less than or equal to the Purchase Amount are duly tendered and not
withdrawn pursuant to the Offer to Purchase, the Company shall purchase
all such Securities and (b) if Securities in an aggregate principal
amount in excess of the Purchase Amount are tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase
Securities having an aggregate principal amount equal to the Purchase
Amount on a pro rata basis (with such adjustments as may be deemed
appropriate so that only Securities in denominations of $1,000 or
integral multiples thereof shall be purchased); and
(12) that in the case of any Holder whose Security is
purchased only in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, in an aggregate principal amount equal to and
in exchange for the unpurchased portion of the Security so tendered.
An Offer to Purchase shall be governed by and effected in
accordance with the provisions above pertaining to any Offer.
"Officer" means the Chairman, the President, any Vice
President, the Chief Financial Officer, the Treasurer, the Secretary, or the
Controller of the Company.
"Officers' Certificate" means a certificate signed by two
Officers (one of whom shall be the Chief Executive Officer, the Chief Operating
Officer, or the Chief Financial Officer of the Company) or by an Officer and the
Treasurer, the Secretary, an Assistant Treasurer or Assistant Secretary of the
Company complying with Sections 13.04 and 13.05.
"Opinion of Counsel" means a written opinion reasonably
satisfactory in form and substance to the Trustee from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
23
-15-
"Participant" means, with respect to DTC, Euroclear or Cedel,
a Person who has an account with DTC, Euroclear or Cedel, respectively (and,
with respect to DTC, shall include Euroclear and Cedel).
"Permitted Holder" means any of any member of the Board of
Directors of the Company as of the Issue Date, Tekni-Plex Partners L.P., MST/TP
Partners, L.P., MST Management, L.P., MST Partners L.P., any Affiliate of or
partner in any of the foregoing (including any Person receiving common stock of
the Company upon a distribution by any of the foregoing partnerships, whether a
partner or designated by a partner for purposes of estate or similar personal
planning), or any group if the majority of the shares of Common Stock of the
Company owned by such group are beneficially owned by any or all of the
foregoing and their Related Persons and Affiliates.
"Permitted Investments" means (i) Investments in marketable,
direct obligations issued or guaranteed by the United States of America, or any
governmental entity or agency or political subdivision thereof (provided, that
the full faith and credit of the United States of America is pledged in support
thereof), maturing within one year of the date of purchase; (ii) Investments in
commercial paper issued by corporations or financial institutions maturing
within 180 days from the date of the original issue thereof, and rated "P-1" or
better by Xxxxx'x Investors Service or "A-1" or better by Standard & Poor's
Corporation or an equivalent rating or better by any other nationally recognized
securities rating agency; (iii) Investments in certificates of deposit issued or
acceptances accepted by or guaranteed by any bank or trust company organized
under the laws of the United States of America, any state thereof, the District
of Columbia, Canada or any province thereof, in each case having a combined
capital, surplus and undivided profits totalling more than $500 million,
maturing within one year of the date of purchase; (iv) Investments representing
Capital Stock or obligations issued or otherwise transferred to the Company or
any of its Restricted Subsidiaries in the course of the good faith settlement of
claims against any other Person or by reason of a composition or readjustment of
debt or a reorganization of any debtor of the Company or any of its Restricted
Subsidiaries; (v) deposits, including interest-bearing deposits, maintained in
the ordinary course of business in banks; (vi) any acquisition of the Capital
Stock of any Person; provided, however, that after giving effect to any such
acquisition such Person shall become a Restricted Subsidiary of the Company;
(vii) receivables and prepaid expenses, in each case arising in the ordinary
course of
24
-16-
business; provided, however, that such receivables and prepaid expenses would be
recorded as assets of such Person in accordance with GAAP; (viii) endorsements
for collection or deposit in the ordinary course of business by such Person of
bank drafts and similar negotiable instruments of such other Person received as
payment for ordinary course of business; (ix) any interest swap or hedging
obligation with an unaffiliated Person otherwise permitted by this Indenture;
(x) Investments received as consideration for an Asset Disposition in compliance
with Section 4.05; (xi) Investments in Restricted Subsidiaries or by virtue of
which a Person becomes a Restricted Subsidiary; and (xii) loans and advances to
employees of the Company or any of its Restricted Subsidiaries in the ordinary
course of business.
"Person" means any individual, corporation, limited or general
partnership, limited liability company, joint venture, association, joint stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Preferred Stock," as applied to the Capital Stock of any
Person, means Capital Stock of such Person of any class or classes (however
designated) that ranks prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Capital Stock of any
other class of such Person.
"principal" of a debt security means the principal of the
security plus, when appropriate, the premium, if any, on the security.
"Private Exchange Securities" shall have the meaning set forth
in the Registration Rights Agreement.
"Purchase Amount" has the meaning set forth in the definition
of "Offer to Purchase".
"Purchase Date" has the meaning set forth in the definition of
"Offer to Purchase".
"Purchase Price" has the meaning set forth in the definition
of "Offer to Purchase".
"QIB" means a "qualified institutional buyer" as defined in
Rule 000X.
00
-00-
"redemption date," when used with respect to any Security to
be redeemed, means the date fixed for such redemption pursuant to this
Indenture.
"redemption price," when used with respect to any Security to
be redeemed, means the price fixed for such redemption pursuant to this
Indenture as set forth in the form of Security annexed as Exhibit A.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of April 4, 1997 among the Company, the Guarantor and X.X.
Xxxxxx Securities Inc.
"Regulation S" means Regulation S promulgated under the
Securities Act (including any successor regulation thereto) as it may be amended
from time to time.
"Related Person" of any Person means any other Person directly
or indirectly owning (a) 5% or more of the outstanding Common Stock of such
Person (or, in the case of a Person that is not a corporation, 5% or more of the
equity interest in such Person) or (b) 5% or more of the combined voting power
of the Voting Stock of such Person.
"Restricted Physical Security" means a Physical Security
containing a Securities Act Legend.
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
"Rule 144" shall have the meaning set forth in the
Registration Rights Agreement.
"Rule 144A" shall have the meaning set forth in the
Registration Rights Agreement.
"Securities" means the 11 1/4% Senior Subordinated Notes due
2007 issued pursuant to the terms of this Indenture, as amended or supplemented
from time to time.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the Commission thereunder.
"Securityholder" has the meaning set forth in the definition
of "Holder" above.
26
-18-
"Senior Debt" means, with respect to any Person at any date,
(i) in the case of the Company or the Guarantor, all Indebtedness and other
obligations under the Credit Agreement, including, without limitation,
principal, premium, if any, and interest on such Indebtedness and all other
amounts due on or in connection with such Indebtedness including all charges,
fees and expenses, (ii) all other Indebtedness of such Person for money
borrowed, including principal, premium, if any, and interest on such
Indebtedness, unless the instrument under which such Indebtedness for money
borrowed is created, incurred, assumed or guaranteed expressly provides that
such Indebtedness for money borrowed is not senior or superior in right of
payment to the Securities, and all renewals, extensions, modifications,
amendments, refinancing or replacements thereof and all other Indebtedness of
such Person of the types referred to in clauses (iii), (iv) (not including
obligations issued or assumed as the deferred purchase price of services) and
(vi) of the definition of Indebtedness and (iii) all interest on any
Indebtedness referred to in clauses (i) and (ii) accruing during, or which would
accrue but for, the pendency of any bankruptcy or insolvency proceeding, whether
or not allowed thereunder. Notwithstanding the foregoing, Senior Debt shall not
include (a) Indebtedness which is pursuant to its terms or any agreement
relating thereto or by operation of law subordinated or junior in right of
payment or otherwise to any other Indebtedness of such Person; provided,
however, that no Indebtedness shall be deemed to be subordinate or junior in
right of payment or otherwise to any other Indebtedness of a Person solely by
reason of such other Indebtedness being secured and such Indebtedness not being
secured, (b) the Securities, (c) any Indebtedness of such Person to any of its
Subsidiaries, (d) Indebtedness Incurred in violation of Section 4.04; provided,
however, that Indebtedness under the Credit Agreement shall be deemed not to
have been Incurred in violation of such provisions for purposes of this clause
(d) if the holder(s) of such Indebtedness or their agent or representative shall
have received a representation from the Company to the effect that the
Incurrence of such Indebtedness does not violate such provision, and (e) any
Indebtedness which, when incurred and without respect to any election under
Section 1111(b) of the Bankruptcy Code, is without recourse to the Company.
"Shelf Registration Statement" shall have the meaning set
forth in the Registration Rights Agreement.
"Stated Maturity," when used with respect to any Security or
any installment of interest thereon, means the date specified in such Security
as the fixed date on which the prin-
27
-19-
cipal of such Security or such installment of interest is due and payable.
"Subordinated Indebtedness" means any Indebtedness (whether
outstanding on the date hereof or hereafter incurred) which is by its terms
expressly subordinate or junior in right of payment to the Securities.
"Subsidiary" of any Person means (i) a corporation more than
50% of the outstanding Voting Stock of which is owned, directly or indirectly,
by such Person or by one or more other Subsidiaries of such Person or by such
Person and one or more other Subsidiaries thereof or (ii) any other Person
(other than a corporation) in which such Person, or one or more other
Subsidiaries of such Person or such Person and one or more other Subsidiaries
thereof, directly or indirectly, have at least a majority ownership and voting
power relating to the policies, management and affairs thereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Section 77aaa-77bbbb) as in effect on the date of this Indenture, except
as provided in Section 10.03.
"Trustee" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture and thereafter means such successor.
"Trust Officer" means any officer within the corporate trust
department (or any successor group of the Trustee) including any vice president,
assistant vice president, assistant secretary or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the persons who at that time shall be such officers, and also
means, with respect to a particular corporate trust matter, any other officer to
whom such trust matter is referred because of his knowledge of and familiarity
with the particular subject.
"Unrestricted Global Securities" means one or more Global
Securities that do not and are not required to bear the Securities Act Legend.
"Unrestricted Physical Securities" means one or more Physical
Securities that do not and are not required to bear the Securities Act Legend.
28
-20-
"Unrestricted Securities" means the Securities that do not and
are not required to bear the Securities Act Legend.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company formed or acquired after the Issue Date that at the time of
determination is designated an Unrestricted Subsidiary by the Board of Directors
in the manner provided below and (ii) any Subsidiary of an Unrestricted
Subsidiary. Any such designation by the Board of Directors will be evidenced 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. The Board of Directors
of the Company may not designate any Subsidiary of the Company to be an
Unrestricted Subsidiary if, after such designation, (a) the Company or any other
Restricted Subsidiary (i) provides credit support for, or a guarantee of, any
Indebtedness of such Subsidiary (including any undertaking, agreement or
instrument evidencing such Indebtedness) or (ii) is directly or indirectly
liable for any Indebtedness of such Subsidiary, (b) a default with respect to
any Indebtedness of such Subsidiary (including any right which the holders
thereof may have to take enforcement action against such Subsidiary) would
permit (upon notice, lapse of time or both) any holder of any other Indebtedness
of the Company or any Restricted Subsidiary to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its final scheduled maturity or (c) such Subsidiary owns any Capital Stock of,
or owns or holds any Lien on any property of, any Restricted Subsidiary which is
not a Subsidiary of the Subsidiary to be so designated.
"Voting Stock" of any Person means the Capital Stock of such
Person which ordinarily has voting power for the election of directors (or
persons performing similar functions) of such Person, whether at all times or
only so long as no senior class of securities has such voting power by reason of
any contingency.
"Wholly Owned Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Subsidiaries of
such Person or by such Person and one or more Wholly Owned Subsidiaries of such
Person.
29
-21-
SECTION 1.02. Other Definitions.
Term Defined in Section
---- ------------------
"Bankruptcy Law" 6.01
"Change of Control" 4.14
"Custodian" 6.01
"Event of Default" 6.01
"Funding Guarantor" 11.05
"Guarantor Blockage Period" 12.02(a)
"Guarantor Payment Blockage Notice" 12.02(a)
"Guarantor Securities Payment" 12.02
"144A Global Security" 2.01(a)
"Paying Agent" 2.03
"Payment Blockage Notice" 8.02(a)
"Payment Blockage Period" 8.02(a)
"Physical Security" 2.01(b)
"Registrar" 2.03
"Regulation S Global Security" 2.01(a)
"Required Filing Date" 4.12
"Securities Act Legend" 2.06(f)
"Securities Payment" 8.02
"United States Government Obligation" 9.01
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
30
-22-
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 not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles in effect from time to time, and any other reference in this
Indenture to "generally accepted accounting principles" refers to GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section
or other subdivision; and
(7) whenever in this Indenture there is mentioned, in any
context, principal, interest or any other amount payable under or with
respect to any Security, such mention shall be deemed to include
mention of the payment of Additional Interest to the extent that, in
such context, Additional Interest is, was or would be payable in
respect hereof.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
(a) Global Securities. Securities offered and sold to QIBs in
reliance on Rule 144A shall be issued initially substantially in the form of
Exhibit A hereto in the name of Cede & Co. as nominee of DTC, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. Such
Se-
31
-23-
curity shall be referred to herein as the "144A Global Security." Securities
offered and sold in reliance on Regulation S shall be issued initially
substantially in the form of Exhibit A hereto in the name of Cede & Co. as
nominee of DTC, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. Such Security shall be referred to herein as the
"Regulation S Global Security." Unrestricted Global Securities shall be issued
initially in accordance with Sections 2.06(b)(iv), 2.06(c)(ii) and 2.06(e) in
the name of Cede & Co. as nominee of DTC, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of each of the Global Security may from time to time be increased or
decreased by adjustments made on the records of the Trustee as hereinafter
provided.
Each Global Security shall represent such of the outstanding
Securities as shall be specified therein and each shall provide that it shall
represent the aggregate principal amount of outstanding Securities from time to
time endorsed thereon and that the aggregate principal amount of outstanding
Securities represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions and transfers of interests
therein in accordance with the terms of this Indenture. Any endorsement of a
Global Security to reflect the amount of any increase or decrease in the
principal amount of outstanding Securities represented thereby shall be made by
the Trustee in accordance with instructions given by the Holder thereof as
required by Section 2.06 hereof.
Upon the issuance of the Global Security to DTC, DTC shall
credit, on its internal book-entry registration and transfer system, its
Participant's accounts with the respective interests owned by such Participants.
Interests in the Global Securities shall be limited to Participants, including
Euroclear and Cedel, and indirect Participants.
The Participants shall not have any rights either under this
Indenture or under any Global Security with respect to such Global Security held
on their behalf by DTC, and DTC may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of such Global
Security for the purpose of receiving payment of or on account of the principal
of and, subject to the provisions of this Indenture, interest and Additional
Interest, if any, on the Global Securities and for all other purposes.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization
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furnished by DTC or impair, as between DTC and its Participants, the operation
of customary practices of DTC governing the exercise of the rights of an owner
of a beneficial interest in any Global Security.
The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and the "General
Terms and Conditions of Cedel Bank" and "Customer Handbook" of Cedel shall be
applicable to interests in the Regulation S Global Security that are held by the
Participants through Euroclear or Cedel.
(b) Physical Securities. Securities offered and sold to
Institutional Accredited Investors who are not also QIBs shall be issued
initially substantially in the form of Exhibit A hereto, in certificated form
and issued in the names of the purchasers thereof (or their nominees), duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. Such Securities, together with any Securities subsequently issued,
whether pursuant to the terms of Section 2.06 hereof or otherwise, that are not
Global Securities, shall be referred to herein as the "Physical Securities."
(c) Securities. The provisions of the form of Securities
contained in Exhibit A hereto are incorporated herein by reference. The
Securities and the Trustee's Certificates of Authentication shall be
substantially in the form of Exhibit A hereto. The Securities may have
notations, legends or endorsements required by law, stock exchange rule, usage
or agreement to which the Company is subject. The Company shall approve the form
of the Securities and any notation, legend or endorsement (including notations
relating to the Guarantee) on them. If required, the Securities may bear the
appropriate legend regarding original issue discount for federal income tax
purposes. Each Security shall be dated the date of its authentication. The terms
and provisions contained in the Securities shall constitute, and are hereby
expressly made, a part of this Indenture.
SECTION 2.02. Execution and Authentication.
Two Officers of the Company shall sign the Securities for the
Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
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A Security shall not be valid until an authorized officer of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate (i) Initial Securities for
original issue on the Issue Date in the aggregate principal amount of
$75,000,000, (ii) Private Exchange Securities from time to time only in exchange
for a like principal amount of Initial Securities, (iii) Unrestricted Securities
from time to time in exchange for a like principal amount of Initial Securities,
or (iv) one or more series of Securities (which may be in the form of Initial
Securities) in an aggregate principal amount of not more than the excess of
$150,000,000 over the sum of the aggregate principal amount of (A) Initial
Securities then outstanding, (B) Private Exchange Securities then outstanding
and (C) Unrestricted Securities issued in accordance with clause (iii), in each
case upon a Company Order (an "Authentication Order"). The Authentication Order
shall be based upon a Board Resolution of the Company to similar effect filed
with the Trustee and shall specify the amount of such Securities to be
authenticated and the date on which the original issue of such Securities is to
be authenticated. The Authentication Order shall also provide instructions
concerning registration, amounts for each Holder and delivery. The aggregate
principal amount of Securities outstanding at any time may not exceed
$150,000,000 except as provided in Section 2.07. The Securities shall be issued
only in registered form, without coupons and only in denominations of $1,000 and
any integral multiple thereof All Securities issued under this Indenture shall
vote and consent together on all matters as one class and no series of
Securities will have the right to vote or consent as a separate class on any
matter.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where
Securities may be presented for registration of transfer or for exchange
("Registrar") and an office or agency where Securities may be presented for
payment ("Paying Agent"). The Company may have one or more co-Registrars and one
or more additional paying agents. The term "Paying Agent" includes any
additional paying agent.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that
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relate to such Agent and shall, if required, incorporate the provisions of the
TIA. The Company shall notify the Trustee of the name and address of any such
Agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee
shall act as such and shall be entitled to appropriate compensation in
accordance with the provisions of Section 7.07.
The Company initially appoints the Trustee as Registrar and
Paying Agent. The Company shall give written notice to the Trustee in the event
that the Company decides to act as Registrar. None of the Company, its
Subsidiaries or any of their Affiliates may act as Paying Agent.
SECTION 2.04. Paying Agent To Hold Money in Trust.
The Company shall require each Paying Agent to agree in
writing (if other than the Trustee, who hereby agrees) to hold in trust for the
benefit of Securityholders or the Trustee all money held by the Paying Agent for
the payment of principal of or interest on the Securities (whether such money
has been paid to it by the Company or any other obligor on the Securities), and
the Company and the Paying Agent shall each notify the Trustee of any default by
the Company (or any other obligor on the Securities) in making any such payment.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee and account for any funds disbursed and the Trustee may at any
time during the continuance of any payment default, upon written request to a
Paying Agent, require such Paying Agent to pay all money held by it to the
Trustee and to account for any funds disbursed. Upon making such payment the
Paying Agent shall have no further liability for the money delivered to the
Trustee.
SECTION 2.05. Securityholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Securityholders. If the Trustee is not the Registrar, the Company
shall furnish to the Trustee at least five Business Days before each Interest
Payment Date and at such other times as the Trustee may request in writing a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Securityholders.
SECTION 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Securities. Transfer of
the Global Securities shall be by delivery. Global
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Securities will be exchanged by the Company for Physical Securities only (i) if
DTC notifies the Company that it is unwilling or unable to continue to act as
depositary with respect to the Global Securities or ceases to be a clearing
agency registered under the Exchange Act and, in either case, a successor
depositary registered as a clearing agency under the Exchange Act is not
appointed by the Company within 120 days, (ii) at any time if the Company in its
sole discretion determines that the Global Securities (in whole but not in part)
should be exchanged for Physical Securities or (iii) if the beneficial owner of
an interest in the Global Securities requests such Physical Securities,
following an Event of Default under this Indenture, in a writing delivered
through DTC to the Trustee.
Upon the occurrence of any of the events specified in the
previous paragraph, Physical Securities shall be issued in such names as DTC
shall instruct the Trustee and the Trustee shall cause the aggregate principal
amount of the applicable Global Security to be reduced accordingly and direct
DTC to make a corresponding reduction in its book-entry system. The Company
shall execute and the Trustee shall authenticate and deliver to the Person
designated in such instructions a Physical Security in the appropriate principal
amount. The Trustee shall deliver such Physical Securities to the Persons in
whose names such Securities are so registered. Physical Securities issued in
exchange for an Initial Global Security pursuant to this Section 2.06(a) shall
bear the Securities Act Legend and shall be subject to all restrictions on
transfer contained therein. Global Securities may also be exchanged or replaced,
in whole or in part, as provided in Sections 2.07 and 2.10. Every Security
authenticated and delivered in exchange for, or in lieu of, a Global Security or
any portion thereof, pursuant to Section 2.07 or 2.10, shall be authenticated
and delivered in the form of, and shall be, a Global Security. A Global Security
may not be exchanged for another Security other than as provided in this Section
2.06(a).
(b) Transfer and Exchange of Interests in Global Securities.
The transfer and exchange of interests in Global Securities shall be effected
through DTC, in accordance with this Indenture and the procedures of DTC
therefor. Interests in Initial Global Securities shall be subject to
restrictions on transfer comparable to those set forth herein to the extent
required by the Securities Act. The Trustee shall have no obligation to
ascertain DTC's compliance with any such restrictions on transfer. Transfers of
interests in Global Securities shall also require compliance with subparagraph
(i) below, as
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well as one or more of the other following subparagraphs as applicable:
(i) All Transfers and Exchanges of Interests in Global
Securities. In connection with all transfers and exchanges of interests
in Global Securities (other than transfers of interests in a Global
Security to Persons who take delivery thereof in the form of an
interest in the same Global Security), the transferor of such interest
must deliver to the Registrar (1) instructions given in accordance with
the Applicable Procedures from a Participant or an indirect Participant
directing DTC to credit or cause to be credited an interest in the
specified Global Security in an amount equal to the interest to be
transferred or exchanged, (2) a written order given in accordance with
the Applicable Procedures containing information regarding the
Participant account to be credited with such increase and (3)
instructions given by the Holder of the Global Security to effect the
transfer referred to in (1) and (2) above.
(ii) Transfer of Interests in the Same Initial Global
Security. Interests in any Initial Global Security may be transferred
to Persons who take delivery thereof in the form of an interest in the
same Initial Global Security in accordance with the transfer
restrictions set forth in Section 2.06(f) hereof.
(iii) Transfer of Interests to Another Initial Global
Security. Interests in any Initial Global Security may be transferred
to Persons who take delivery thereof in the form of an interest in
another Initial Global Security if the Registrar receives the
following:
(A) if the transferee will take delivery in the form
of an interest in the 144A Global Security, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item 1 thereof; or
(B) if the transferee will take delivery in the form
of an interest in the Regulation S Global Security, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item 2 thereof.
(iv) Transfer and Exchange of Interests in Initial Global
Security for Interests in an Unrestricted Global
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Security. Interests in any Initial Global Security may be exchanged by
the holder thereof for an interest in the Unrestricted Global Security
or transferred to a Person who takes delivery thereof in the form of an
interest in the Unrestricted Global Security if:
(A) such exchange or transfer is effected pursuant to
the Exchange Registration Statement in accordance with the
Registration Rights Agreement;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement; or
(C) the Registrar receives the following:
(1) if the beneficial holder of such an
interest in an Initial Global Security proposes to
exchange it for an interest in the Unrestricted
Global Security, a certificate from such beneficial
holder in the form of Exhibit C hereto, including the
certifications in item 1(a) thereof;
(2) if the beneficial holder of such an
interest in an Initial Global Security proposes to
transfer it to a Person who shall take delivery
thereof in the form of an interest in an Unrestricted
Global Security, a certificate in the form of Exhibit
B hereto, including the certification in item 4
thereof; and
(3) in each such case set forth in this
paragraph (C), an Opinion of Counsel in form
reasonably acceptable to the Company, to the effect
that such exchange or transfer is in compliance with
the Securities Act and, that the restrictions on
transfer contained herein and in Section 2.06(f)
hereof are not required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to paragraph (B) above at a
time when an Unrestricted Global Security has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02, the Trustee shall authenticate one or
more Unrestricted Global Securities in an aggregate principal amount
equal to the principal amount of interests in the
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Initial Global Security transferred pursuant to paragraph (B) above.
(v) Notation by the Trustee of Transfer of Interests Among
Global Securities. Upon satisfaction of the requirements for transfer
of interests in Global Securities pursuant to clauses (iii) or (iv)
above, the Trustee shall reduce or cause to be reduced the aggregate
principal amount of the relevant Global Security from which the
interests are being transferred, and increase or cause to be increased
the aggregate principal amount of the Global Security to which the
interests are being transferred, in each case, by the principal amount
so transferred and shall direct DTC to make corresponding adjustments
in its book-entry system. No transfer of interests of a Global Security
shall be effected until, and any transferee pursuant thereto shall
succeed to the rights of a holder of such interests only when, the
Registrar has made appropriate adjustments to the applicable Global
Security in accordance with this paragraph.
(c) Transfer or Exchange of Physical Securities for Interests
in a Global Security.
(i) If any Holder of Physical Securities required to contain
the Securities Act Legend proposes to exchange such Securities for an
interest in a Global Security or to transfer such Physical Securities
to a Person who takes delivery thereof in the form of an interest in a
Global Security, then, upon receipt by the Registrar of the following
documentation (all of which may be submitted by facsimile):
(A) if the Holder of such Physical Registered
Securities proposes to exchange such Securities for an
interest in an Initial Global Security, a certificate from
such Holder in the form of Exhibit C hereto, including the
certifications in item 2 thereof;
(B) if such Physical Securities are being transferred
to a QIB in accordance with Rule 144A under the Securities
Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item 1 thereof; or
(C) if such Physical Securities are being transferred
to a Non-U.S. Person (as defined in Regu-
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lation S) in an offshore transaction in accordance with Rule
904 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item 2 thereof,
the Trustee shall cancel the Physical Securities, increase or cause to
be increased the aggregate principal amount of, in the case of clause
(B) above, the 144A Global Security or, in the case of clause (C)
above, the Regulation S Global Security, and direct DTC to make a
corresponding increase in its book-entry system.
(ii) A Holder of Physical Securities required to contain the
Securities Act Legend may exchange such Securities for an interest in
the Unrestricted Global Security or transfer such Restricted Physical
Securities to a Person who takes delivery thereof in the form of an
interest in the Unrestricted Global Security only:
(A) if such exchange or transfer is effected pursuant
to the Exchange Registration Statement in accordance with the
Registration Rights Agreement;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) upon receipt by the Registrar of the following
documentation (all of which may be submitted by facsimile):
(1) if the Holder of such Physical
Securities proposes to exchange such Securities for
an interest in the Unrestricted Global Security, a
certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item 1(b)
thereof;
(2) the Holder of such Registered Securities
proposes to transfer such Securities to a Person who
shall take delivery thereof in the form of an
interest in the Unrestricted Global Security, a
certificate in the form of Exhibit B hereto,
including the certifications in item 4 thereof; and
(3) in each such case set forth in this
paragraph (C), an Opinion of Counsel in form
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reasonably acceptable to the Company, to the effect
that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on
transfer contained herein and in Section 2.06(f)
hereof are not required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to paragraph (B)
above at a time when an Unrestricted Global Security has not
yet been issued, the Company shall issue and, upon receipt of
an Authentication Order in accordance with Section 2.02, the
Trustee shall authenticate one or more Unrestricted Global
Securities in an aggregate principal amount equal to the
principal amount of Physical Securities transferred pursuant
to paragraph (B) above.
(d) Transfer and Exchange of Physical Securities.
(i) Transfer of a Physical Security to Another Physical
Security. Following the occurrence of one or more of the events
specified in Section 2.06(a), a Physical Security may be transferred to
Persons who take delivery thereof in the form of another Physical
Security if the Registrar receives the following:
(A) if the transfer is being effected pursuant to and
in accordance with Rule 144A, then the transferor must deliver
a certificate in the form of Exhibit B hereto, including the
certifications in item 3(a) thereof; or
(B) if the transfer is being effected pursuant to and
in accordance with Regulation S, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item 3(b) thereof.
(ii) Transfer and Exchange of Restricted Physical Security for
Physical Security Which Does Not Bear the Securities Act Legend.
Following the occurrence of one or more of the events specified in
Section 2.06(a), a Restricted Physical Security may be exchanged by the
Holder thereof for a Physical Security or transferred to a Person who
takes delivery thereof in the form of a Physical Security which does
not bear the Securities Act Legend if:
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(A) such exchange or transfer is effected pursuant to the Exchange
Registration Statement in accordance with the Registration Rights
Agreement;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement; or
(C) the Registrar receives a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item 1(c)
thereof and an Opinion of Counsel in form reasonably acceptable to the
Company, to the effect that such exchange or transfer is in compliance
with the Securities Act and, that the restrictions on transfer
contained herein and in Section 2.06(f) hereof are not required in
order to maintain compliance with the Securities Act.
(iii) Exchange of Physical Securities. When Physical Securities are
presented by a Holder to the Registrar with a request to register the
exchange of such Physical Securities for an equal principal amount of
Physical Securities of other authorized denominations, the Registrar shall
make the exchange as requested only if the Physical Securities are endorsed
or accompanied by a written instrument of transfer in form satisfactory to
the Registrar duly executed by such Holder or by his attorney duly
authorized in writing and shall be issued only in the name of such Holder or
its nominee. The Physical Securities issued in exchange for Physical
Securities shall bear the Securities Act Legend and shall be subject to all
restrictions on transfer contained herein in each case to the same extent as
the Physical Securities so exchanged.
(iv) Return of Physical Securities. In the event of a transfer pursuant
to clauses (i) or (ii) above and the Holder thereof has delivered
certificates representing an aggregate principal amount of Securities in
excess of that to be transferred, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder of such Security without
service charge, a new Physical Security or Securities of any authorized
denomination requested by the Holder, in an aggregate principal amount equal
to the portion of the Security not so transferred.
(e) Exchange Offer. Upon the occurrence of the Exchange Offer (as
defined in the Registration Rights Agreement)
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in accordance with the Registration Rights Agreement, the Company shall issue
and, upon receipt of an Authentication Order in accordance with Section 2.02,
the Trustee shall authenticate one or more Unrestricted Global Securities in an
aggregate principal amount equal to the principal amount of the interests in the
Initial Global Securities and Restricted Physical Securities tendered for
acceptance by persons participating therein. Concurrently with the issuance of
such Securities, the Trustee shall cause the aggregate principal amount of the
applicable Initial Global Securities to be reduced accordingly and direct DTC to
make a corresponding reduction in its book-entry system. The Trustee shall
cancel any Restricted Physical Certificates in accordance with Section 2.11
hereof.
In the case that one or more of the events specified in Section 2.06(a)
have occurred, upon the occurrence of such Exchange Offer, the Company shall
issue and, upon receipt of an Authentication Order in accordance with Section
2.02, the Trustee shall authenticate Unrestricted Physical Securities in an
aggregate principal amount equal to the principal amount of the Restricted
Physical Securities tendered for acceptance by persons participating therein.
(f) Legends. Each Initial Global Security and each Restricted Physical
Security shall bear the legend (the "Securities Act Legend") in substantially
the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX
XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY
EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED
HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT OR (c) OUTSIDE THE
UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, (2) TO
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THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND,
IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE."
(g) Global Security Legend. Each Global Security shall bear a legend in
substantially the following form:
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO A
NOMINEE OF DTC, OR BY ANY NOMINEE OF DTC, OR BY DTC TO A SUCCESSOR
DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN SECTION 2.06 OF THE INDENTURE."
(h) Cancellation and/or Adjustment of Global Securities. At such time
as all interests in the Global Securities have been exchanged for Physical
Securities, all Global Securities shall be returned to or retained and cancelled
by the Trustee in accordance with Section 2.11 hereof. At any time prior to such
cancellation, if any interest in a Global Security is exchanged for an interest
in another Global Security or for Physical Securities, the principal amount of
Securities represented by such Global Security shall be reduced accordingly and
an endorsement shall be made on such Global Security, by the Trustee to reflect
such reduction.
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(i) General Provisions Relating to All Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Securities and
Physical Securities upon a written order signed by an Officer of the Company
or at the Registrar's request.
(ii) No service charge shall be made to a Holder for any registration
of transfer or exchange, but the Company may require payment of a sum
sufficient to cover any stamp or transfer tax or similar governmental charge
payable in connection therewith (other than any such stamp or transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant to
Sections 2.10, 3.06, 4.05, 4.14 and 10.05 hereof).
(iii) All Global Securities and Physical Securities issued upon any
registration of transfer or exchange of Global Securities or Physical
Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Global Securities or Physical Securities surrendered upon such registration
of transfer or exchange.
(iv) The Company shall not be required (A) to issue, to register the
transfer of or to exchange Securities during a period beginning at the
opening of business 15 days before the day of any selection of Securities
for redemption under Section 3.02 hereof and ending at the close of business
on the day of selection, (B) to register the transfer of or to exchange any
Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part or (C) to register
the transfer of or to exchange a Security between a record date and the next
succeeding Interest Payment Date.
(v) Prior to due presentment for the registration of a transfer of
any Security, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Security is registered as the absolute owner of
such Security for the purpose of receiving payment of principal of and
interest on such Securities and for all other purposes, and none of the
Trustee, any Agent or the Company shall be affected by notice to the
contrary.
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SECTION 2.07. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Security if the Trustee's requirements are met. An indemnity bond in an amount
sufficient in the judgment of the Company and the Trustee to protect the
Company, the Trustee or any Agent from any loss which any of them may suffer if
a Security is replaced may be required by the Trustee or the Company. The
Company and the Trustee each may charge such Holder for its expenses in
replacing such Security.
Every replacement Security is an additional obligation of the Company.
SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all Securities that have been
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation and those described in this Section as not outstanding. A
Security does not cease to be outstanding because the Company or one of its
Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds on a redemption date or Maturity Date money
sufficient to pay the principal of, and interest on Securities payable on that
date, then on and after that date such Securities cease to be outstanding and
interest on them ceases to accrue.
SECTION 2.09. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company, any Subsidiary or any of their respective 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
Securities that the Trustee actually knows are so owned shall be so disregarded.
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The Trustee may require an Officers' Certificate listing securities
owned by the Company, any Subsidiary or any of their respective Affiliates.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities. Until
such exchange, temporary Securities shall be entitled to the same rights,
benefits and privileges as definitive Securities.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee and no one else shall cancel all Securities surrendered for transfer,
exchange, payment or cancellation. The Company may not issue new Securities to
replace, or reissue or resell, Securities which the Company has redeemed or paid
or have been delivered to the Trustee for cancellation. The Trustee (subject to
the record-retention requirements of the Exchange Act) shall destroy cancelled
Securities and deliver a certificate of destruction thereof to the Company.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest, plus any interest payable on the defaulted
interest pursuant to Section 4.01 hereof, to the persons who are Securityholders
on a subsequent special record date, and such term, as used in this Section 2.12
with respect to the payment of any defaulted interest, shall mean the fifteenth
day next preceding the date fixed by the Company for the payment of defaulted
interest, whether or not such day is a Business Day. At least 15 days before
such special record date, the Company shall mail to each Securityholder and to
the Trustee a notice that states such special record date, the payment date and
the amount of defaulted interest to be paid.
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SECTION 2.13. CUSIP or CINS Number.
The Company in issuing the Securities may use a "CUSIP" or "CINS"
number, and if so, such CUSIP or CINS number shall be included in notices of
redemption or exchange as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP or CINS number printed in the notice or on the Securities,
and that reliance may be placed only on the other identification numbers printed
on the Securities. The Company will promptly notify the Trustee of any change in
the CUSIP or CINS number.
In the event that the Company shall issue and the Trustee shall
authenticate any Securities issued under this Indenture subsequent to the Issue
Date pursuant to the fourth paragraph of Section 2.02, the Company shall use its
best efforts to obtain the same "CUSIP" number for such Securities as is printed
on the Securities outstanding at such time; provided, however, that if any
series of Securities 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 Securities outstanding at such time for federal income tax purposes, the
Company may obtain a "CUSIP" number for such Securities that is different than
the "CUSIP" number printed on the Securities then outstanding.
SECTION 2.14. Payments of Interest.
(a) The Holder of a Physical Security at the close of business on the
regular record date with respect to any Interest Payment Date shall be entitled
to receive the interest and Additional Interest, if any, payable on such
Interest Payment Date notwithstanding any transfer or exchange of such Physical
Security subsequent to the regular record date and prior to such Interest
Payment Date, except if and to the extent the Company shall default in the
payment of the interest or Additional Interest due on such Interest Payment
Date, in which case such defaulted interest and Additional Interest, if any,
shall be paid in accordance with Section 2.12; provided that, in the event of an
exchange of a Physical Security for a beneficial interest in any Global Security
subsequent to a regular record date or any special record date and prior to or
on the related Interest Payment Date or other payment date under Section 2.12,
any payment of the interest and Additional Interest payable on such payment date
with respect to any such Physical Security shall be made to the Person in whose
name
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such Physical Security was registered on such record date. Payments of
interest on the Global Securities will be made to the Holder of the Global
Security on each Interest Payment Date; provided that, in the event of an
exchange of all or a portion of a Global Security for Physical Security
subsequent to the regular record date or any special record date and prior to or
on the related Interest Payment Date or other payment date under Section 2.12
any payment of interest or Additional Interest payable on such Interest Payment
Date or other payment date with respect to the Physical Security shall be made
to the Holder of the Global Security.
(b) The Trustee shall pay interest and Additional Interest, if any, to
DTC, with respect to any Global Security held by DTC, on the applicable Interest
Payment Date in accordance with instructions received from DTC at least five
Business Days before the applicable Interest Payment Date.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company wants to redeem Securities pursuant to paragraph 5 of
the Securities at the applicable redemption price set forth thereon, it shall
notify the Trustee in writing of the redemption date and the principal amount of
Securities to be redeemed.
The Company shall give the notice provided for in this Section 3.01 at
least 45 days before the redemption date (unless a shorter notice shall be
agreed to by the Trustee in writing) but not more than 60 days before the
redemption date, together with an Officers' Certificate stating that such
redemption will comply with the conditions contained herein.
SECTION 3.02. Selection of Securities To Be Redeemed.
If less than all of the Securities are to be redeemed pursuant to
paragraph 5 thereof, the Trustee shall select the Securities to be redeemed pro
rata or by lot or in such other manner as the Trustee shall deem appropriate and
fair. The Trustee shall make the selection from the Securities then outstanding,
subject to redemption and not previously called for redemption. The Trustee may
select for redemption portions (equal to $1,000 or any integral multiple
thereof) of the principal of Securities that have denominations larger than
$1,000.
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Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities 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 to each Holder
whose Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) the CUSIP number;
(4) the name and address of the Paying Agent to which the Securities
are to be surrendered for redemption;
(5) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making the redemption payment,
interest on Securities called for redemption ceases to accrue on and after
the redemption date and the only remaining right of the Holders is to
receive payment of the redemption price upon surrender to the Paying Agent;
and
(7) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
redemption date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion thereof will
be issued.
At the Company's request, the Trustee shall give the notice of
redemption on behalf of the Company, in the Company's name and at the Company's
expense.
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SECTION 3.04. Effect of Notice of Redemption.
Once a notice of redemption is mailed, Securities called for redemption
become due and payable on the redemption date and at the redemption price. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price, plus accrued interest thereon to the redemption date, but interest
installments whose maturity is on or prior to such redemption date shall be
payable to the Holders at the close of business on the relevant record dates
referred to in the Securities. The Trustee shall not be required to (i) issue,
authenticate, register the transfer of or exchange any Security during a period
beginning 15 days before the date a notice of redemption is mailed and ending at
the close of business on the date the redemption notice is mailed, or (ii)
register the transfer or exchange of any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
SECTION 3.05. Deposit of Redemption Price.
At least one Business Day before the redemption date, the Company shall
deposit with the Paying Agent money sufficient to pay the redemption price of
and accrued interest on all Securities to be redeemed on that date other than
Securities or portions thereof called for redemption on that date which have
been delivered by the Company to the Trustee for cancellation.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Trustee
shall authenticate for the Holder a new Security equal in principal amount to
the unredeemed portion of the Security surrendered.
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest on the Securities
in the manner provided in the Securities. An installment of principal or
interest shall be considered paid on the date due if the Trustee or Paying Agent
holds on that date money designated for and sufficient to pay the installment in
full and is not prohibited from paying such money to the Holders of the
Securities pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal (including, to the
extent permitted by applicable law, post-petition interest in a proceeding under
any Bankruptcy Law) at the same rate per annum borne by the Securities. The
Company shall pay interest on overdue installments of interest at the same rate
per annum borne by the Securities, to the extent lawful.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be surrendered for registration
of transfer or exchange or for presentation for payment and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office 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 13.02.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Company shall give
prompt written notice to the
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Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
SECTION 4.03. Limitation on Transactions with Affiliates and Related Persons.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into directly or indirectly any transaction with any of
their respective Affiliates or Related Persons (other than the Company or a
Restricted Subsidiary of the Company), including, without limitation, the
purchase, sale, lease or exchange of property, the rendering of any service, or
the making of any guarantee, loan, advance or Investment, either directly or
indirectly, involving aggregate consideration in excess of $1.0 million unless a
majority of the disinterested directors of the Board of Directors of the Company
determines, in its good faith judgment evidenced by a resolution of such Board
of Directors filed with the Trustee, that the terms of such transaction are at
least as favorable as the terms that could be obtained by the Company or such
Restricted Subsidiary, as the case may be, in a comparable transaction made on
an arm's-length basis between unaffiliated parties; provided, however, that if
the aggregate consideration is in excess of $5.0 million the Company shall also
obtain, prior to the consummation of the transaction, the favorable opinion as
to the fairness of the transaction to the Company or such Restricted Subsidiary
from a financial point of view from an independent financial advisor. The
provisions of this covenant shall not apply to (i) transactions permitted by
Section 4.06 and (ii) reasonable fees and compensation paid to, and indemnity
provided on behalf of, officers, directors and employees of the Company and its
Restricted Subsidiaries as determined in good faith by the Board of Directors or
authorized executive officers, as the case may be, of the Company.
SECTION 4.04. Limitation on Indebtedness.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, Incur any Indebtedness (including
Acquired Indebtedness), except: (i) Indebtedness of the Company or any of its
Restricted Subsidiaries, if immediately after giving effect to the Incurrence of
such Indebtedness and the receipt and application of the net proceeds thereof,
the Consolidated Cash Flow Ratio of the Company for a year consisting of the
four full fiscal quarters for which quarterly or annual financial statements are
available next preceding the Incurrence of such Indebtedness (calculated on a
pro forma basis in accordance with Article 11
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of Regulation S-X under the Securities Act or any successor provision as if such
Indebtedness had been Incurred on the first day of such year) would be greater
than 2.0 to 1.0; (ii) Indebtedness of the Company and its Restricted
Subsidiaries Incurred under the Credit Agreement in an amount not to exceed
$100.0 million in aggregate principal amount less the amount of any such
Indebtedness that is permanently repaid or, without duplication, the amount by
which commitments thereunder are permanently reduced, in either case, from the
proceeds of Asset Dispositions (it being understood that the amount incurred
under the Credit Agreement may be increased as a result of the operation of
clause (xiii) below); (iii) Indebtedness owed by the Company to any direct or
indirect Wholly Owned Subsidiary of the Company or Indebtedness owed by a direct
or indirect Restricted Subsidiary of the Company to the Company or a direct or
indirect Wholly Owned Subsidiary of the Company; provided, however, upon either
(I) the transfer or other disposition by such direct or indirect Wholly Owned
Subsidiary or the Company of any Indebtedness so permitted under this clause
(iii) to a Person other than the Company or another direct or indirect Wholly
Owned Subsidiary of the Company or (II) the issuance (other than directors'
qualifying shares), sale, transfer or other disposition of shares of Capital
Stock or other ownership interests (including by consolidation or merger) of
such direct or indirect Wholly Owned Subsidiary to a Person other than the
Company or another such Wholly Owned Subsidiary of the Company, the provisions
of this clause (iii) shall no longer be applicable to such Indebtedness and such
Indebtedness shall be deemed to have been Incurred at the time of any such
issuance, sale, transfer or other disposition, as the case may be; (iv)
Indebtedness of the Company or any Restricted Subsidiary under any interest rate
or foreign currency hedge or exchange or other similar agreement to the extent
entered into to hedge any other Indebtedness permitted under this Indenture
(including the Securities); (v) Indebtedness Incurred to defer, renew, extend,
replace, refinance or refund, whether under any amendment, supplement or
otherwise (collectively for purposes of this clause (v), to "refund") any
Indebtedness outstanding on the Issue Date, any Indebtedness Incurred under the
prior clause (i) above or the Securities and the Guarantee; provided, however,
that (I) such Indebtedness does not exceed the principal amount (or accrual
amount, if less) of Indebtedness so refunded plus the amount of any premium
required to be paid in connection with such refunding pursuant to the terms of
the Indebtedness refunded or the amount of any premium reasonably determined by
the issuer of such Indebtedness as necessary to accomplish such refunding by
means of a tender offer, exchange offer, or privately negotiated repurchase,
plus the expenses of
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such issuer reasonably incurred in connection therewith and (II)(A) in the case
of any refunding of Indebtedness that is pari passu with the Securities, such
refunding Indebtedness is made pari passu with or subordinate in right of
payment to the Securities, and, in the case of any refunding of Indebtedness
that is subordinate in right of payment to the Securities, such refunding
Indebtedness is subordinate in right of payment to the Securities on terms no
less favorable to the Holders of the Securities than those contained in the
Indebtedness being refunded, (B) in either case, the refunding Indebtedness by
its terms, or by the terms of any agreement or instrument pursuant to which such
Indebtedness is issued, does not have an Average Life that is less than the
remaining Average Life of the Indebtedness being refunded and does not permit
redemption or other retirement (including pursuant to any required offer to
purchase to be made by the Company or a Restricted Subsidiary of the Company) of
such Indebtedness at the option of the holder thereof prior to the final stated
maturity of the Indebtedness being refunded, other than a redemption or other
retirement at the option of the holder of such Indebtedness (including pursuant
to a required offer to purchase made by the Company or a Restricted Subsidiary
of the Company) which is conditioned upon a change of control of the Company
pursuant to provisions substantially similar to those contained in Section 4.14
and (C) any Indebtedness Incurred to refund any Indebtedness is Incurred by the
obligor on the Indebtedness being refunded or by the Company; (vi) commodity
agreements of the Company or any of its Restricted Subsidiaries to the extent
entered into to protect the Company and its Restricted Subsidiaries from
fluctuations in the prices of raw materials used in their businesses; (vii)
Indebtedness of the Company under the Exchange Securities (as defined in the
Registration Rights Agreement) and Indebtedness of the Guarantors, under the
Guarantee incurred in accordance with this Indenture; (viii) Indebtedness
outstanding on the Issue Date; (ix) guarantees by the Company or its Restricted
Subsidiaries of Indebtedness otherwise permitted to be incurred hereunder; (x)
Indebtedness the net proceeds of which are applied to defease the Securities in
their entirety; (xi) Indebtedness of the Company or any of its Subsidiaries that
is an endorsement of bank drafts and similar negotiable instruments for
collection or deposit in the ordinary course of business; (xii) Indebtedness
incurred by the Company or any of its Restricted Subsidiaries constituting
reimbursement obligations with respect to letters of credit issued in the
ordinary course of business, including, without limitation, letters of credit in
respect of workers' compensation claims or self-insurance, or other Indebtedness
with respect to reimbursement type obligations regarding workers' com-
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pensation claims or self-insurance and obligations in respect of performance and
surety bonds and completion guarantees provided by the Company or any Restricted
Subsidiary of the Company in the ordinary course of business not in excess of
$2.0 million; and (xiii) Indebtedness of the Company or its Restricted
Subsidiaries not otherwise permitted to be Incurred pursuant to clauses (i)
through (xii) above which, together with any other outstanding Indebtedness
Incurred pursuant to this clause (xiii), has an aggregate principal amount not
in excess of $20.0 million at any time outstanding, which Indebtedness may be
Incurred under the Credit Agreement or otherwise.
SECTION 4.05. Limitation on Certain Asset Dispositions.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, make one or more Asset Dispositions
unless: (i) the Company or such Restricted Subsidiary, as the case may be,
receives consideration for such Asset Disposition at least equal to the fair
market value of the assets sold or disposed of as determined by the Board of
Directors of the Company in good faith and evidenced by a resolution of such
Board of Directors filed with the Trustee; (ii) not less than 75% of the
consideration for the disposition consists of cash or readily marketable cash
equivalents or the assumption of Indebtedness (other than non-recourse
Indebtedness or any Subordinated Indebtedness) of the Company or such Restricted
Subsidiary or other obligations relating to such assets (and release of the
Company or such Restricted Subsidiary from all liability on the Indebtedness or
other obligations assumed); and (iii) all Net Available Proceeds, less any
amounts invested within 360 days of such Asset Disposition in assets related to
the business of the Company or its Restricted Subsidiaries (including in Capital
Stock of another Person (other than any Person that is a Restricted Subsidiary
of the Company immediately prior to such investment); provided, however, that
immediately after giving effect to any such investment in Capital Stock (and not
prior thereto) such Person shall be a Restricted Subsidiary of the Company), are
applied, on or prior to the 360th day after such Asset Disposition, unless and
to the extent that the Company shall determine to make an Offer to Purchase, to
the permanent reduction and prepayment of any Senior Debt of the Company then
outstanding (including a permanent reduction of commitments in respect thereof).
Any Net Available Proceeds from any Asset Disposition which is subject to the
immediately preceding sentence that are not applied as provided in the
immediately preceding sentence shall be used promptly after the expiration of
the 360th day after such Asset Disposition, or promptly after the
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Company shall have earlier determined to not apply any Net Available Proceeds
therefrom as provided in clause (iii) of the immediately preceding sentence, to
make an Offer to Purchase outstanding Securities at a purchase price in cash
equal to 100% of their principal amount plus accrued interest to the Purchase
Date. Notwithstanding the foregoing, the Company may defer making any Offer to
Purchase outstanding Securities until there are aggregate unutilized Net
Available Proceeds from Asset Dispositions otherwise subject to the two
immediately preceding sentences equal to or in excess of $5.0 million (at which
time, the entire unutilized Net Available Proceeds from Asset Dispositions
otherwise subject to the two immediately preceding sentences, and not just the
amount in excess of $5.0 million, shall be applied as required pursuant to this
paragraph). Any remaining Net Available Proceeds following the completion of the
required Offer to Purchase may be used by the Company for any other purpose
(subject to the other provisions of this Indenture) and the amount of Net
Available Proceeds then required to be otherwise applied in accordance with this
Section 4.05 shall be reset to zero, subject to any subsequent Asset
Disposition. These provisions will not apply to a transaction consummated in
compliance with the provisions of Section 5.01.
In the event that the Company makes an Offer to Purchase the
Securities, the Company shall comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and Rule
14e-1 under, the Exchange Act.
SECTION 4.06. Limitation on Restricted Payments.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, (i) declare or pay any dividend, or
make any distribution of any kind or character (whether in cash, property or
securities), on or in respect of any class of the Capital Stock of the Company
or any of its Restricted Subsidiaries excluding any (x) dividends or
distributions payable solely in shares of Capital Stock of the Company (other
than Disqualified Stock) or in options, warrants or other rights to acquire
Capital Stock of the Company (other than Disqualified Stock), or (y) in the case
of any Restricted Subsidiary of the Company, dividends or distributions payable
to the Company or a Restricted Subsidiary of the Company, (ii) purchase, redeem,
or otherwise acquire or retire for value shares of Capital Stock of the Company
or any of its Restricted Subsidiaries, any options, warrants or rights to
purchase or acquire shares of Capital Stock of the Company or any
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of its Restricted Subsidiaries or any securities convertible or exchangeable
into shares of Capital Stock of the Company or any of its Restricted
Subsidiaries, excluding any such shares of Capital Stock, options, warrants,
rights or securities which are owned by the Company or a Restricted Subsidiary
of the Company, (iii) make any Investment in (other than a Permitted
Investment), or make any payment on a guarantee of any obligation of, any
Person, other than the Company or a direct or indirect Wholly Owned Subsidiary
of the Company, or (iv) redeem, defease, repurchase, retire or otherwise acquire
or retire for value, prior to any scheduled maturity, repayment or sinking fund
payment, Subordinated Indebtedness (each of the transactions described in
clauses (i) through (iv) (other than any exception to any such clause) being a
"Restricted Payment"), if at the time thereof: (1) a Default or an Event of
Default shall have occurred and be continuing, or (2) upon giving effect to such
Restricted Payment, the Company could not Incur at least $1.00 of additional
Indebtedness pursuant to clause (i) of Section 4.04, or (3) upon giving effect
to such Restricted Payment, the aggregate of all Restricted Payments made on or
after the Issue Date exceeds the sum of: (a) 50% of cumulative Consolidated Net
Income of the Company (or, in the case cumulative Consolidated Net Income of the
Company shall be negative, less 100% of such deficit) since the Issue Date, plus
(b) 100% of the aggregate net proceeds received after the Issue Date, including
the fair market value of property other than cash (determined in good faith by
the Board of Directors of the Company as evidenced by a resolution of such Board
of Directors filed with the Trustee) from the issuance of, or equity
contribution with respect to, Capital Stock (other than Disqualified Stock) of
the Company and warrants, rights or options on Capital Stock (other than
Disqualified Stock) of the Company (other than in respect of any such issuance
to a Restricted Subsidiary of the Company) and the principal amount of
Indebtedness of the Company or any of its Restricted Subsidiaries that has been
converted into or exchanged for Capital Stock of the Company which Indebtedness
was Incurred after the Issue Date; plus (c) the excess of (x) 100% of the
aggregate net cash proceeds received on the Issue Date from the issuance of, or
the equity contribution with respect to, Capital Stock of the Company over (y)
$10,875,000; plus (d) 100% of the aggregate after-tax net cash proceeds, of the
sale or other disposition of any Investment constituting a Restricted Payment
made after the Issue Date; provided that any gain on the sale or disposition to
the extent included in this clause (d) shall not be included in determining
Consolidated Net Income for purposes of clause (a) above; provided, further,
that amounts included in this clause
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(d) shall not exceed the Net Investment by the Company in the asset so sold or
disposed.
The foregoing provision shall not be violated by (i) any dividend on
any class of Capital Stock of the Company or any of its Restricted Subsidiaries
paid within 60 days after the declaration thereof if, on the date when the
dividend was declared, the Company or such Restricted Subsidiary, as the case
may be, could have paid such dividend in accordance with the provisions of this
Indenture, (ii) the renewal, extension, refunding or refinancing of any
Indebtedness otherwise permitted pursuant to clause (v) of Section 4.04, (iii)
the exchange or conversion of any Indebtedness of the Company or any of its
Restricted Subsidiaries for or into Capital Stock of the Company (other than
Disqualified Stock), (iv) so long as no Default or Event of Default has occurred
and is continuing, any Investment made with the proceeds of a substantially
concurrent sale (other than in respect of any issuance to a Restricted
Subsidiary of the Company) for cash of Capital Stock of the Company (other than
Disqualified Stock); provided, however, that the proceeds of such sale of
Capital Stock, to the extent used in any such Investment, shall not be (and have
not been) included in subclause (b) of clause (3) of the preceding paragraph,
(v) the redemption, repurchase, retirement or other acquisition of any Capital
Stock of the Company in exchange for or out of the net cash proceeds of a
substantially concurrent sale (other than to a Restricted Subsidiary of the
Company) of Capital Stock of the Company (other than Disqualified Stock);
provided, however, that the proceeds of such sale of Capital Stock, to the
extent used for such redemption, repurchase, retirement or other acquisition or
retirement, shall not be (and have not been) included in subclause (b) of clause
(3) of the preceding paragraph, (vi) payments made to purchase, redeem or
otherwise acquire or retire for value shares of Capital Stock of the Company or
any of its Restricted Subsidiaries at no more than fair market value (determined
in good faith by the Board of Directors of the Company as evidenced by a
resolution of such Board of Directors filed with the Trustee) from present and
former officers and directors of the Company or any such Restricted Subsidiary
(other than F. Xxxxxxx Xxxxx, J. Xxxxxx XxXxxxx, Xxxxx X. Xxxxxxx and Xxxxxxx X.
Xxxxxx) in an amount not in excess of up to $2.0 million for each fiscal year
and $5.0 million in the aggregate, (vii) all payments, not exceeding $600,000 in
the aggregate, for each fiscal year, required to be made to Tekni-Plex Partners,
L.P. MST/TP Partners, L.P., MST Management, L.P., MST Partners L.P. or their
respective Affiliates or partners under the terms of existing agreements and
notes, (viii) so long as no Default or Event of Default has oc-
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curred and is continuing, the redemption, repurchase or retirement of
Subordinated Indebtedness of the Company in exchange for, by conversion into, or
out of the net proceeds of, a substantially concurrent sale or incurrence of
Subordinated Indebtedness (other than any Indebtedness owed to a Subsidiary) of
the Company that is contractually subordinated in right of payment to the
Securities to at least the same extent, and which has an Average Life at least
as long, in each case, as the subordinated Indebtedness being redeemed,
repurchased or retired, (ix) so long as no Default or Event of Default has
occurred and is continuing, Investments not otherwise permitted pursuant to the
clauses above up to $10.0 million in the aggregate, and (x) so long as no
Default or Event of Default has occurred and is continuing, Restricted Payments
not otherwise permitted pursuant to the clauses above up to $2.0 million in the
aggregate. Each Restricted Payment described in clauses (i) (to the extent not
already taken into account for purposes of computing the aggregate amount of all
Restricted Payments pursuant to clause 3 above), (iv), (vi), (vii), (ix) and (x)
of the previous sentence shall be taken into account for purposes of computing
the aggregate amount of all Restricted Payments pursuant to clause (3) of the
preceding paragraph.
For purposes of this Section 4.06, (i) an "Investment" shall be deemed
to have been made at the time any Restricted Subsidiary is designated as an
Unrestricted Subsidiary in an amount (proportionate to the Company's equity
interest in such Subsidiary) equal to the net worth of such Restricted
Subsidiary at the time that such Restricted Subsidiary is designated as an
Unrestricted Subsidiary; (ii) at any date the aggregate of all Restricted
Payments made as Investments since the Issue Date shall exclude and be reduced
by an amount (proportionate to the Company's equity interest in such Subsidiary)
equal to the net worth of an Unrestricted Subsidiary at the time that such
Unrestricted Subsidiary is designated a Restricted Subsidiary, not to exceed, in
the case of any such redesignation of an Unrestricted Subsidiary as a Restricted
Subsidiary, the amount of Investments previously made by the Company and the
Restricted Subsidiaries in such Unrestricted Subsidiary (in each case (i) and
(ii) "net worth" to be calculated based upon the fair market value of the assets
of such Subsidiary as of any such date of designation); and (iii) any property
transferred to or from an Unrestricted Subsidiary shall be valued at its fair
market value at the time of such transfer.
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SECTION 4.07. Corporate Existence.
Subject to Article Five, the Company shall do or shall cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership or other existence of each of its
Restricted Subsidiaries in accordance with the respective organizational
documents of each such Restricted Subsidiary and the rights (charter and
statutory) and material franchises of the Company and its Restricted
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right or franchise, or the corporate existence of any
Restricted Subsidiary, if the Board of Directors of the Company shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Restricted Subsidiaries, taken as a whole, and
that the loss thereof is not, and will not be, adverse in any material respect
to the Holders; provided, further, however, that a determination of the Board of
Directors of the Company shall not be required in the event of a merger of one
or more wholly-owned Subsidiaries of the Company with or into another
wholly-owned Subsidiary of the Company or another Person, if the surviving
Person is a wholly-owned Subsidiary of the Company organized under the laws of
the United States or a State thereof or of the District of Columbia.
SECTION 4.08. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary of the
Company or upon the income, profits or property of the Company or any Subsidiary
of the Company and (2) all lawful claims for labor, materials and supplies
which, in each case, if unpaid, might by law become a material liability, or
Lien upon the property, of the Company or any Subsidiary of the Company;
provided, however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings and for which appropriate provision has been made.
SECTION 4.09. Notice of Defaults.
(1) In the event that any Indebtedness of the Company or any of its
Restricted Subsidiaries is declared due and payable before its maturity
because of the occurrence
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of any default (or any event which, with notice or lapse of time, or both,
would constitute such a default) under such Indebtedness, the Company shall
promptly give written notice to the Trustee of such declaration, the status
of such default or event and what action the Company is taking or proposes
to take with respect thereto.
(2) Upon becoming aware of any Default or Event of Default, the Company
shall promptly deliver an Officers' Certificate to the Trustee specifying
the Default or Event of Default.
SECTION 4.10. Maintenance of Properties.
The Company shall cause all material properties owned by or leased to
it or any of its Restricted Subsidiaries and used or useful in the conduct of
its business or the business of any of its Restricted Subsidiaries to be
maintained and kept in normal condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary, so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section 4.10 shall prevent the Company
or any of its Restricted Subsidiaries from discontinuing the use, operation or
maintenance of any of such properties, or disposing of any of them, if such
discontinuance or disposal is, in the judgment of the Board of Directors or of
the board of directors of the Restricted Subsidiary concerned, or of an officer
(or other agent employed by the Company or of any of its Restricted
Subsidiaries) of the Company or such Restricted Subsidiary having managerial
responsibility for any such property, desirable in the conduct of the business
of the Company or any of its Restricted Subsidiaries, and if such discontinuance
or disposal is not adverse in any material respect to the Holders.
SECTION 4.11. Compliance Certificate.
The Company shall deliver to the Trustee within 100 days after the
close of each fiscal year a certificate signed by the principal executive
officer, principal financial officer or principal accounting officer stating
that a review of the activities of the Company has been made under the
supervision of the signing officers with a view to determining whether a Default
or Event of Default has occurred and whether or not the signers know of any
Default or Event of Default by the Company
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that occurred during such fiscal year. If they do know of such a Default or
Event of Default, the certificate shall describe all such Defaults or Events of
Default, their status and the action the Company is taking or proposes to take
with respect thereto. The first certificate to be delivered by the Company
pursuant to this Section 4.11 shall be for the fiscal year ending on or about
June 30, 1997.
SECTION 4.12. Provision of Financial Information.
Whether or not the Company is subject to Section 13(a) or 15(d) of the
Exchange Act, or any successor provision thereto, the Company shall file with
the Commission the annual reports, quarterly reports and other documents which
the Company would have been required to file with the Commission pursuant to
such Section 13(a) or 15(d), or any successor provision thereto if the Company
were so required, such documents to be filed with the Commission on or prior to
the respective dates (the "Required Filing Dates") by which the Company would
have been required so to file such documents if the Company were so required.
The Company shall also in any event (a) within 15 days of each Required Filing
Date (i) transmit by mail to all Holders of Securities, as their names and
addresses appear in the Security Register, without cost to such Holders, and
(ii) file with the Trustee, copies of the annual reports, quarterly reports and
other documents which the Company is required to file with the Commission
pursuant to the preceding sentence, and (b) if, notwithstanding the preceding
sentence, filing such documents by the Company with the Commission is not
permitted under the Exchange Act, promptly upon written request supply copies of
such documents to any prospective holder of Securities.
SECTION 4.13. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law or any usury law
or other law, which would prohibit or forgive the Company from paying all or any
portion of the principal of and/or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not hinder, delay or
impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the
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execution of every such power as though no such law had been enacted.
SECTION 4.14. Change of Control.
Within 30 days following the date of the consummation of a transaction
resulting in a Change of Control, the Company shall commence an Offer to
Purchase all outstanding Securities at a purchase price in cash equal to 101% of
their principal amount plus accrued interest to the Purchase Date. Such Offer to
Purchase will be consummated not earlier than 30 days and not later than 60 days
after the commencement thereof. Each Holder shall be entitled to tender all or
any portion of the Securities owned by such Holder pursuant to the Offer to
Purchase, subject to the requirement that any portion of a Security tendered
must be an integral multiple of $1,000 principal amount. A "Change of Control"
will be deemed to have occurred in the event that (whether or not otherwise
permitted by this Indenture) after the Issue Date (a) any Person or any Persons
acting together that would constitute a group (for purposes of Section 13(d) of
the Exchange Act, or any successor provision thereto) (a "Group"), together with
any Affiliates or Related Persons thereof, other than any such Person, Persons,
Affiliates or Related Parties who are Permitted Holders, shall "beneficially
own" (as defined in Rule 13d-3 under the Exchange Act, or any successor
provision thereto), directly or indirectly, at least (i) 50% of the voting power
of the outstanding Voting Stock of the Company or (ii) 40% of the voting power
of the outstanding Voting Stock of the Company, and the Permitted Holders own
less than such Person or Group (in doing the "own less than" comparison in this
clause (ii), the holdings of the Permitted Holders who are members of the new
Group shall not be counted in the shares held in the aggregate by Permitted
Holders); (b) any sale, lease or other transfer (in one transaction or a series
of related transactions) is made by the Company or any of its Restricted
Subsidiaries of all or substantially all of the consolidated assets of the
Company and its Restricted Subsidiaries to any Person; (c) the Company
consolidates with or merges with or into another Person or any Person
consolidates with, or merges with or into, the Company, in any such event
pursuant to a transaction in which immediately after the consummation thereof
Persons owning a majority of the Voting Stock of the Company immediately prior
to such consummation shall cease to own a majority of the Voting Stock of the
Company or the surviving entity if other than the Company; (d) Continuing
Directors cease to constitute at least a majority of the Board of Directors of
the Company; or (e) the stockholders of the Company approve any plan or proposal
for the
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liquidation or dissolution of the Company. In no event would the sale of common
stock of the Company to an underwriter or a group of underwriters in privity of
contract with the Company (or anybody in privity of contract with such
underwriters) be deemed to be a Change of Control or be deemed the acquisition
of more than 40% of the voting power of the outstanding Voting Stock of the
Company by a Person or any Group unless such common stock is not held in an
investment account in which case the investment account would be treated without
giving effect to the foregoing part of this sentence.
In the event that the Company makes an Offer to Purchase the
Securities, the Company shall comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and Rule
14e-1 under, the Exchange Act.
SECTION 4.15. Limitation on Senior Subordinated Indebtedness.
The Company shall not (i) directly or indirectly Incur any Indebtedness
that by its terms would expressly rank senior in right of payment to the
Securities and expressly rank subordinate in right of payment to any Senior Debt
and (ii) permit a Guarantor to, and no Guarantor shall, directly or indirectly
Incur any Indebtedness that by its terms would expressly rank senior in right of
payment to the Guarantee of such Guarantor and expressly rank subordinate in
right of payment to any Senior Debt of such Guarantor.
SECTION 4.16. Limitations Concerning Distributions and Transfers by
Restricted Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist any consensual encumbrance or restriction on the ability of any Restricted
Subsidiary of the Company to (i) pay, directly or indirectly, dividends or make
any other distributions in respect of its Capital Stock or pay any Indebtedness
or other obligation owed to the Company or any Restricted Subsidiary of the
Company, (ii) make loans or advances to the Company or any Restricted Subsidiary
of the Company or (iii) transfer any of its property or assets to the Company or
any Restricted Subsidiary of the Company, except for such encumbrances or
restrictions existing under or by reason of (a) any agreement in effect on the
Issue Date as any such agreement is in effect on such date, (b) the Credit
Agreement, (c) any agreement relating to any Indebtedness Incurred
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by such Restricted Subsidiary prior to the date on which such Restricted
Subsidiary was acquired by the Company and outstanding on such date and not
Incurred in anticipation or contemplation of becoming a Restricted Subsidiary
and provided such encumbrance or restriction shall not apply to any assets of
the Company or its Restricted Subsidiaries other than such Restricted
Subsidiary, (d) customary provisions contained in an agreement which has been
entered into for the sale or disposition of all or substantially all of the
Capital Stock or assets of a Restricted Subsidiary; provided, however, that such
encumbrance or restriction is applicable only to such Restricted Subsidiary or
assets, (e) an agreement effecting a renewal, exchange, refunding, amendment or
extension of Indebtedness Incurred pursuant to an agreement referred to in
clause (a) above; provided, however, that the provisions contained in such
renewal, exchange, refunding, amendment or extension agreement relating to such
encumbrance or restriction are no more restrictive in any material respect than
the provisions contained in the agreement that is the subject thereof in the
reasonable judgment of the Board of Directors of the Company as evidenced by a
resolution of such Board of Directors filed with the Trustee, (f) this
Indenture, (g) applicable law, (h) customary provisions restricting subletting
or assignment of any lease governing any leasehold interest of any Restricted
Subsidiary of the Company, (i) restrictions contained in Indebtedness permitted
to be incurred subsequent to the Issue Date pursuant to Section 4.04; provided
that any such restrictions are ordinary and customary with respect to the type
of Indebtedness incurred, (j) purchase money obligations for property acquired
in the ordinary course of business that impose restrictions of the type referred
to in clause (iii) of this Section 4.16 or (k) restrictions of the type referred
to in clause (iii) of this Section 4.16 contained in security agreements
securing Indebtedness of a Restricted Subsidiary of the Company to the extent
that such Liens were otherwise incurred in accordance with Section 4.18 and
restrict the transfer of property subject to such agreements.
SECTION 4.17. Limitation on Issuance and Sale of Capital Stock of Restricted
Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, (a) transfer, convey, sell or otherwise dispose of any shares
of Capital Stock of any Restricted Subsidiary of the Company (other than to the
Company or a Wholly Owned Subsidiary of the Company), except that the Company
and any such Restricted Subsidiary may, in any single transaction, sell all, but
not less than all, of the issued and
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outstanding Capital Stock of any such Restricted Subsidiary to any Person,
subject to complying with Section 4.05 and (b) issue shares of Capital Stock of
a Restricted Subsidiary of the Company (other than directors' qualifying
shares), or securities convertible into, or warrants, rights or options to
subscribe for or purchase shares of, Capital Stock of a Restricted Subsidiary of
the Company to any Person other than to the Company or a Wholly Owned Subsidiary
of the Company and other than to the holders of the Capital Stock of such
Restricted Subsidiary made pro rata to the relative amounts of such Capital
Stock held by such holders.
SECTION 4.18. Limitation on Liens.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, incur any Lien on or with respect to any property or assets of
the Company or such Restricted Subsidiary owned on the Issue Date or thereafter
acquired or on the income or profits thereof to secure Indebtedness, without
making, or causing any such Restricted Subsidiary to make, effective provision
for securing the Securities and all other amounts due under this Indenture (and,
if the Company shall so determine, any other Indebtedness of the Company or such
Restricted Subsidiary, including Subordinated Indebtedness; provided, however,
that Liens securing the Securities and any Indebtedness pari passu with the
Securities are senior to such Liens securing such Subordinated Indebtedness)
equally and ratably with such Indebtedness or, in the event such Indebtedness is
subordinate in right of payment to the Securities or the Guarantee, prior to
such Indebtedness, as to such property or assets for so long as such
Indebtedness shall be so secured.
The foregoing restrictions shall not apply to (i) Liens existing on the
Issue Date securing Indebtedness existing on the Issue Date; (ii) Liens securing
Senior Debt (including Liens securing Indebtedness outstanding under the Credit
Agreement) and any guarantees thereof to the extent that the Indebtedness
secured thereby is permitted to be incurred under Section 4.04; provided,
however, that Indebtedness under the Credit Agreement shall be deemed not to
have been Incurred in violation of such provisions for purposes of this clause
(ii) if the holder(s) of such Indebtedness or their agent or representative
shall have received a representation from the Company to the effect that the
Incurrence of such Indebtedness does not violate such provision; (iii) Liens
securing only the Securities and the Guarantees; (iv) Liens in favor of the
Company or a Guarantor; (v) Liens to secure Indebtedness Incurred for the
purpose of financing all or any part of the purchase
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price or the cost of construction or improvement of the property (or any other
capital expenditure financing) subject to such Liens; provided, however, that
(a) the aggregate principal amount of any Indebtedness secured by such a Lien
does not exceed 100% of such purchase price or cost, (b) such Lien does not
extend to or cover any other property other than such item of property and any
improvements on such item, (c) the Indebtedness secured by such Lien is Incurred
by the Company within 180 days of the acquisition, construction or improvement
of such property and (d) the Incurrence of such Indebtedness is permitted by
Section 4.04; (vi) Liens on property existing immediately prior to the time of
acquisition thereof (and not created in anticipation or contemplation of the
financing of such acquisition); (vii) Liens on property of a Person existing at
the time such Person is acquired or merged with or into or consolidated with the
Company or any such Restricted Subsidiary (and not created in anticipation or
contemplation thereof); (viii) Liens to secure Indebtedness Incurred to extend,
renew, refinance or refund (or successive extensions, renewals, refinancings or
refundings), in whole or in part, any Indebtedness secured by Liens referred to
in clauses (i)-(vii) and (ix)-(xii) of this paragraph so long as such Liens do
not extend to any other property and the principal amount of Indebtedness so
secured is not increased except for the amount of any premium required to be
paid in connection with such renewal, refinancing or refunding pursuant to the
terms of the Indebtedness renewed, refinanced or refunded or the amount of any
premium reasonably determined by the Company as necessary to accomplish such
renewal, refinancing or refunding by means of a tender offer, exchange offer or
privately negotiated repurchase, plus the expenses of the issuer of such
Indebtedness reasonably incurred in connection with such renewal, refinancing or
refunding; (ix) Liens in favor of the Trustee as provided for in this Indenture
on money or property held or collected by the Trustee in its capacity as
Trustee; (x) Liens securing a tax, assessment or other governmental charge or
levy or the claim of a materialman, mechanic, carrier, warehouseman or landlord
for labor, materials, supplies or rentals incurred in the ordinary course or
business; (xi) Liens consisting of a deposit or pledge made in the ordinary
course of business in connection with, or to secure payment of, obligations
under worker's compensation, unemployment insurance or similar legislation;
(xii) Liens arising pursuant to an order of attachment, distraint or similar
legal process arising in connection with legal proceedings; and (xiii) Liens
incurred in the ordinary course of business securing assets not having a fair
market value in excess of $500,000.
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SECTION 4.19. Future Guarantors.
The Company shall not create or acquire, nor permit any of its Domestic
Restricted Subsidiaries to create or acquire, any Domestic Restricted Subsidiary
after the Issue Date unless, at the time such Domestic Restricted Subsidiary has
either assets or stockholder's equity in excess of $25,000, such Domestic
Restricted Subsidiary (a) executes and delivers to the Trustee a supplemental
indenture in form reasonably satisfactory to the Trustee pursuant to which such
Domestic Restricted Subsidiary shall unconditionally guarantee all of the
Company's obligations under the Securities and this Indenture on the terms set
forth in Articles Eleven and Twelve and (b) delivers to the Trustee an Opinion
of Counsel that such supplemental indenture has been duly authorized, executed
and delivered by such Domestic Restricted Subsidiary and constitutes a legal,
valid, binding and enforceable obligation of such Domestic Restricted Subsidiary
(subject to customary exceptions).
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Restriction on Mergers, Consolidations and Certain Sales of
Assets.
The Company shall not consolidate or merge with or into any Person, or
sell, assign, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary of the Company to consolidate or merge with or into any
Person or sell, assign, 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 Restricted Subsidiaries), whether as an entirety or
substantially an entirety in one transaction or a series of related
transactions, including by way of liquidation or dissolution, to any Person
unless, in each such case: (i) the entity formed by or surviving any such
consolidation or merger (if other than the Company or such Restricted
Subsidiary, as the case may be), or to which such sale, assignment, lease,
conveyance or other disposition shall have been made (the "Surviving Entity"),
is a corporation organized and existing under the laws of the United States, any
state thereof or the District of Columbia; (ii) if there is a Surviving Entity,
the Surviving Entity assumes by supplemental indenture all of the obligations of
the Company on the Securities and under this Indenture; (iii) immediately after
giving effect to such transaction and the use of any net proceeds therefrom on a
pro forma basis, the Company or the Surviving
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Entity, as the case may be, (A) shall have a Consolidated Net Worth equal to or
greater than the Consolidated Net Worth of the Company immediately prior to such
transaction and (B) could Incur at least $1.00 of Indebtedness pursuant to
clause (i) of Section 4.04; (iv) immediately before and after giving effect to
such transaction and treating any Indebtedness which becomes an obligation of
the Company or any of its such Restricted Subsidiaries as a result of such
transaction as having been incurred by the Company or such Restricted
Subsidiary, as the case may be, at the time of the transaction, no Default or
Event of Default shall have occurred and be continuing; and (v) if, as a result
of any such transaction, property or assets of the Company or a Restricted
Subsidiary would become subject to a Lien not excepted from Section 4.18, the
Company, Restricted Subsidiary or the Surviving Entity, as the case may be,
shall have secured the Securities as required by Section 4.18. The provisions of
this paragraph shall not apply to any merger of a Restricted Subsidiary of the
Company with or into the Company or a Wholly Owned Subsidiary of the Company or
any transaction pursuant to which a Guarantor, is to be released in accordance
with the terms of the Guarantee and this Indenture in connection with any
transaction complying with Section 4.05.
SECTION 5.02. Successor Corporation Substituted.
Upon any consolidation of the Company or any Restricted Subsidiary of
the Company with, or merger of the Company or any such Restricted Subsidiary
into, any other Person or any sale, assignment, lease, conveyance or other
disposition of all or substantially all of the Company's consolidated assets (as
an entirety or substantially as an entirety in one transaction or a series of
related transactions, including by way of liquidation or dissolution) in
accordance with Section 5.01, upon the execution of a supplemental indenture by
the Surviving Person in form and substance satisfactory to the Trustee (as
evidenced by the Trustee's execution thereof), the Surviving Person shall
succeed to, and be substituted for, and may exercise every right and power of
and shall assume all obligations of, the Company or such Restricted Subsidiary,
as the case may be, under this Indenture and the Securities or the Guarantees,
as the case may be, with the same effect as if such Surviving Person had been
named as the Company or such Restricted Subsidiary, as the case may be, herein,
and thereafter, except in the case of a lease of all or substantially all of the
Company's consolidated assets, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities or the
Guarantees, as the case may be.
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In connection with any consolidation, merger or transfer of
assets contemplated by Section 5.01, the Company shall deliver, or cause to be
delivered, to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and the supplemental indenture in respect
thereof, if any, comply with Section 5.01 and that all conditions precedent
herein provided for relating to such transactions have been complied with.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" occurs if:
(1) the Company fails to pay principal of (or premium, if any,
on) any Security when due (whether or not prohibited by Article Eight
or Eleven);
(2) the Company fails to pay any interest on any Security when
due, and the default continues for 30 days (whether or not prohibited
by Article Eight or Eleven);
(3) the Company defaults in the payment of principal of and
interest on Securities required to be purchased pursuant to an Offer to
Purchase as described under Section 4.05 or 4.14 hereof when due and
payable (whether or not prohibited by Article Eight or Eleven);
(4) the Company fails to perform or comply with any of the
provisions of Section 5.01;
(5) the Company fails to perform any other covenant or
agreement of the Company under this Indenture or the Securities and the
default continues for 30 days after written notice to the Company by
the Trustee or holders of at least 25% in aggregate principal amount of
outstanding Securities;
(6) the Company defaults under the terms of one or more
instruments evidencing or securing Indebtedness of the Company or any
of its Restricted Subsidiaries having an outstanding principal amount
of $5.0 million or more individually or in the aggregate that has
resulted in the acceleration of the payment of such Indebtedness or the
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Company or any of its Restricted Subsidiaries fails to pay principal
when due at the stated maturity of any such Indebtedness;
(7) there shall have been rendered any final judgment or
judgments (not subject to appeal) against the Company or any of its
Restricted Subsidiaries in an amount of $5.0 million or more which
remain undischarged or unstayed for a period of 60 days after the date
on which the right to appeal has expired;
(8) the Company or any of its Material Subsidiaries
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief
against it in an involuntary case or proceeding,
(C) consents to the appointment of a Custodian of
it or for all or substantially all of its property, or
(D) makes a general assignment for the benefit of
its creditors;
(9) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Material Subsidiary in an involuntary case or proceeding,
(B) appoints a Custodian of the Company or any
Material Subsidiary or for all or substantially all of its
property, or
(C) orders the liquidation of the Company or any
Material Subsidiary,
and in each case the order or decree remains unstayed and in effect for
60 days; provided, however, that if the entry of such order or decree
is appealed and dismissed on appeal then the Event of Default hereunder
by reason of the entry of such order or decree shall be deemed to have
been cured; or
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(10) any Guarantee ceases to be in full force and effect or is
declared null and void and unenforceable or found to be invalid or any
Guarantor denies its liability under its Guarantee (other than by
reason of a release of such Guarantor from its Guarantee in accordance
with the terms of this Indenture and the Guarantee).
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal, state or foreign law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, sequestrator or
similar official under any Bankruptcy Law.
SECTION 6.02. Acceleration.
If an Event of Default with respect to the Securities (other
than an Event of Default with respect to the Company described in clause (8) or
(9) of Section 6.01) shall occur and be continuing, the Trustee or the Holders
of at least 25% in aggregate principal amount of the outstanding Securities may
accelerate the maturity of all Securities; provided, however, that after such
acceleration, but before a judgment or decree based on acceleration, the Holders
of a majority in aggregate principal amount of outstanding Securities may, under
certain circumstances, rescind and annul such acceleration if all Events of
Default, other than the non-payment of accelerated principal, have been cured or
waived as provided in this Indenture; and provided, further, that so long as the
Credit Agreement shall be in full force and effect, if an Event of Default shall
have occurred and be continuing (other than as specified in clauses (8) or (9)
above), the Securities shall not become due and payable until the earlier to
occur of (x) five business days following delivery of a written notice of such
acceleration of the Securities to the agent under the Credit Agreement, if such
an Event of Default has not been cured prior to such fifth business day and (y)
the acceleration of any Indebtedness under the Credit Agreement. If an Event of
Default specified in clause (8) or (9) of Section 6.01 with respect to the
Company occurs, the outstanding Securities will ipso facto become immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holder.
After a declaration of acceleration, but before a judgment or
decree of the money due in respect of the Securities has been obtained, the
Holders of not less than a majority in aggregate principal amount of the
Securities then outstanding by written notice to the Trustee may rescind an
acceleration and its consequences if all existing Events of Default
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(other than the nonpayment of principal of and interest on the Securities which
has become due solely by virtue of such acceleration) have been cured or waived
and if the rescission would not conflict with any judgment or decree. No such
rescission shall affect any subsequent Default or impair any right consequent
thereto.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy maturing 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 Default.
Subject to Sections 2.09, 6.07 and 10.02, prior to the
declaration of acceleration of the Securities, the Holders of not less than a
majority in aggregate principal amount of the outstanding Securities by written
notice to the Trustee may waive an existing Default or Event of Default and its
consequences, except a Default in the payment of principal of or interest on any
Security as specified in clauses (1) and (2) of Section 6.01 or a Default in
respect of any term or provision of this Indenture that may not be amended or
modified without the consent of each Holder affected as provided in Section
10.02. 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. In case of any such waiver, the Company, the
Trustee and the Holders shall be restored to their former positions and rights
hereunder and under the Securities, respectively. This paragraph of this Section
6.04 shall be in lieu of Section 316(a)(1)(B) of the TIA and such Section
316(a)(1)(B) of the TIA is hereby expressly excluded from this Indenture and the
Securities, as permitted by the TIA.
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Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred
for every purpose of this Indenture and the Securities, but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.
SECTION 6.05. Control by Majority.
Subject to Section 2.09, the Holders of a majority in
principal amount of the outstanding Securities 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. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture, that the
Trustee determines may be unduly prejudicial to the rights of another
Securityholder, or that may involve the Trustee in personal liability; provided,
however, that the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction. In the event the Trustee takes
any action or follows any direction pursuant to this Indenture, the Trustee
shall be entitled to indemnification satisfactory to it in its sole discretion
against any loss or expense caused by taking such action or following such
direction. This Section 6.05 shall be in lieu of Section 316(a)(1)(A) of the
TIA, and such Section 316(a)(1)(A) of the TIA is hereby expressly excluded from
this Indenture and the Securities, as permitted by the TIA.
SECTION 6.06. Limitation on Suits.
A Securityholder may not pursue any remedy with respect to
this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal amount
of the outstanding Securities make a written request to the Trustee to
pursue a remedy;
(3) such Holder or Holders offer and, if requested, provide to
the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
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(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the outstanding Securities (excluding Affiliates of
the Company) do not give the Trustee a direction which, in the opinion
of the Trustee, is inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over such
other Securityholder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of and interest on the
Security, on or after the respective due dates expressed in the Security, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of interest or principal
specified in Section 6.01(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any other obligor on the Securities for the whole amount of principal
and accrued interest remaining unpaid, together with interest overdue on
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 Securities and such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
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
Securityholders allowed in any judicial proceedings relative to the Company (or
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any other obligor upon the Securities), its creditors or its property and shall
be entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same, and any
Custodian in any such judicial proceedings is hereby authorized by each
Securityholder 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
Securityholders, 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 Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Securityholder 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
Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal and interest, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix
a record date and payment date for any payment to Securityholders pursuant to
this Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
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reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 shall not apply to a suit by the Trustee, a suit by
a Holder or group of Holders of more than 10% in aggregate principal amount of
the outstanding Securities, or to any suit instituted by any Holder for the
enforcement or the payment of the principal or interest on any Securities on or
after the respective due dates expressed in the Security.
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
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee shall not be liable except for the performance
of such duties as are specifically set forth herein; and
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions 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 (but
need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(c) The Trustee shall 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 Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) 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 have reasonable grounds for believing that repayment of such
funds is not assured to it or it does not receive an indemnity satisfactory to
it in its sole discretion 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 paragraphs (a), (b), (c) and (d) of this Section
7.01.
(f) The Trustee shall not be liable for interest on any money
or assets received by it except as the Trustee may agree with the Company. Money
or assets held in trust by the Trustee need not be segregated from other funds
or assets except to the extent required by law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may request and conclusively rely on any
document believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate any
fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers' Certificate and an
Opinion of Counsel, which shall conform to the provisions of Section
13.05. 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.
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(c) The Trustee may act through attorneys and agents of its
selection and shall not be responsible for the misconduct or negligence
of any agent or attorney (other than an agent who is an employee of the
Trustee) appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers.
(e) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Securityholders pursuant to this Indenture,
unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction.
(f) 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.
(g) The Trustee shall not be deemed to have knowledge of any
Default or Event of Default except (i) any Event of Default occurring
pursuant to clause (1) or (2) of Section 6.01 hereof or (ii) any
Default or Event of Default of which the Trustee shall have received
notification or obtained actual knowledge.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights. However, the Trustee is subject to
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
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or the Securities, it shall not be accountable for the Company's use of the
proceeds from the Securities, and it shall not be responsible for any statement
of the Company in this Indenture or any document issued in connection with the
sale of Securities or any statement in the Securities other than the Trustee's
certificate of authentication.
SECTION 7.05. Notice of Defaults.
If a Default or an Event of Default occurs and is continuing
and the Trustee knows of such Defaults or Events of Default, the Trustee shall
mail to each Securityholder notice of the Default or Event of Default within 30
days after the occurrence thereof; provided however, that, except in the case of
an Event of Default or a Default in payment with respect to the Securities or a
Default or Event of Default complying with Section 5.01, the Trustee shall be
protected in withholding such notice if and so long as the Board of Directors or
responsible officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders.
SECTION 7.06. Reports by Trustee to Holders.
If required by TIA Section 313(a), within 60 days after each
June 30 beginning with the June 30 following the date of this Indenture, the
Trustee shall mail to each Securityholder a report dated as of such June 30 that
complies with TIA Section 313(a). The Trustee also shall comply with TIA Section
313(b), (c) and (d).
A copy of each such report at the time of its mailing to
Securityholders shall be filed with the Commission and each stock exchange, if
any, on which the Securities are listed.
The Company shall promptly notify the Trustee in writing if
the Securities 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 as the Company and the Trustee shall from time to time agree in
writing for its services. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable disbursements, expenses
and advances (including fees, disbursements and expenses of its agents and
counsel) incurred or made by it in
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addition to the compensation for its services except any such disbursements,
expenses and advances as may be attributable to the Trustee's negligence or bad
faith. Such expenses shall include the reasonable 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 9.01
hereof.
The Company shall indemnify the Trustee and its agents for,
and hold them harmless against any and all loss, damage, claims, liability or
expense, including taxes (other than franchise taxes imposed on the Trustee and
taxes based upon, measured by or determined by the income of the Trustee),
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of enforcing this
Indenture against the Company (including Section 7.07) and of defending itself
against any claim (whether asserted by any Securityholder or the Company) or
liability in connection with the exercise or performance of any of their powers
or duties hereunder, except to the extent that such loss, damage, claim,
liability or expense is due to their own negligence or bad faith. 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. 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; provided, however,
that the Company's reimbursement obligation with respect to counsel employed by
the Trustee will be limited to the reasonable fees and expenses of a single
counsel. The Company need not pay for any settlement made without its written
consent, which consent shall not be unreasonably withheld. 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.
To secure the Company's payment obligations in this Section
7.07, the Trustee shall have a Lien prior to the Securities 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 or interest on particular
Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(8) or (9) occurs, the expenses
(including the reasonable fees and expenses of its agents and counsel) and the
compensation for the
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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 Nine 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
Securities may remove the Trustee by so notifying the Trustee and the Company 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 a bankrupt or an insolvent under
any Bankruptcy Law;
(3) a custodian or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. As promptly as
practicable after that, 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, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have the rights, powers and duties of
the Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Securityholder.
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If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in principal amount of the outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07, to the extent
incurred, 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 or banking corporation, the resulting, surviving or transferee
corporation or banking corporation without any further act shall be the
successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee which shall be
eligible to act as Trustee under TIA Sections 310(a)(1) and 310(a)(5). The
Trustee (or in the case of a corporation included in a bank holding company, the
related bank holding company) shall have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of
condition. If the Trustee has or shall acquire any "conflicting interest" within
the meaning of TIA Section 310(b), the Trustee and the Company shall comply with
the provisions of TIA Section 310(b); provided, however, that there shall be
excluded from the operation of TIA Section 310(b)(1) any indenture or indentures
under which other securities, or certificates of interest or participation in
other securities, of the Company are outstanding, if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee shall resign immediately in the manner and with the effect
hereinbefore specified in this Article Seven.
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SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
ARTICLE EIGHT
SUBORDINATION OF SECURITIES
SECTION 8.01. Securities Subordinated to Senior Debt.
The Company covenants and agrees, and the Trustee and each
Holder by acceptance of the Securities likewise covenants and agrees, that all
Securities shall be issued subject to the provisions of this Article; and each
person holding any Security, whether upon original issue or upon transfer,
assignment or exchange thereof, accepts and agrees that all payments of the
principal of (and premium, if any) and interest on the Securities by the Company
and any claims arising out of or with respect to this Indenture shall, to the
extent and in the manner set forth in this Article, be subordinated and junior
in right of payment to the prior payment in full of all Senior Debt of the
Company.
SECTION 8.02. No Payment on Securities in Certain Circumstances.
(a) No payment by or on behalf of the Company of the principal
of, premium, if any, or interest on the Securities, or any payment to acquire
any of the Securities for cash, property or securities, or any distribution with
respect to the Securities of any kind or character, whether in cash, property or
securities, by set-off or otherwise (all such payments and distributions
referred to individually and collectively as a "Securities Payment"), whether
pursuant to the terms of the Securities or upon acceleration or otherwise, will
be made if, at the time of such payment, there exists a default in the payment
of all or any portion of the obligations on any Designated Senior Debt, whether
at maturity, on account of mandatory redemption or prepayment, acceleration or
otherwise (but if the Trustee is otherwise able to make such Securities Payment,
only insofar as the Trustee is concerned, if the Trustee has received written
notice of such default), and such default shall not have been cured or waived or
the benefits of this sentence waived by or on behalf of the holders of such
Designated Senior
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Debt. In addition, during the continuance of any non-payment default or
non-payment event of default with respect to any Designated Senior Debt pursuant
to which the maturity thereof may be accelerated, and upon receipt by the
Trustee of notice (a "Payment Blockage Notice") from a holder or holders of such
Designated Senior Debt or the trustee or agent acting on behalf of such
Designated Senior Debt, then, unless and until such default or event of default
has been cured or waived or has ceased to exist or such Designated Senior Debt
has been discharged or repaid in full in cash or cash equivalents or otherwise
in a form satisfactory to the holders of such Designated Senior Debt, no
Securities Payment will be made by or on behalf of the Company, except from
those funds held in trust for purposes of defeasance for the benefit of the
Holders of any Securities to such Holders, during a period (a "Payment Blockage
Period") commencing on the date of receipt of such Payment Blockage Notice by
the Trustee and ending 179 days thereafter. Notwithstanding anything herein to
the contrary, (x) in no event will a Payment Blockage Period extend beyond 179
days from the date of the Payment Blockage Notice in respect thereof was given
and (y) there must be 180 days in any 365 day period during which no Payment
Blockage Period is in effect. Not more than one Payment Blockage Period may be
commenced with respect to the Securities during any period of 365 consecutive
days. No default or event of default that existed or was continuing on the date
of commencement of any Payment Blockage Period with respect to the Designated
Senior Debt initiating such Payment Blockage Period may be, or be made, the
basis for the commencement of any other Payment Blockage Period by the holder or
holders of such Designated Senior Debt or the trustee or agent acting on behalf
of such Designated Senior Debt, whether or not within a period of 365
consecutive days, unless such default or event of default has been cured or
waived for a period of not less than 90 consecutive days.
(b) In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any Holder when such payment is
prohibited by Section 8.02(a), such payment shall be held for the benefit of,
and shall be paid over or delivered to, the holders of Designated Senior Debt or
their respective representatives, or to the trustee or trustees under any
indenture pursuant to which any of such Designated Senior Debt may have been
issued, as their respective interests may appear, but only to the extent that,
upon notice from the Trustee to the holders of Designated Senior Debt that such
prohibited payment has been made, the holders of the Designated Senior Debt (or
their representative or representatives or a trustee) notify the Trustee in
writing of the amounts then due and
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owing on the Designated Senior Debt, if any, and only the amounts specified in
such notice to the Trustee shall be paid to the holders of Designated Senior
Debt.
SECTION 8.03. Payment Over of Proceeds upon Dissolution, etc.
(a) Upon any payment or distribution of assets or securities
of the Company of any kind or character, whether in cash, property or
securities, upon any dissolution or winding up or total or partial liquidation
or reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due or to
become due with respect to Senior Debt of the Company (including any interest
accruing on or after, or which would accrue but for, an event of bankruptcy,
regardless of whether such interest is an allowed claim enforceable against the
debtor under the Bankruptcy Code) shall first be paid in full, or payment
provided for, in either case in cash or cash equivalents or otherwise in a form
satisfactory to the holders of Senior Debt, before the Holders of the Securities
or the Trustee on behalf of such Holders shall be entitled to receive any
Securities Payment. Before any payment may be made by, or on behalf of, the
Company of the principal of, premium, if any, or interest on the Securities upon
any such dissolution or winding up or liquidation or reorganization, any payment
or distribution of assets or securities of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of the Securities
or the Trustee on their behalf would be entitled, but for the subordination
provisions of this Indenture, shall be made by the Company or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution, directly to the holders of Senior Debt of the Company
(pro rata to such holders on the basis of the respective amounts of Senior Debt
held by such holders) or their representatives or to the trustee or trustees
under any indenture pursuant to which any such Senior Debt may have been issued
as their respective interests may appear, to the extent necessary to pay all
such Senior Debt in full in cash or cash equivalents or otherwise in a form
satisfactory to the holders of such Senior Debt after giving effect to any
concurrent payment, distribution or provision therefor to or for the holders of
such Senior Debt.
(b) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of assets
or securities of the Company of any kind or character, whether in cash, property
or securities,
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shall be received by the Trustee or any Holder of Securities at a time when such
payment or distribution is prohibited by Section 8.03(a) and before all
obligations in respect of Senior Debt are paid in full, or payment provided for,
such payment or distribution shall be received and held for the benefit of, and
shall be paid over or delivered to, the holders of Senior Debt or their
respective representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of Senior Debt
remaining unpaid until all such Senior Debt has been paid in full after giving
effect to any concurrent payment, distribution or provision therefor to or for
the holders of such Senior Debt.
The consolidation of the Company with, or the merger of the
Company with or into, another corporation or the liquidation or dissolution of
the Company following the conveyance or transfer of its property as an entirety,
or substantially as an entirety, to another corporation upon the terms and
conditions provided in Article Five shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section if
such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article Five.
SECTION 8.04. Subrogation.
Upon the payment in full of all Senior Debt of the Company, or
provision for payment, the Holders of the Securities shall be subrogated to the
extent of the payments or distributions made to the holders of such Senior Debt
pursuant to the provisions of this Article to the rights of the holders of such
Senior Debt to receive payments or distributions of cash, property or securities
of the Company made on such Senior Debt until the principal of and interest on
the Securities shall be paid in full; and, for the purposes of such subrogation,
no payments or distributions to the holders of the Senior Debt of any cash,
property or securities to which the Holders of the Securities or the Trustee on
their behalf would be entitled except for the provisions of this Article, and no
payment over pursuant to the provisions of this Article to the holders of Senior
Debt by Holders of the Securities or the Trustee on their behalf shall, as
between the Company, its creditors other than holders of Senior Debt, and the
Holders of the Securities, be deemed to be a payment by the Company to or on
account of the Senior Debt. It is understood that the provisions of this Article
are and are intended solely for the purpose of defining the relative rights of
the Holders of the Securities, on the
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one hand, and the holders of the Senior Debt, on the other hand.
If any payment or distribution to which the Holders of the
Securities would otherwise have been entitled but for the provisions of this
Article shall have been applied, pursuant to the provisions of this Article, to
the payment of all amounts payable under Senior Debt, then and in such case, the
Holders of the Securities shall be entitled to receive from the holders of such
Senior Debt any payments or distributions received by such holders of Senior
Debt in excess of the amount required to make payment in full, or provision for
payment, of such Senior Debt.
SECTION 8.05. Obligations of Company Unconditional.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among the
Company and the Holders of the Securities, the obligation of the Company, which
is absolute and unconditional, to pay to the Holders of the Securities the
principal of and interest on the Securities as and when the same shall become
due and payable in accordance with their terms, or is intended to or shall
affect the relative rights of the Holders of the Securities and creditors of the
Company other than the holders of the Senior Debt, nor shall anything herein or
therein prevent the Holder of any Security or the Trustee on their behalf from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article of the holders
of the Senior Debt in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
Without limiting the generality of the foregoing, nothing
contained in this Article shall restrict the right of the Trustee or the Holders
of Securities to take any action to declare the Securities to be due and payable
prior to their stated maturity pursuant to Section 6.01 or to pursue any rights
or remedies hereunder; provided, however, that all Senior Debt then due and
payable shall first be paid in full before the Holders of the Securities or the
Trustee are entitled to receive any direct or indirect payment from the Company
of principal of or interest on the Securities.
SECTION 8.06. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit
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the making of any payment to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article. The Trustee shall not be charged
with knowledge of the existence of any default or event of default with respect
to any Senior Debt or of any other facts which would prohibit the making of any
payment to or by the Trustee unless and until the Trustee shall have received
notice in writing at its Corporate Trust Office to that effect signed by an
Officer of the Company, or by a holder of Senior Debt or trustee or agent
therefor; and prior to the receipt of any such written notice, the Trustee
shall, subject to Article Seven, be entitled to assume that no such facts exist;
provided that if the Trustee shall not have received the notice provided for in
this Section 8.06 at least two Business Days prior to the date upon which by the
terms of this Indenture any moneys shall become payable for any purpose
(including, without limitation, the payment of the principal of or interest on
any Security), then, regardless of anything herein to the contrary, the Trustee
shall have full power and authority to receive any moneys from the Company and
to apply the same to the purpose for which they were received, and shall not be
affected by any notice to the contrary which may be received by it on or after
such prior date. Nothing contained in this Section 8.06 shall limit the right of
the holders of Senior Debt to recover payments as contemplated by Section 8.02
or 8.03. The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself or itself to be a holder of any
Senior Debt (or a trustee on behalf of, or other representative of, such holder)
to establish that such notice has been given by a holder of such Senior Debt or
a trustee or representative on behalf of any such holder.
In the event that the Trustee determines in good faith that
any evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
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SECTION 8.07. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets or securities
referred to in this Article, the Trustee and the Holders of the Securities shall
be entitled to rely upon any order or decree made by any court of competent
jurisdiction in which bankruptcy, dissolution, winding-up, liquidation or
reorganization proceedings are pending, or upon a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution, delivered to the Trustee or to the Holders of the
Securities for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Debt and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 8.08. Trustee's Relation to Senior Debt.
The Trustee and any Paying Agent shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt which may at
any time be held by it in its individual or any other capacity to the same
extent as any other holder of Senior Debt, and nothing in this Indenture shall
deprive the Trustee or any Paying Agent of any of its rights as such holder.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt.
SECTION 8.09. Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Debt.
No right of any present or future holders of any Senior Debt
to enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be charged with.
The provisions of this Ar-
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ticle are intended to be for the benefit of, and shall be enforceable directly
by, the holders of Senior Debt.
SECTION 8.10. Securityholders Authorize Trustee To Effectuate
Subordination of Securities.
Each Holder of Securities by his acceptance of such Securities
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article, and appoints the Trustee his attorney-in-fact for such purposes,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or upon a general assignment for the
benefit of creditors or otherwise) tending towards liquidation of the business
and assets of the Company, the filing of a claim for the unpaid balance of its
or his Securities in the form required in those proceedings.
SECTION 8.11. This Article Not To Prevent Events of Default.
The failure to make a payment on account of principal of or
interest on the Securities by reason of any provision of this Article shall not
be construed as preventing the occurrence of an Event of Default specified in
clause (1), (2) or (3) of Section 6.01.
SECTION 8.12. Trustee's Compensation Not Prejudiced.
Nothing in this Article shall apply to amounts due to the
Trustee pursuant to Section 7.07.
SECTION 8.13. No Waiver of Subordination Provisions.
Without in any way limiting the generality of Section 8.09,
the holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without impairing
or releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of Senior Debt, do any
one or more of the following: (a) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter, Senior Debt or any
instrument evidencing the same or any agreement under which Senior Debt is
outstanding or secured; (b) sell, exchange, release
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or otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Debt; (c) release any Person liable in any manner for the collection of
Senior Debt; and (d) exercise or refrain from exercising any rights against the
Company and any other Person.
SECTION 8.14. Subordination Provisions Not Applicable to Money Held in
Trust for Securityholders; Payments May Be Paid Prior to
Dissolution.
All money and United States Government Obligations deposited
in trust with the Trustee pursuant to and in accordance with Article Nine shall
be for the sole benefit of the Holders and shall not be subject to this Article
Eight.
Nothing contained in this Article or elsewhere in this
Indenture shall prevent (i) the Company, except under the conditions described
in Section 8.02, from making payments of principal of and interest on the
Securities, or from depositing with the Trustee any moneys for such payments or
from effecting a termination of the Company's and the Guarantors' obligations
under the Securities and this Indenture as provided in Article Nine, or (ii) the
application by the Trustee of any moneys deposited with it for the purpose of
making such payments of principal of and interest on the Securities, to the
Holders entitled thereto unless at least two Business Days prior to the date
upon which such payment becomes due and payable, the Trustee shall have received
the written notice provided for in Section 8.02(b) or in Section 8.06. The
Company shall give prompt written notice to the Trustee of any dissolution,
winding-up, liquidation or reorganization of the Company.
SECTION 8.15. Acceleration of Securities.
If payment of the Securities is accelerated because of an
Event of Default, the Company shall promptly notify holders of the Senior Debt
of the acceleration.
ARTICLE NINE
DISCHARGE OF INDENTURE
SECTION 9.01. Termination of Company's Obligations.
(a) Discharge. Subject to the provisions of Article Eight, the
Company may terminate its substantive obligations and the substantive
obligations of the Guarantors, in respect of the Securities by delivering all
outstanding Securities to
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the Trustee for cancellation and paying all sums payable by the Company on
account of principal of, premium, if any, and interest on all the Securities.
(b) Defeasance. Subject to the provisions of Sections 9.02
and 9.03 below, the Company may:
(i) Covenant Defeasance. terminate its obligations under
Section 4.03 through 4.19 and Article Five (a "Covenant Defeasance") by
(A) satisfying the conditions specified in Section 9.02 and (B)
delivering to the Trustee an Opinion of Counsel confirming that the
Holders will not recognize income, gain or loss for federal income tax
purposes as a result of the Covenant Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if no Covenant Defeasance had
been effected; or
(ii) Legal Defeasance. terminate all of its substantive
obligations under the Indenture (other than those set forth in Section
9.03(a) (a "Legal Defeasance") by (A) satisfying the conditions
specified in Section 9.02 and (B) delivering to the Trustee an Opinion
of Counsel confirming that (I) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling or (II)
since the date of this Indenture there has been a change in the
applicable federal income tax law, in either case to the effect that
the Holders will not recognize income, gain or loss for federal income
tax purposes as a result of Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if no Legal Defeasance had been
effected.
SECTION 9.02. Conditions Precedent to Termination .
In order to effect either a Covenant Defeasance or Legal
Defeasance, the following conditions must be satisfied:
(i) the Company shall have deposited with the Trustee, under
the terms of an irrevocable trust agreement, money or direct
non-callable obligations of the United States of America for the
payment of which its full faith and credit is pledged ("United States
Government Obligations") sufficient (without reinvestment) to pay all
remaining indebtedness on the Securities (a "Defeasance Deposit");
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(ii) no Default shall have occurred and be continuing or
could arise as a result of the Defeasance Deposit (or with respect to a
Default or Event of Default specified in clause (8) or (9) of Section
6.01, any time on or prior to the 91st calendar day after the date of
the Defeasance Deposit (it being understood that this condition shall
not be deemed satisfied until after such 91st day)) and no default
under any Senior Debt would result therefrom;
(iii) the Defeasance Deposit shall not be prohibited at the
time it is made by the provisions of Article Eight of this Indenture or
any covenants in the instruments governing Senior Debt and the Company
shall have delivered to the Trustee and any Paying Agent an Officers'
Certificate to that effect; and
(iv) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that (A)
the Defeasance Deposit will not result in any of the Company, the
Trustee or the trust created by such deposit being deemed to be an
"investment company" under the Investment Company Act of 1940, as
amended, and (B) all conditions precedent relating to either the Legal
Defeasance or the Covenant Defeasance, as the case may be, have been
complied with.
SECTION 9.03. Survival of Certain Obligations of the Company.
(a) Survival of Obligations. In effecting either a Covenant
Defeasance or a Legal Defeasance, the Company's obligations contained in
Sections 2.03, 2.05, 2.06, 2.07, 4.02, 7.07, 7.08, this Section 9.03 and Section
9.04(c), and in addition, in effecting a Covenant Defeasance, the Company's
obligations contained in Section 4.01, shall survive until the Securities are no
longer outstanding. Thereafter the Company's obligations in Section 7.07, this
Section 9.03 and Section 9.04(c) shall survive.
(b) Taxes. The Company shall pay any taxes or other expenses
incurred by any trust created pursuant to this Article Nine.
(c) Reinstatement. If the Trustee is unable to apply the
Defeasance Deposit in accordance with Section 9.02 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Securities shall be revived
and re-
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instated as though no deposit had occurred pursuant to Section 9.02 until such
time as the Trustee is permitted to apply the Defeasance Deposit in accordance
with Section 9.02; provided that if the Company has made any payment of interest
on or principal of any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the Defeasance Deposit held by the
Trustee.
SECTION 9.04. Trustee's Obligations upon Termination .
(a) Acknowledgment. The Trustee upon a Company Request shall
acknowledge in writing the discharge of the Company's and the Guarantor's (if
any) obligations under the Securities, the Guarantee and this Indenture other
than those obligations specified in Section 9.03.
(b) Application of Trust Money. The Trustee shall hold the
Defeasance Deposit pursuant to Section 9.02, and shall apply the Defeasance
Deposit in accordance with this Article Nine solely to the payment of the
principal of, premium, if any, and interest on the Securities.
(c) Repayment to the Company. Subject to Sections 7.07 and
9.03, the Trustee shall promptly pay to the Company upon request any excess
money held by it at any time. The Trustee shall pay to the Company upon written
request any money held by it for the payment of principal or interest that
remains unclaimed for two years; provided, however, that the Trustee before
being required to make any payment may at the expense of the Company cause to be
published once in a newspaper of general circulation in the City of New York or
to be mailed 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, Holders entitled to such money must look to the Company
for payment as general creditors unless an applicable law designates another
person and all liability of the Trustee with respect to such money shall
thereupon cease.
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ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders.
The Company and the Guarantors and the Trustee may amend or
supplement this Indenture or the Securities without notice to or consent of any
Securityholder:
(i) to cure any ambiguity, defect or inconsistency;
provided, however, that such amendment or supplement does not adversely
affect the rights of any Holder in any material respect;
(ii) to effect the assumption by a successor Person of all
obligations of the Company under the Securities and this Indenture in
connection with any transaction complying with Article Five of this
Indenture;
(iii) to provide for uncertificated Securities in addition
to or in place of certificated Securities;
(iv) to comply with any requirements of the Commission in
order to effect or maintain the qualification of this Indenture under
the TIA;
(v) to make any change that would provide any additional
benefit or rights to the Holders;
(vi) to make any other change that does not adversely
affect the rights of any Holder under this Indenture;
(vii) to evidence the succession of another Person to any
Guarantor and the assumption by any such successor of the covenants of
such Guarantor herein and in the Guarantee;
(viii) to add to the covenants of the Company or the
Guarantors for the benefit of the Holders, or to surrender any right or
power herein conferred upon the Company or any Guarantor;
(ix) to secure the Securities pursuant to the requirements
of Section 4.18 or otherwise; or
(x) to reflect the release of a Guarantor from its
obligations with respect to its Guarantee in accordance
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with the provisions of Section 11.03 and to add a Guarantor pursuant to
the requirements of Section 11.07;
provided, however, that the Company has delivered to the Trustee an Opinion of
Counsel and an Officers' Certificate each stating that such amendment or
supplement complies with the provisions of this Section 10.01.
SECTION 10.02. With Consent of Holders.
The Company, the Guarantors, if any, and the Trustee may amend
or supplement this Indenture or the Securities with the written consent of the
Holders of at least a majority in principal amount of the outstanding
Securities. However, without the consent of each Holder affected, an amendment,
supplement or waiver may not:
(1) change the Stated Maturity of the principal of or any
installment of interest on any Security or alter the optional
redemption or repurchase provisions of any Security or this Indenture
in a manner adverse to the Holders of the Securities;
(2) reduce the principal amount of (or the premium) of any
Security;
(3) reduce the rate of or extend the time for payment of
interest on any Security;
(4) change the place or currency of payment of principal of
(or premium) or interest on any Security;
(5) modify any provisions of this Indenture relating to the
waiver of past defaults (other than to add sections of this Indenture
subject thereto) or the right of the Holders to institute suit for the
enforcement of any payment on or with respect to any Security or the
Guarantee, or the modification and amendment of this Indenture and the
Securities (other than to add sections of this Indenture or the
Securities which may not be amended, supplemented or waived without the
consent of each Holder affected);
(6) reduce the percentage of the principal amount of
outstanding Securities necessary for amendment to or waiver of
compliance with any provision of this Indenture or the Securities or
for waiver of any Default;
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(7) waive a default in the payment of principal of, interest
on, or redemption payment with respect to, any Security (except a
recision of acceleration of the Securities by the Holders as provided
in this Indenture and a waiver of the payment default that resulted
from such acceleration);
(8) modify the ranking or priority of the Securities or the
Guarantee, or modify the definition of Senior Debt or Designated Senior
Debt or amend or modify the subordination provisions of this Indenture
in any manner adverse to the Holders;
(9) release the Guarantors from any of their respective
obligations under the Guarantee or this Indenture otherwise than in
accordance with this Indenture; or
(10) modify the provisions relating to any Offer to Purchase
required under Section 4.05 or Section 4.14 in a manner materially
adverse to the Holders of Securities with respect to any Asset
Disposition that has been consummated or Change of Control that has
occurred.
The Holders of a majority in aggregate principal amount of the
outstanding Securities, on behalf of all Holders of Securities, may waive
compliance by the Company with certain restrictive provisions of this Indenture.
Subject to certain rights of the Trustee, as provided in this Indenture, the
Holders of a majority in aggregate principal amount of the outstanding
Securities, on behalf of all Holders of Securities, may waive any past default
under this Indenture, except a default in the payment of principal, premium or
interest or a default arising from failure to purchase any Security tendered
pursuant to an Offer to Purchase, or a default in respect of a provision that
under this Indenture cannot be modified or amended without the consent of the
Holder of each outstanding Security affected.
SECTION 10.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 10.04. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to
it by a Holder is a continuing consent by the Holder and every subsequent Holder
of that Security or portion of that
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Security that evidences the same debt as the consenting Holder's Security, even
if notation of the consent is not made on any Security. Subject to the following
paragraph, any such Holder or subsequent Holder may revoke the consent as to
such Holder's Security or portion of such Security 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
Securities 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 consent to such amendment,
supplement or waiver or to revoke any consent previously given, whether or not
such persons continue to be Holders after such record date. No such consent
shall be valid or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Securityholder, unless it makes a change described in any of
clauses (1) through (10) of Section 10.02. In that case the amendment,
supplement or waiver shall bind each Holder of a Security who has consented to
it and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security.
SECTION 10.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects the changed
terms. Failure to make the appropriate notation or issue a new Security shall
not affect the validity and effect of such amendment, supplement or waiver.
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SECTION 10.06. Trustee To Sign Amendments, etc.
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 Ten is authorized or permitted by this
Indenture and that such amendment, supplement or waiver constitutes the legal,
valid and binding obligation of the Company and the Guarantors, enforceable in
accordance with its terms (subject to customary exceptions). 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 or otherwise. In signing any amendment, supplement or waiver, the
Trustee shall be entitled to receive an indemnity reasonably satisfactory to it.
ARTICLE ELEVEN
GUARANTEE
SECTION 11.01. Unconditional Guarantee.
Each Guarantor who becomes a party to this Indenture hereby
unconditionally, jointly and severally, guarantees to each Holder of a Security
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns that: the principal of and interest on the Securities will be
promptly paid in full when due, subject to any applicable grace period, whether
at maturity, by acceleration or otherwise, and interest on the overdue principal
and interest on any overdue interest on the Securities and all other obligations
of the Company to the Holders or the Trustee hereunder or under the Securities
will be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; subject, however, to the limitations set forth in Section
11.04. Each such Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Securities or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Securities with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each such Guarantor
hereby waives diligence, presentment, demand of payment, filing of claims with a
court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the
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Company, protest, notice and all demands whatsoever and covenants that the
Guarantee will not be discharged except by complete performance of the
obligations contained in the Securities, this Indenture, and this Guarantee. If
any Holder or the Trustee is required by any court or otherwise to return to the
Company, any Guarantor, or any custodian, trustee, liquidator or other similar
official acting in relation to the Company or any Guarantor, any amount paid by
the Company or any Guarantor to the Trustee or such Holder, this Guarantee, to
the extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor further agrees that, as between each Guarantor, 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 purpose of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article Six, such obligations (whether or not due and payable)
shall forth become due and payable by each Guarantor for the purpose of this
Guarantee.
SECTION 11.02. Severability.
In case any provision of this Guarantee shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.03. Release of a Guarantor.
If the Securities are defeased in accordance with Section
9.01(b)(ii), or if all or substantially all of the assets of any Guarantor or
all of the Capital Stock of any Guarantor is sold (including by issuance or
otherwise) by the Company or any of its Subsidiaries in a transaction
constituting an Asset Disposition and if (x) the Net Available Proceeds from
such Asset Disposition are used in accordance with Section 4.05 or (y) the
Company delivers to the Trustee an Officers' Certificate covenanting that the
Net Available Proceeds from such Asset Disposition shall be used in accordance
with Section 4.05 and within the time limits specified by such Section 4.05,
then such Guarantor (in the event of a sale or other disposition of all of the
Capital Stock of such Guarantor) or the corporation acquiring such assets (in
the event of a sale or other disposition of all or substantially all of the
assets of such Guarantor), shall be deemed released from all obligations under
this Article Eleven without any further action required on the part
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of the Trustee or any Holder. The Trustee shall, at the sole cost and expense of
the Company and upon receipt at the reasonable request of the Trustee of an
Opinion of Counsel that the provisions of this Section 11.03 have been complied
with, deliver an appropriate instrument evidencing such release upon receipt of
a request by the Company accompanied by an Officers' Certificate certifying as
to the compliance with this Section. Any Guarantor not so released remains
liable for the full amount of principal of and interest on the Securities and
the other obligations of the Company hereunder as provided in this Article
Eleven.
SECTION 11.04. Limitation of Guarantor's Liability.
Each Guarantor, and by its acceptance hereof each Holder and
the Trustee, hereby confirms that it is the intention of all such parties that
the guarantee by such Guarantor pursuant to its Guarantee not constitute a
fraudulent transfer or conveyance for purposes of title 11 of the United States
Code, as amended, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar U.S. Federal or state or other applicable law. To
effectuate the foregoing intention, the Holders and such Guarantor hereby
irrevocably agree that the obligations of such Guarantor under the Guarantee
shall be limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantor and after giving effect to
any collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Guarantee or
pursuant to Section 11.05, result in the obligations of such Guarantor under the
Guarantee not constituting such fraudulent transfer or conveyance.
SECTION 11.05. Contribution.
In order to provide for just and equitable contribution among
the Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under the
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount, based on the net assets of each Guarantor
(including the Funding Guarantor), determined in accordance with GAAP, subject
to Section 11.04, for all payments, damages and expenses incurred by that
Funding Guarantor in discharging the Company's obligations with respect to the
Securities or any other Guarantor's obligations with respect to the Guarantee.
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SECTION 11.06. Execution of Guarantee.
To further evidence their Guarantee to the Holders, any
Guarantor required to Guarantee the Securities pursuant to the terms of Section
4.19 shall execute the Guarantee in substantially the form set forth in Exhibit
A hereto to be endorsed on each Security ordered to be authenticated and
delivered by the Trustee. Each such Guarantor hereby agrees that its Guarantee
set forth in Section 11.01 shall remain in full force and effect notwithstanding
any failure to endorse on each Security a notation of such Guarantee. Each such
Guarantee shall be signed on behalf of each Guarantor by its Chairman of the
Board, its President or one of its Vice Presidents prior to the authentication
of the Security on which it is endorsed, and the delivery of such Security by
the Trustee, after the authentication thereof hereunder, shall constitute due
delivery of such Guarantee on behalf of such Guarantor. Such signature upon the
Guarantee may be manual or facsimile signature of such officer and may be
imprinted or otherwise reproduced on the Guarantee, and in case such officer who
shall have signed the Guarantee shall cease to be such officer before the
Security on which such Guarantee is endorsed shall have been authenticated and
delivered by the Trustee or disposed of by the Company, such Security
nevertheless may be authenticated and delivered or disposed of as though the
Person who signed the Guarantee had not ceased to be such officer of the
Guarantor.
SECTION 11.07. Subordination of Subrogation and Other Rights.
Each Guarantor hereby agrees that any claim against the
Company that arises from the payment, performance or enforcement of such
Guarantor's obligations under its Guarantee or this Indenture, including,
without limitation, any right of subrogation, shall be subject and subordinate
to, and no payment with respect to any such claim of such Guarantor shall be
made before, the payment in full in cash of all outstanding Securities in
accordance with the provisions provided therefor in this Indenture.
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ARTICLE TWELVE
SUBORDINATION OF GUARANTEE
SECTION 12.01. Guarantee Obligations Subordinated
to Senior Debt of Guarantor.
Each Guarantor covenants and agrees, and the Trustee and each Holder of
the Securities by his acceptance thereof likewise covenant and agree, that the
Guarantees shall be issued subject to the provisions of this Article; and each
person holding any Security, whether upon original issue or upon transfer,
assignment or exchange thereof, accepts and agrees that all payments of the
principal of and interest on the Securities pursuant to the Guarantee made by or
on behalf of any Guarantor shall, to the extent and in the manner set forth in
this Article, be subordinated and junior in right of payment to the prior
payment in full of all amounts payable under Senior Debt of such Guarantor.
SECTION 12.02. No Payment on Guarantees in Certain
Circumstances.
(a) No payment by or on behalf of any Guarantor of principal of,
premium, if any, or interest on the Securities, or any payment to acquire any of
the Securities for cash, property or securities, or any distribution with
respect to the Securities of any kind or character, whether in cash, property or
securities, by set-off or otherwise (all such payments and distributions
referred to individually and collectively as a "Guarantor Securities Payment"),
whether pursuant to the terms of such Guarantor's Guarantee, upon acceleration
or otherwise, will be made if, at the time of such payment, there exists a
default in the payment of all or any portion of the obligations on any
Designated Senior Debt of such Guarantor whether at maturity, on account of
mandatory redemption or prepayment, acceleration or otherwise (but if the
Trustee is otherwise able to make such Guarantor Securities Payment, only
insofar as the Trustee is concerned, if the Trustee has received written notice
of such default), and such default shall not have been cured or waived or the
benefits of this sentence waived by or on behalf of the holders of such
Designated Senior Debt. In addition, during the continuance of any non-payment
default or event of default with respect to any Designated Senior Debt pursuant
to which the maturity thereof may be accelerated, and upon receipt by the
Trustee of written notice (the "Guarantor Payment Blockage Notice") from a
holder or holders of such Designated Senior Debt or the trustee or agent acting
on behalf of
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such Designated Senior Debt, then, unless and until such default or event of
default has been cured or waived or has ceased to exist or such Designated
Senior Debt has been discharged or repaid in full, in cash or cash equivalents
or otherwise in a form satisfactory to the holders of such Senior Debt, no
Guarantor Securities Payment will be made by or on behalf of such Guarantor,
except from those funds held in trust for purposes of defeasance for the benefit
of the Holders of any Securities to such Holders, during a period (a "Guarantor
Blockage Period") commencing on the date of receipt of such notice by the
Trustee and ending 179 days thereafter.
Notwithstanding anything herein or in the Securities to the contrary,
(x) in no event shall a Guarantor Blockage Period extend beyond 179 days from
the date the Guarantor Payment Blockage Notice was given and (y) there must be
180 days in any 365 day period during which no Guarantor Payment Blockage Period
is in effect. Not more than one Guarantor Blockage Period may be commenced with
respect to any Guarantor during any period of 365 consecutive days. No default
or event of default that existed or was continuing on the date of commencement
of any other Guarantor Blockage Period with respect to the Designated Senior
Debt initiating such Guarantor Payment Blockage Period may be, or be made, the
basis for the commencement of any other Guarantor Blockage Period by the holder
or holders of such Designated Senior Debt or the trustee or agent acting on
behalf of such Designated Senior Debt, whether or not within a period of 365
consecutive days, unless such default or event of default has been cured or
waived for a period of not less than 90 consecutive days.
(b) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by Section 12.02(a), such payment shall be held for the benefit of, and shall be
paid over or delivered to, the holders of such Designated Senior Debt or their
respective representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Designated Senior Debt may have been issued, as
their respective interests may appear, but only to the extent that, upon notice
from the Trustee to the holders of such Designated Senior Debt that such
prohibited payment has been made, the holders of such Designated Senior Debt (or
their representative or representatives or a trustee) notify the Trustee in
writing of the amounts then due and owing on such Designated Senior Debt, if
any, and only the amounts specified in such notice to the Trustee shall be paid
to the holders of such Designated Senior Debt.
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SECTION 12.03. Payment Over of Proceeds upon Dissolution,
etc.
(a) Upon any payment or distribution of assets or securities of any
Guarantor of any kind or character, whether in cash, property or securities,
upon any dissolution or winding-up or total or partial liquidation or
reorganization of such Guarantor, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due or to
become due with respect to all Senior Debt of such Guarantor (including any
interest accruing on or after, or which would accrue but for, an event of
bankruptcy, regardless of whether such interest is an allowed claim enforceable
against the debtor under the Bankruptcy Code) shall first be paid in full, or
payment provided for, in either case in cash or cash equivalents or otherwise in
a form satisfactory to the holders of Senior Debt, before the Holders of the
Securities or the Trustee on behalf of such Holders shall be entitled to receive
any Guarantor Securities Payment. Before any payment may be made by, or on
behalf of, any Guarantor of the principal of or interest on the Securities upon
any such dissolution or winding-up or liquidation or reorganization, any payment
or distribution of assets or securities of such Guarantor of any kind or
character, whether in cash, property or securities, to which the Holders of the
Securities or the Trustee on their behalf would be entitled, but for the
subordination provisions of this Indenture, shall be made by such Guarantor or
by any receiver, trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, directly to the holders of the
Senior Debt of such Guarantor (pro rata to such holders on the basis of the
respective amounts of Senior Debt held by such holders) or their representatives
or to the trustee or trustees under any indenture pursuant to which any of such
Senior Debt may have been issued, as their respective interests may appear, to
the extent necessary to pay all such Senior Debt in full in cash or cash
equivalents or otherwise in a form satisfactory to the holders of such Senior
Debt after giving effect to any concurrent payment, distribution or provision
therefor to or for the holders of such Senior Debt.
(b) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of assets
or securities of any kind or character, whether in cash, property or securities,
shall be received by the Trustee or any Holder of Securities at a time when such
payment or distribution is prohibited by Section 12.03(a) and before all
obligations in respect of the Senior Debt of such Guarantor are paid in full, or
payment provided for, such pay-
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ment or distribution shall be received and held for the benefit of, and shall be
paid over or delivered to, the holders of such Senior Debt or their respective
representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Debt may have been issued, as their respective
interests may appear, for application to the payment of such Senior Debt
remaining unpaid until all such Senior Debt has been paid in full after giving
effect to any concurrent payment, distribution or provision therefor to or for
the holders of such Senior Debt.
(c) The consolidation of any Guarantor with, or the merger of any
Guarantor with or into, another corporation or the liquidation or dissolution of
any Guarantor following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation upon the terms
and conditions provided in Article Five or Section 11.03 shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section if such other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article
Five or such Guarantor or successor entity shall be released from the Guarantee
pursuant to the terms of Section 11.03.
SECTION 12.04. Subrogation.
Upon the payment in full of all Senior Debt of a Guarantor, or
provision for payment, the Holders of the Securities shall be subrogated to the
rights of the holders of such Senior Debt to receive payments or distributions
of cash, property or securities of such Guarantor made on such Senior Debt until
the principal of and interest on the Securities shall be paid in full; and, for
the purposes of such subrogation, no payments or distributions to the holders of
such Senior Debt of any cash, property or securities to which the Holders of the
Securities or the Trustee on their behalf would be entitled except for the
provisions of this Article, and no payment over pursuant to the provisions of
this Article to the holders of such Senior Debt by Holders of the Securities or
the Trustee on their behalf shall, as between such Guarantor, its creditors
other than holders of such Senior Debt, and the Holders of the Securities, be
deemed to be a payment by such Guarantor to or on account of such Senior Debt.
It is understood that the provisions of this Article are and are intended solely
for the purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of Senior Debt of the Guarantors,
on the other hand.
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If any payment or distribution to which the Holders of the Securities
would otherwise have been entitled but for the provisions of this Article shall
have been applied, pursuant to the provisions of this Article, to the payment of
all amounts payable under Senior Debt, then and in such case, the Holders of the
Securities shall be entitled to receive from the holders of such Senior Debt any
payments or distributions received by such holders of Senior Debt in excess of
the amount required to make payment in full, or provision for payment, of such
Senior Debt.
SECTION 12.05. Obligations of Guarantors Unconditional.
Nothing contained in this Article or elsewhere in this Indenture or in
the Securities or the Guarantee is intended to or shall impair, as among the
Guarantors and the Holders of the Securities, the obligation of each Guarantor,
which is absolute and unconditional, to pay to the Holders of the Securities the
principal of and interest on the Securities as and when the same shall become
due and payable in accordance with the terms of the Guarantee, or is intended to
or shall affect the relative rights of the Holders of the Securities and
creditors of any Guarantor other than the holders of Senior Debt, nor shall
anything herein or therein prevent the Holder of any Security or the Trustee on
their behalf from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article of the holders of Senior Debt in respect of cash, property or securities
of any Guarantor received upon the exercise of any such remedy.
Without limiting the generality of the foregoing, nothing contained in
this Article shall restrict the right of the Trustee or the Holders of
Securities to take any action to declare the Securities to be due and payable
prior to their stated maturity pursuant to Section 6.01 or to pursue any rights
or remedies hereunder; provided, however, that all Senior Debt of any Guarantor
then due and payable shall first be paid in full before the Holders of the
Securities or the Trustee are entitled to receive any direct or indirect payment
from such Guarantor of principal of or interest on the Securities pursuant to
such Guarantor's Guarantee.
SECTION 12.06. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company or such Guarantor which would prohibit the making of any
payment to or by the
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Trustee in respect of the Securities pursuant to the provisions of this Article.
The Trustee shall not be charged with knowledge of the existence of any default
or event of default with respect to any Senior Debt or of any other facts which
would prohibit the making of any payment to or by the Trustee unless and until
the Trustee shall have received notice in writing at its Corporate Trust Office
to that effect signed by an Officer of the Company, or by a holder of Senior
Debt or trustee or agent therefor; and prior to the receipt of any such written
notice, the Trustee shall, subject to Article Seven, be entitled to assume that
no such facts exist; provided that if the Trustee shall not have received the
notice provided for in this Section at least two Business Days prior to the date
upon which by the terms of this Indenture any moneys shall become payable for
any purpose (including, without limitation, the payment of the principal of or
interest on any Security), then, regardless of anything herein to the contrary,
the Trustee shall have full power and authority to receive any moneys from any
Guarantor and to apply the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary which may be received by it
on or after such prior date. Nothing contained in this Section 12.06 shall limit
the right of the holders of Senior Debt of a Guarantor to recover payments as
contemplated by Section 12.02 or 12.03. The Trustee shall be entitled to rely on
the delivery to it of a written notice by a Person representing himself or
itself to be a holder of any Senior Debt of a Guarantor (or a trustee on behalf
of, or other representative of, such holder) to establish that such notice has
been given by a holder of such Senior Debt or a trustee or representative on
behalf of any such holder.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Debt of a Guarantor to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of such
Senior Debt held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article, and if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
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SECTION 12.07. Reliance on Judicial Order or Certificate
of Liquidating Agent.
Upon any payment or distribution of assets or securities of a Guarantor
referred to in this Article, the Trustee and the Holders of the Securities shall
be entitled to rely upon any order or decree made by any court of competent
jurisdiction in which bankruptcy, dissolution, winding-up, liquidation or
reorganization proceedings are pending, or upon a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution, delivered to the Trustee or to the Holders of the
Securities for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of Senior Debt of such Guarantor and other
indebtedness of such Guarantor, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 12.08. Trustee's Relation to Senior Debt of
Guarantors.
The Trustee and any Paying Agent shall be entitled to all the rights
set forth in this Article with respect to any Senior Debt of Guarantors which
may at any time be held by it in its individual or any other capacity to the
same extent as any other holder of such Senior Debt, and nothing in this
Indenture shall deprive the Trustee or any Paying Agent of any of its rights as
such holder.
With respect to the holders of a Guarantor's Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of such Senior Debt shall be read into
this Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt of Guarantors.
SECTION 12.09. Subordination Rights Not Impaired by Acts
or Omissions of the Guarantors or Holders
of Senior Debt of Guarantors.
No right of any present or future holders of any Senior Debt of
Guarantors to enforce subordination as provided herein shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of any
Guarantor or by any act or failure to act, in good faith, by any such holder,
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or by any noncompliance by any Guarantor with the terms of this Indenture,
regardless of any knowledge thereof which any such holder may have or otherwise
be charged with. The provisions of this Article are intended to be for the
benefit of, and shall be enforceable directly by, the holders of Senior Debt of
Guarantors.
SECTION 12.10. Securityholders Authorize Trustee To
Effectuate Subordination of Guarantee.
Each Holder of Securities by his acceptance of such Securities
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article, and appoints the Trustee his attorney-in-fact for such purposes,
including, in the event of any dissolution, winding up, liquidation or
reorganization of any Guarantor (whether in bankruptcy, insolvency,
receivership, reorganization or similar proceedings or upon a general assignment
for the benefit of creditors or otherwise) tending towards liquidation of the
business and assets of such Guarantor, the filing of a claim for the unpaid
balance of its or his Securities in the form required in those proceedings.
SECTION 12.11. This Article Not To Prevent Events
of Default.
The failure to make a payment on account of principal of or interest on
the Securities by reason of any provision of this Article shall not be construed
as preventing the occurrence of an Event of Default specified in clauses (1) or
(2) of Section 6.01.
SECTION 12.12. Trustee's Compensation Not Prejudiced.
Nothing in this Article shall apply to amounts due to the Trustee
pursuant to Section 7.07.
SECTION 12.13. No Waiver of Guarantee Subordination
Provisions.
Without in any way limiting the generality of Section 12.09, the
holders of Senior Debt of Guarantors may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the
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Securities to the holders of Senior Debt of Guarantors, do any one or more of
the following: (a) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Senior Debt of Guarantors or any
instrument evidencing the same or any agreement under which such Senior Debt is
outstanding or secured; (b) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing such Senior Debt; (c) release
any Person liable in any manner for the collection of such Senior Debt; and (d)
exercise or refrain from exercising any rights against any Guarantor and any
other Person.
SECTION 12.14. Payments May Be Paid Prior to Dissolution.
Nothing contained in this Article or elsewhere in this Indenture shall
prevent (i) a Guarantor, except under the conditions described in Section 12.02,
from making payments of principal of and interest on the Securities, or from
depositing with the Trustee any moneys for such payments, or (ii) the
application by the Trustee of any moneys deposited with it for the purpose of
making such payments of principal of and interest on the Securities, to the
Holders entitled thereto unless at least two Business Days prior to the date
upon which such payment becomes due and payable, the Trustee shall have received
the written notice provided for in Section 12.02(b) or in Section 12.06. A
Guarantor shall give prompt written notice to the Trustee of any dissolution,
winding-up, liquidation or reorganization of such Guarantor.
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. Trust Indenture Act Controls.
This Indenture is subject to the provisions of the TIA that are
required to be a part of this Indenture, and shall, to the extent applicable, be
governed by such provisions. If any provision of this Indenture modifies any TIA
provision that may be so modified, such TIA provision shall be deemed to apply
to this Indenture as so modified. If any provision of this Indenture excludes
any TIA provision that may be so excluded, such TIA provision shall be excluded
from this Indenture.
The provisions of TIA Sections 310 through 317 that impose duties
on any Person (including the provisions automatically deemed included unless
expressly excluded by this Indenture)
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are a part of and govern this Indenture, whether or not physically contained
herein.
SECTION 13.02. Notices.
Any notice or communication shall be sufficiently given if in writing
and delivered in person, by facsimile and confirmed by overnight courier, or
mailed by first-class mail addressed as follows:
if to the Company or a Guarantor:
Tekni-Plex, Inc.
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Dr. F. Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Winthrop, Stimson, Xxxxxx & Xxxxxxx
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Trustee:
Marine Midland Bank
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Services-Tekni-Plex
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
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Any notice or communication mailed, first class, postage prepaid,
to a Securityholder, including any notice delivered in connection with TIA
Section 310(b), TIA Section 313(c), TIA Section 314(a) and TIA Section 315(b),
shall be mailed to him at his address as set forth on the registration books of
the Registrar and shall be sufficiently given to him if so mailed within the
time prescribed. To the extent required by the TIA, any notice or communication
shall also be mailed to any Person described in TIA Section 313(c).
Failure to mail a notice or communication to a Securityholder or
any defect in it shall not affect its sufficiency with respect to other
Securityholders. Except for a notice to the Trustee, which is deemed given only
when received, if a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 13.03. Communications by Holders with Other
Holders.
Securityholders may communicate pursuant to TIA Section 312(b)
with other Securityholders with respect to their rights under this Indenture or
the Securities. The Company, the Trustee, the Registrar and any other person
shall have the protection of TIA Section 312(c).
SECTION 13.04. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the Trustee to
take or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee at the request of the Trustee:
(1) an Officers' Certificate in form and substance satisfactory to
the Trustee stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with;
(2) an Opinion of Counsel in form and substance satisfactory to
the Trustee stating that, in the opinion of such counsel, all such
conditions precedent have been complied with; and
(3) where applicable, a certificate or opinion by an independent
certified public accountant satisfactory to the Trustee that complies
with TIA Section 314(c).
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SECTION 13.05. Statements Required in Certificate
or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of 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 13.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a
meeting of Securityholders. The Paying Agent or Registrar may make reasonable
rules for its functions.
SECTION 13.07. Governing Law.
Pursuant to Section 5-1401 of the General Obligations Law of the
State of New York this Indenture, the Securities and the Guarantee shall be
governed by and construed in accordance with the laws of the State of New York,
without giving effect to any other conflicts of law provisions.
SECTION 13.08. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the
Company or any Guarantor shall not have any liability for any obligations of the
Company or any Guarantor under the Securities, the Guarantee or this Indenture
or for any claim based on, in respect of or by reason of such obligations
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or their creation. Each Securityholder by accepting a Security waives and
releases all such liability.
SECTION 13.09. Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. Subject to Section 11.03, all agreements of each
Guarantor in this Indenture and Securities shall bind its successor. All
agreements of the Trustee in this Indenture shall bind its successor.
SECTION 13.10. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 13.11. Severability.
In case any provision in this Indenture, in the Securities or in
the Guarantee shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby, and a Holder shall have no claim therefor against any party
hereto.
SECTION 13.12. No Adverse Interpretation of Other
Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or a Subsidiary. Any such indenture, loan
or debt agreement may not be used to interpret this Indenture.
SECTION 13.13. Legal Holidays.
If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
[Signature Page Follows]
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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.
TEKNI-PLEX, INC.
By: /s/ Xxxxxxx X.X. Xxxxx
---------------------------------
Name: Xxxxxxx X.X. Xxxxx
Title: President
DOLCO PACKAGING CORP.
By: /s/ Xxxxxxx X.X. Xxxxx
---------------------------------
Name: Xxxxxxx X.X. Xxxxx
Title: President
MARINE MIDLAND BANK,
as Trustee
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Vice
President
118
EXHIBIT A
TEKNI-PLEX, INC.
No. $
11 1/4% SENIOR SUBORDINATED NOTE DUE 2007
Tekni-Plex, Inc. promises to pay to or registered assigns the
principal sum of Dollars on the Maturity Date of April 1, 2007.
Interest Payment Dates: April and October 1, beginning
October 1, 1997.
Record Dates: March 15 and September 15, beginning
September 15, 1997.
IN WITNESS WHEREOF, TEKNI-PLEX, INC. has caused this instrument to
be executed in its corporate name by manual or a facsimile signature of its
________________ and its ___________________.
TEKNI-PLEX, INC.
By: ________________________________
Name:
Title:
Dated: By: ________________________________
Name:
Title:
Certificate of Authentication:
This is one of the 11 1/4% Senior Subordinated Notes due 2007
referred to in the within-mentioned Indenture.
MARINE MIDLAND BANK, as Trustee
By ________________________________ Date:
Authorized Signatory
A-1
119
(REVERSE OF SECURITY)
TEKNI-PLEX, INC.
11 1/4% Senior Subordinated Note due 2007
1. Interest.
Tekni-Plex, Inc., a Delaware corporation (the "Company"), promises to
pay interest at the rate of 11 1/4% per annum on the principal amount of this
Security semiannually commencing on October 1, 1997, until the principal hereof
is paid or made available for payment. Interest on the Securities will accrue
from and including the most recent date to which interest has been paid or, if
no interest has been paid, from and including April 4, 1997, through but
excluding the date on which interest is paid. If an Interest Payment Date falls
on a day that is not a Business Day, the interest payment to be made on such
Interest Payment Date will be made on the next succeeding Business Day with the
same force and effect as if made on such Interest Payment Date, and no
additional interest will accrue as a result of such delayed payment. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment.
The interest payable on the Securities, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture
(as defined below), be paid to the person in whose name this Security is
registered at the close of business on the regular record date, which shall be
the March 15 or September 15 (whether or not a Business Day) next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for, and any interest payable on such defaulted interest (to the extent lawful),
will forthwith cease to be payable to the Holder on such regular record date and
shall be paid to the person in whose name this Security is registered at the
close of business on a special record date for the payment of such defaulted
interest to be fixed by the Company, notice of which shall be given to Holders
not less than 15 days prior to such special record date. Payment of the
principal of and interest on this Security will be made at the agency of the
Company maintained for that purpose in New York, New York and at any other
office or agency maintained by the Company for such purpose, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; pro-
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vided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the person entitled thereto as such
address shall appear in the Security register.
3. Paying Agent and Registrar.
Initially, Marine Midland Bank (the "Trustee") will act as Paying Agent
and Registrar. The Company may change any Paying Agent, Registrar or
co-Registrar without notice to the Holders of Securities. The Company or any of
its Subsidiaries may act as Registrar or co-Registrar but may not act as Paying
Agent.
4. Indenture.
This Security is one of a duly authorized issue of Securities of the
Company, designated as its 11 1/4% Senior Subordinated Notes due 2007 (the
"Securities"), limited in aggregate principal amount to $150,000,000 (except for
Securities issued in substitution for destroyed, lost or stolen Securities)
issuable under an indenture dated as of April 1, 1997 (the "Indenture"), among
the Company, Dolco Packaging Corp. and the Trustee. The terms of the Securities
include those stated in the Indenture and those made part of the Indenture by
the Trust Indenture Act of 1939 (the "Act") (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of the Indenture. The Securities are
subject to all such terms, and Holders of Securities are referred to the
Indenture and the Act for a statement of them. Each Securityholder, by accepting
a Security, agrees to be bound to all of the terms and provisions of the
Indenture, as the same may be amended from time to time. Payment on each
Security is guaranteed, jointly and severally, by the Guarantors pursuant to
Article Eleven of the Indenture.
Capitalized terms contained in this Security to the extent not defined
herein shall have the meanings assigned to them in the Indenture.
5. Optional Redemption.
The Securities will be subject to redemption, at the option of the
Company, in whole or in part, at any time on or after April 1, 2002 and prior to
maturity, upon not less than 30 nor more than 60 days' notice mailed to each
holder of Securities to be redeemed at his address appearing in the register for
the Securities, in amounts of $1,000 or an integral multiple of $1,000, at the
following redemption prices (expressed as
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percentages of principal amount) plus accrued interest to but excluding the date
fixed for redemption (subject to the right of holders of record on the relevant
Record Date to receive interest due on an interest payment date that is on or
prior to the date fixed for redemption), if redeemed during the 12-month period
beginning April 1 of the years indicated:
YEAR PERCENTAGE
2002........................................ 105.625%
2003........................................ 103.750
2004........................................ 101.875
2005 and thereafter......................... 100.000
In addition, prior to April 1, 2000, the Company may redeem up to 33%
of the principal amount of the Securities with the net cash proceeds received by
the Company from one or more public offerings of Capital Stock (other than
Disqualified Stock) of the Company, at a redemption price (expressed as a
percentage of the principal amount) of 111.25% of the principal amount thereof,
plus accrued and unpaid interest to the date fixed for redemption; provided,
however, that at least $60.0 million in aggregate principal amount of the
Securities remains outstanding immediately after any such redemption (excluding
any Securities owned by the Company or any of its Affiliates). Notice of
redemption pursuant to this paragraph must be mailed to holders of Securities
not later than 60 days following the consummation of such public offering.
Selection of Securities for any partial redemption shall be made by the
Trustee, in accordance with the rules of any national securities exchange on
which the Securities may be listed or, if the Securities are not so listed, pro
rata or by lot or in such other manner as the Trustee shall deem appropriate and
fair. Securities in denominations larger than $1,000 may be redeemed in part but
only in integral multiples of $1,000. Notice of redemption will be mailed before
the date fixed for redemption to each holder of Securities to be redeemed at his
or her registered address. On and after the date fixed for redemption, interest
will cease to accrue on Securities or portions thereof called for redemption.
The Securities will not have the benefit of any sinking fund.
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6. Purchase upon Occurrence of a
Change of Control.
Within 30 days of the occurrence of a Change of Control, the Company
will offer to purchase the Securities, in whole and not in part, at a purchase
price equal to 101% of the principal amount thereof plus any accrued and unpaid
interest thereon.
7. Notice of Redemption.
Notice of redemption will be mailed by first class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Securities to be redeemed at his registered address. Securities in denominations
larger than $1,000 may be redeemed in part. On and after the redemption date,
interest ceases to accrue on those Securities or portion of them called for
redemption.
8. Denominations; Transfer; Exchange.
The Securities are in registered form without coupons in denominations
of $1,000 and integral multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not transfer or exchange any Securities selected for redemption.
9. Persons Deemed Owners.
The registered Holder of a Security may be treated as the owner of it
for all purposes.
10. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed for
two years, the Trustee or Paying Agent will repay the funds to the Company at
its request. After such repayment Holders of Securities entitled to such funds
must look to the Company for payment unless an applicable abandoned property law
designates another person.
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00. Discharge Prior to Redemption or
Maturity.
The Indenture will be discharged and cancelled except for certain
Sections thereof, subject to the terms of the Indenture, upon the payment of all
the Securities or upon the irrevocable deposit with the Trustee of funds or
United States Government Obligations sufficient for such payment or redemption.
12. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the outstanding Securities, and any past default or
compliance with any provision may be waived with the consent of the Holders of a
majority in principal amount of the outstanding Securities. Without notice to or
the consent of any Holder, the Company, the Guarantors and the Trustee may amend
or supplement the Indenture or the Securities to cure any ambiguity, defect or
inconsistency, or to make any change that does not adversely affect the rights
of any Holder of Securities.
13. Restrictive Covenants.
The Indenture restricts, among other things, the ability of the Company
or any of its Restricted Subsidiaries to permit any Liens to be imposed on their
assets, to make certain Restricted Payments and Investments, limits the
Indebtedness which the Company and its Restricted Subsidiaries may incur and
limits the terms on which the Company may engage in Asset Dispositions. The
Company is also obligated under certain circumstances to make an offer to
purchase Securities with the net cash proceeds of certain Asset Dispositions.
The Company must report annually to the Trustee on compliance with the covenants
in the Indenture.
14. Successor Corporation.
Pursuant to the Indenture, the ability of the Company to consolidate
with, merge with or into or transfer its assets to another person is conditioned
upon certain requirements, including certain financial requirements applicable
to the surviving Person.
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00. Defaults and Remedies.
If an Event of Default shall occur and be continuing, the principal of
all of the outstanding Securities, plus all accrued and unpaid interest, if any,
to the date the Securities become due and payable, may be declared due and
payable in the manner and with the effect provided in the Indenture.
16. Trustee Dealings with Company.
The Trustee in its individual or any other capacity, may become the
owner or pledgee of Securities and make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not Trustee.
17. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
or any Guarantor shall not have any liability for any obligations of the Company
or any Guarantor under the Securities, the Guarantee or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Holder of a Security by accepting a Security waives and releases
all such liability. The waiver and release are part of the consideration for the
issue of the Securities.
18. Authentication.
This Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Security.
19. Abbreviations.
Customary abbreviations may be used in the name of Securityholder or an
assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
20. CUSIP or CINS Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP or CINS numbers
to be printed on the Se-
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curities and has directed the Trustee to use CUSIP or CINS numbers in notices of
redemption as a convenience to Securityholders. No representation is made as to
the accuracy of such numbers either as printed on the Securities or as contained
in any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
21. Governing Law.
The laws of the State of New York shall govern the Indenture, this
Security and the Guarantee without regard to principles of conflicts of law.
The Company will furnish to any Holder of record of Securities upon
written request and without charge a copy of the Indenture.
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[FORM OF NOTATION ON SECURITY RELATING TO GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
The Guarantors (as defined in the Indenture referred to in the Security
upon which this notation is endorsed) hereby, jointly and severally,
unconditionally guarantee (such guarantee by each Guarantor being referred to
herein as the "Guarantee") the due and punctual payment of the principal of,
premium, if any, and interest on the Securities, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal, premium and interest, if any, on the Securities, and the due
and punctual performance of all other obligations of the Company to the Holders
or the Trustee, all in accordance with the terms set forth in Article Eleven of
the Indenture.
The obligations of each Guarantor to the Holders of Securities and to
the Trustee pursuant to the Guarantee and the Indenture are expressly set forth,
to the extent and in the manner provided, in Article Twelve of the Indenture,
and reference is hereby made to such Indenture for the precise terms of the
Guarantee therein made.
The Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Securities upon which the Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York without regard to principles of conflicts of
law.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
DOLCO PACKAGING CORP.
By: ________________________________
Name:
Title:
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ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Security to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint _________________________________________, agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Dated: _______________________ Signed: _________________________________
(Sign exactly as name
appears on the other
side of this Security)
Signature Guarantee: ___________________________________________________________
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OPTION OF HOLDER TO ELECT PURCHASE
If you the Holder want to elect to have this Security purchased by the Company,
check the box: / /
If you want to elect to have only part of this Security purchased by the
Company, state the amount: $ _______________
Dated: _______________________ Signed: _________________________________
(Sign exactly as name
appears on the other
side of this Security)
Signature Guarantee: ___________________________________________________________
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EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Tekni-Plex, Inc.
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention:
Marine Midland Bank
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Services-
Tekni-Plex
Re: 11 1/4% Senior Subordinated Notes due 2007
Reference is hereby made to the Indenture, dated as of April 1, 1997
(the "Indenture"), among Tekni-Plex, Inc. (the "Company"), Dolco Packaging Corp.
and Marine Midland Bank, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
________________, (the "Transferor") owns and proposes to transfer the
Security[s] specified in Annex A hereto in the principal amount of $___ in such
Security[s] (the "Transfer"), to ________ (the "Transferee"), as further
specified in Annex A hereto. In the event that Transferor holds Physical
Securities, this Certificate is accompanied by one or more certificates
aggregating at least the principal amount of Securities proposed to be
Transferred. In connection with the Transfer, the Transferor hereby certifies
that:
1. / / CHECK IF TRANSFEREE WILL TAKE AN INTEREST IN THE 144A GLOBAL SECURITY.
The Transfer is being effected pursuant to and in accordance with Rule 144A
under the United States Securities Act of 1933, as amended (the "Securities
Act"), and, accordingly, the Transferor hereby further certifies that the
Securities are being transferred to a Person that the Transferor reasonably
believes is purchasing the Securities for its own account, or for one or more
accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A in a transaction meeting the requirements of
Rule 144A and such Transfer is in compliance with any applicable blue sky
securities laws of any state of
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the United States. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred Security will be subject to the
restrictions on transfer enumerated in the Securities Act Legend and in the
Indenture and the Securities Act.
2. / / CHECK IF TRANSFEREE WILL TAKE AN INTEREST IN THE REGULATION S GLOBAL
SECURITY PURSUANT TO REGULATION S. The Transfer is being effected pursuant to
and in accordance with Rule 904 under the Securities Act and, accordingly, the
Transferor hereby further certifies that (i) the Transfer is not being made to a
person in the United States and (x) at the time the buy order was originated,
the Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 904(b) of Regulation
S under the Securities Act and (iii) the transaction is not part of a plan or
scheme to evade the registration requirements of the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the Security will be subject to the restrictions on Transfer
enumerated in the Securities Act Legend printed on the Regulation S Global
Security and in the Indenture and the Securities Act.
3. / / CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A RESTRICTED
PHYSICAL SECURITY PURSUANT TO RULE 144A OR REGULATION S. One or more of the
events specified in Section 2.06(a) of the Indenture have occurred and the
Transfer is being effected in compliance with the transfer restrictions
applicable to Securities bearing the Securities Act Legend and pursuant to and
in accordance with the Securities Act, and accordingly the Transferor hereby
further certifies that (check one):
(a) / / such Transfer is being effected pursuant to and in accordance with
Rule 144A under the Securities Act and the Transferor certifies to the effect
set forth in paragraph 1 above; or
(b) / / such Transfer is being effected pursuant to and in accordance with
Rule 904 under the Securities Act and the
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Transferor certifies to the effect set forth in paragraph 2 above.
4. / / CHECK IF TRANSFEREE WILL TAKE AN INTEREST IN THE UNRESTRICTED GLOBAL
SECURITY. The Transfer is being effected pursuant to and in accordance with Rule
144 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture, and the restrictions on transfer contained in the
Indenture and the Securities Act Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transfer Securities will no
longer be subject to the restrictions on transfer enumerated in the Securities
Act Legend and in the Indenture and the Securities Act.
5. / / CHECK IF TRANSFEREE WILL TAKE AN INTEREST IN THE PHYSICAL GLOBAL
SECURITY THAT DOES NOT BEAR THE SECURITIES ACT LEGEND. One or more of the events
specified in Section 2.06(a) of the Indenture have occurred and the Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture,
and the restrictions on transfer contained in the Indenture and the Securities
Act Legend are not required in order to maintain compliance with the Securities
Act. Upon consummation of the proposed Transfer in accordance with the terms of
the Indenture, the transferred Securities will no longer be subject to the
restrictions on transfer enumerated in the Securities Act Legend and in the
Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
____________________________________
[Insert Name of Transferor]
By: ________________________________
Name:
Title:
Dated:_______________________
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FORM OF ANNEX A TO CERTIFICATE
OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) / / Interests in the
(i) / / 144A Global Security (CUSIP _____), or
(ii) / / Regulation S Global Security (CINS _____).
(b) / /Physical Security.
2. That the Transferee will hold:
[CHECK ONE]
(a) / / Interests in the:
(i) / / 144A Global Security (CUSIP _____), or
(ii) / / Regulation S Global Security (CINS _____), or
(iii) / / Unrestricted Global Security (CUSIP _____); or
(b) / / Physical Securities that bear the Securities Act Legend;
(c) / / Physical Securities that do not bear the Securities Act
Legend;
in accordance with the terms of the Indenture.
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EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Tekni-Plex, Inc.
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention:
Marine Midland Bank
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Services-
Tekni-Plex
Re: 11 1/4% Senior Subordinated Notes due 2007
(CUSIP _______________)
Reference is hereby made to the Indenture, dated as of April 1, 1997
(the "Indenture"), among Tekni-Plex, Inc. (the "Company"), Dolco Packaging Corp.
and Marine Midland Bank, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
__________ (the "Holder") owns and proposes to exchange the Security[s]
specified herein, in the principal amount of $___ in such Security[s] (the
"Exchange"). In the event Holder holds Physical Securities, this Certificate is
accompanied by one or more certificates aggregating at least the principal
amount of Securities proposed to be Exchanged. In connection with the Exchange,
the Holder hereby certifies that:
1. EXCHANGE OF RESTRICTED PHYSICAL SECURITIES OR INTERESTS IN THE
INITIAL GLOBAL SECURITY FOR PHYSICAL SECURITIES THAT DO NOT BEAR THE SECURITIES
ACT LEGEND OR UNRESTRICTED GLOBAL SECURITIES
(a) / / CHECK IF EXCHANGE IS FROM INITIAL GLOBAL SECURITIES TO THE
UNRESTRICTED GLOBAL SECURITY. In connection with the Exchange of the Holder's
Initial Global Security to the Unrestricted Global Security in an equal
principal amount, the Holder hereby certifies (i) the Unrestricted Global
Securities are being acquired for the Holder's own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Initial Global Se-
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curities and pursuant to and in accordance with the Securities Act of 1933, as
amended (the "Securities Act") and (iii) the restrictions on transfer contained
in the Indenture and the Securities Act Legend are not required in order to
maintain compliance with the Securities Act.
(b) / / CHECK IF EXCHANGE IS FROM RESTRICTED PHYSICAL SECURITIES TO AN
INTEREST IN THE UNRESTRICTED GLOBAL SECURITY. In connection with the Holder's
Exchange of Restricted Physical Securities for Interest in the Unrestricted
Global Security, (i) the Interest in the Unrestricted Global Security are being
acquired for the Holder's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Physical Securities and pursuant to and in accordance with the
Securities Act and (iii) the restrictions on transfer contained in the Indenture
and the Securities Act Legend are not required in order to maintain compliance
with the Securities Act.
(c) / / CHECK IF EXCHANGE IS FROM RESTRICTED PHYSICAL SECURITIES TO
PHYSICAL SECURITIES THAT DO NOT BEAR THE SECURITIES ACT LEGEND. In connection
with the Holder's Exchange of a Restricted Physical Security for Physical
Securities that do not bear the Securities Act Legend, the Holder hereby
certifies (i) the Physical Securities that do not bear the Securities Act Legend
are being acquired for the Holder's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Physical Securities and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Securities Act Legend are not required in order to maintain
compliance with the Securities Act and (iv) one or more of the events specified
in Section 2.06(a) of the Indenture have occurred.
2. / / CHECK IF EXCHANGE IS FROM RESTRICTED PHYSICAL SECURITIES TO INTERESTS
IN AN INITIAL GLOBAL SECURITY. In connection with the Exchange of the Holder's
Restricted Physical Security for interests in the Initial Global Security in the
[CHECK ONE] / / 144A Global Security, / / Regulation S Global Security, with an
equal principal amount, (i) the interests in the Initial Global Security are
being acquired for the Holder's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Physical Security and pursuant to and in accordance
with the Securities Act. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Initial Global Security issued
will be subject to the restrictions
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on transfer enumerated in the Securities Act Legend printed on the Initial
Global Securities and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
____________________________________
[Insert Name of Holder]
By: ________________________________
Name:
Title:
Dated:_______________________
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