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EXHIBIT 4.1
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RICHMONT MARKETING SPECIALISTS INC.
10 1/8% Senior Subordinated Notes due 2007
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INDENTURE
Dated as of December 19, 1997
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TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
Trustee
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TABLE OF CONTENTS
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ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.....................................................1
SECTION 1.02. Other Definitions..............................................25
SECTION 1.03. Incorporation by Reference of Trust Indenture Act..............26
SECTION 1.04. Rules of Construction..........................................26
ARTICLE II
The Securities
SECTION 2.01. Form and Dating................................................27
SECTION 2.02. Execution and Authentication...................................28
SECTION 2.03. Registrar and Paying Agent.....................................29
SECTION 2.04. Paying Agent To Hold Money in Trust............................30
SECTION 2.05. Securityholder Lists...........................................31
SECTION 2.06. Transfer and Exchange..........................................31
SECTION 2.07. Replacement Securities.........................................32
SECTION 2.08. Outstanding Securities.........................................33
SECTION 2.09. Temporary Securities...........................................34
SECTION 2.10. Cancelation....................................................34
SECTION 2.11. Defaulted Interest.............................................34
SECTION 2.12. CUSIP Numbers..................................................35
SECTION 2.13. Book-Entry Provisions for Global Securities....................35
SECTION 2.14. Special Transfer Provisions....................................36
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee.............................................39
SECTION 3.02. Selection of Securities To Be Redeemed.........................39
SECTION 3.03. Notice of Redemption...........................................40
SECTION 3.04. Effect of Notice of Redemption.................................41
SECTION 3.05. Deposit of Redemption Price....................................41
SECTION 3.06. Securities Redeemed in Part....................................41
SECTION 3.07. Optional Redemption............................................41
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ARTICLE IV
Covenants
SECTION 4.01. Payment of Securities..........................................42
SECTION 4.02. SEC Reports....................................................42
SECTION 4.03. Limitation on Indebtedness.....................................43
SECTION 4.04. Limitation on Restricted Payments..............................47
SECTION 4.05. Limitation on Restrictions on Distributions from Restricted
Subsidiaries...................................................51
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock.............52
SECTION 4.07. Limitation on Transactions with Affiliates.....................56
SECTION 4.08. Change of Control..............................................57
SECTION 4.09. Compliance Certificate.........................................59
SECTION 4.10. Further Instruments and Acts...................................59
SECTION 4.11. Future Guarantor Subsidiaries..................................59
SECTION 4.12. Limitation on Lines of Business................................60
SECTION 4.13. Limitation on the Sale or Issuance of Capital Stock of
Restricted Subsidiaries........................................60
SECTION 4.14. Limitation on Sale/Leaseback Transactions......................60
ARTICLE V
Successor Company
SECTION 5.01. When Company May Merge or Transfer Assets......................60
ARTICLE VI
Defaults 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 Defaults........................................65
SECTION 6.05. Control by Majority............................................65
SECTION 6.06. Limitation on Suits............................................66
SECTION 6.07. Rights of Holders To Receive Payment...........................66
SECTION 6.08. Collection Suit by Trustee.....................................66
SECTION 6.09. Trustee May File Proofs of Claim...............................66
SECTION 6.10. Priorities.....................................................67
SECTION 6.11. Undertaking for Costs..........................................67
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SECTION 6.12. Waiver of Stay or Extension Laws...............................68
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee..............................................68
SECTION 7.02. Rights of Trustee..............................................69
SECTION 7.03. Individual Rights of Trustee...................................70
SECTION 7.04. Trustee's Disclaimer...........................................70
SECTION 7.05. Notice of Defaults.............................................71
SECTION 7.06. Reports by Trustee to Holders..................................71
SECTION 7.07. Compensation and Indemnity.....................................71
SECTION 7.08. Replacement of Trustee.........................................72
SECTION 7.09. Successor Trustee by Merger....................................73
SECTION 7.10. Eligibility; Disqualification..................................74
SECTION 7.11. Preferential Collection of Claims Against Company..............74
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance...............74
SECTION 8.02. Conditions to Defeasance.......................................75
SECTION 8.03. Application of Trust Money.....................................77
SECTION 8.04. Repayment to Company...........................................77
SECTION 8.05. Indemnity for Government Obligations...........................77
SECTION 8.06. Reinstatement..................................................77
ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders.....................................78
SECTION 9.02. With Consent of Holders........................................79
SECTION 9.03. Compliance with Trust Indenture Act............................80
SECTION 9.04. Revocation and Effect of Consents and Waivers..................80
SECTION 9.05. Notation on or Exchange of Securities..........................81
SECTION 9.06. Trustee To Sign Amendments.....................................81
SECTION 9.07. Payment for Consent............................................81
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ARTICLE X
Subordination
SECTION 10.01. Agreement To Subordinate......................................82
SECTION 10.02. Liquidation, Dissolution, Bankruptcy..........................82
SECTION 10.03. Default on Senior Indebtedness................................83
SECTION 10.04. Acceleration of Payment of Securities.........................84
SECTION 10.05. When Distribution Must Be Paid Over...........................84
SECTION 10.06. Subrogation...................................................84
SECTION 10.07. Relative Rights...............................................85
SECTION 10.08. Subordination May Not Be Impaired by Company..................85
SECTION 10.09. Rights of Trustee and Paying Agent............................85
SECTION 10.10. Distribution or Notice to Representative......................86
SECTION 10.11. Article X Not To Prevent Events of Default or Limit
Right To Accelerate...........................................86
SECTION 10.12. Trust Moneys Not Subordinated.................................86
SECTION 10.13. Trustee Entitled To Rely......................................86
SECTION 10.14. Trustee To Effectuate Subordination...........................87
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior Indebtedness......87
SECTION 10.16. Reliance by Holders of Senior Indebtedness on Subordination
Provisions....................................................87
SECTION 10.17. Trustee's Compensation Not Prejudiced.........................88
ARTICLE XI
Subsidiary Guarantees
SECTION 11.01. Subsidiary Guarantees.........................................88
SECTION 11.02. Limitation on Liability.......................................91
SECTION 11.03. Successors and Assigns........................................91
SECTION 11.04. No Waiver.....................................................91
SECTION 11.05. Modification..................................................92
SECTION 11.06. Execution of Supplemental Indenture for Future
Guarantor Subsidiaries........................................92
ARTICLE XII
Subordination of the Subsidiary Guarantees
SECTION 12.01. Agreement To Subordinate......................................92
SECTION 12.02. Liquidation, Dissolution, Bankruptcy..........................93
SECTION 12.03. Default on Senior Indebtedness of a Guarantor Subsidiary......93
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SECTION 12.04. Demand for Payment............................................94
SECTION 12.05. When Distribution Must Be Paid Over...........................95
SECTION 12.06. Subrogation...................................................95
SECTION 12.07. Relative Rights...............................................95
SECTION 12.08. Subordination May Not Be Impaired by a Guarantor Subsidiary...96
SECTION 12.09. Rights of Trustee and Paying Agent............................96
SECTION 12.10. Distribution or Notice to Representative......................96
SECTION 12.11. Article XII Not To Prevent Events of Default or Limit
Right To Accelerate...........................................97
SECTION 12.12. Trustee Entitled To Rely......................................97
SECTION 12.13. Trustee To Effectuate Subordination...........................97
SECTION 12.14. Trustee Not Fiduciary for Holders of Senior Indebtedness
of a Guarantor Subsidiary.....................................98
SECTION 12.15. Reliance by Holders of Senior Indebtedness of a Guarantor
Subsidiary on Subordination Provisions........................98
SECTION 12.16. Defeasance....................................................98
ARTICLE XIII
Miscellaneous
SECTION 13.01. Trust Indenture Act Controls..................................98
SECTION 13.02. Notices.......................................................99
SECTION 13.03. Communication by Holders with Other Holders...................99
SECTION 13.04. Certificate and Opinion as to Conditions Precedent............99
SECTION 13.05. Statements Required in Certificate or Opinion................100
SECTION 13.06. When Securities Disregarded..................................100
SECTION 13.07. Rules by Trustee, Paying Agent and Registrar.................101
SECTION 13.08. Legal Holidays...............................................101
SECTION 13.09. Governing Law................................................101
SECTION 13.10. No Recourse Against Others...................................101
SECTION 13.11. Successors...................................................101
SECTION 13.12. Multiple Originals...........................................101
SECTION 13.13. Table of Contents; Headings..................................101
Exhibit A - Form of Initial Security
Exhibit B - Form of Exchange Security
Exhibit C - Form of Private Exchange Security
Exhibit D - Form of Transferee Letter of Representation
Exhibit E - Form of Supplemental Indenture
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Exhibit F - Form of Certificate To Be Delivered in
Connection with Transfers Pursuant to
Rule 144A
Exhibit G - Form of Certificate to be Delivered in
Connection with Transfers Pursuant to
Regulation S
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310(a)(1) ..................................... 7.10
(a)(2) ..................................... 7.10
(a)(3) ..................................... N.A.
(a)(4) ..................................... N.A.
(b) ..................................... 7.08; 7.10
(c) ..................................... N.A.
311(a) ..................................... 7.11
(b) ..................................... 7.11
(c) ..................................... N.A.
312(a) ..................................... 2.05
(b) ..................................... 13.03
(c) ..................................... 13.03
313(a) ..................................... 7.06
(b)(1) ..................................... N.A.
(b)(2) ..................................... 7.06
(c) ..................................... 13.02
(d) ..................................... 7.06
314(a) ..................................... 4.02; 4.09
(b) ..................................... N.A.
(c)(1) ..................................... 13.04
(c)(2) ..................................... 13.04
(c)(3) ..................................... 13.04
(d) ..................................... N.A.
(e) ..................................... 13.05
(f) ..................................... N.A.
315(a) ..................................... 7.01
(b) ..................................... 7.05; 13.02
(c) ..................................... 7.01
(d) ..................................... 7.01
(e) ..................................... 6.11
316(a)(last
sentence) ..................................... 13.06
(a)(1)(A) ..................................... 6.05
(a)(1)(B) ..................................... 6.04
(a)(2) ..................................... N.A.
(b) ..................................... 6.07
317(a)(1) ..................................... 6.08
(a)(2) ..................................... 6.09
(b) ..................................... 2.04
318(a) ..................................... 13.01
N.A. means Not Applicable.
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Note: This Cross-Reference Table shall not, for any purpose, be deemed
to be part of the Indenture.
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INDENTURE dated as of December 19, 1997, among RICHMONT
MARKETING SPECIALISTS INC., a Delaware corporation (the
"Company"), each Subsidiary of the Company listed on the
signature pages hereto (the "Guarantor Subsidiaries") and
TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national banking
association (the "Trustee").
Each party agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of (i) the Company's 10
1/8% Senior Subordinated Notes due 2007 issued on the Closing Date (the
"Original Securities"), (ii) any Additional Securities (as defined herein) that
may be issued on any other Issue Date (all such Securities in clauses (i) and
(ii) being referred to collectively as the "Initial Securities"), (iii) if and
when issued as provided in the Exchange and Registration Rights Agreement of
even date herewith, the Company's 10 1/8% Senior Subordinated Series A Notes due
2007 (the "Exchange Securities") and (iv) if and when issued as provided in the
Exchange and Registration Rights Agreement, the Private Exchange Securities
(together with the Exchange Securities and the Initial Securities, the
"Securities"). Except as otherwise provided herein, the Securities will be
limited to $150,000,000 in aggregate principal amount outstanding, of which
$100,000,000 in aggregate principal amount will be initially issued on the
Closing Date. Subject to the conditions set forth herein, the Company may issue
up to an additional $50,000,000 aggregate principal amount of Additional
Securities.
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Additional Assets" means (a) any tangible property or assets (other
than Indebtedness and Capital Stock) to be used by the Company or a Restricted
Subsidiary in a Related Business; (b) the Capital Stock of a Person that becomes
a Restricted Subsidiary as a result of the acquisition of such Capital Stock by
the Company or another Restricted Subsidiary; (c) Capital Stock constituting an
additional interest in any Person that at such time is a Restricted Subsidiary;
provided, however, that, in the case of clauses (b) and (c), such Restricted
Subsidiary is
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primarily engaged in a Related Business; or (d) Investments described in clause
(h) of the definition of the term "Permitted Investment."
"Additional Securities" shall mean up to $50,000,000 in aggregate
principal amount of the Company's 10 1/8% Senior Subordinated Notes due 2007
initially issued subsequent to the Closing Date pursuant to Article II and in
compliance with Section 4.03.
"Affiliate" of any specified Person means any other Person, directly
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the 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. For
purposes of Sections 4.06 and 4.07 only, "Affiliate" shall also mean any
beneficial owner of shares representing 5% or more of the total voting power of
the Voting Stock (on a fully diluted basis) of the Company or of rights or
warrants to purchase such Voting Stock (whether or not currently exercisable)
and any Person who would be an Affiliate of any such beneficial owner pursuant
to the first sentence hereof.
"Asset Disposition" means any sale, lease, transfer or other
disposition of shares of Capital Stock of a Restricted Subsidiary (other than
directors' qualifying shares), property or other assets (each referred to for
the purposes of this definition as a "disposition") by the Company or any of its
Restricted Subsidiaries (including any disposition by means of a merger,
consolidation or similar transaction) other than (a) a disposition by a
Restricted Subsidiary to the Company or by the Company or a Restricted
Subsidiary to a Wholly Owned Subsidiary; (b) a disposition of inventory in the
ordinary course of business consistent with past practices of the Company and
its Subsidiaries; (c) for purposes of Section 4.06 only, a disposition subject
to or permitted by Section 4.04; (d) a settlement, surrender, waiver or release
of contract rights or contract, tort or other claims; (e) a grant of licenses of
intellectual property including patent, trademark and know-how; (f) a sale of
obsolete or outdated equipment no longer used or useful in the business of the
Company or its Restricted Subsidiaries in an aggregate amount not to exceed $1.0
million in any fiscal year; (g) leases and subleases (and licenses and
sublicenses) of assets that are not treated as capitalized leases on the books
and records of
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the Company or its Restricted Subsidiaries; and (h) the foreclosure upon a Lien
that was not prohibited by the Indenture and that secures any obligation of the
Company or its Subsidiaries.
"Attributable Debt" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Securities, compounded annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended).
"Average Life" means, as of the date of determination, with respect
to any Indebtedness or Preferred Stock, the quotient obtained by dividing (x)
the sum of the products of the numbers of years from the date of determination
to the dates of each successive scheduled principal payment of such Indebtedness
or redemption or similar payment with respect to such Preferred Stock multiplied
by the amount of such payment by (y) the sum of all such payments.
"Bank Indebtedness" means any and all amounts payable under or in
respect of the Credit Agreement, the other Senior Credit Documents and any
Refinancing Indebtedness with respect thereto, as amended from time to time.
"Board of Directors" means the Board of Directors of the Company or
any committee thereof duly authorized to act on behalf of such Board.
"Borrowing Base" means, as of the date of determination, an amount
equal to the sum, without duplication, of (a) 80% of the net book value of the
Company's accounts receivable at such date and (b) 50% of the net book value of
the Company's inventories at such date. Net book value shall be determined in
accordance with GAAP and shall be that reflected on the most recent available
balance sheet (it being understood that the accounts receivable and inventories
of an acquired business may be included if such acquisition has been completed
on or prior to the date of determination).
"Business Day" means a day other than a Saturday, Sunday or other
day on which banking institutions in New York State or Texas are authorized or
required by law to close.
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"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
"Capitalized Lease Obligations" means an obligation that is required
to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP. The amount of Indebtedness
represented by a Capitalized Lease Obligation shall be the capitalized amount of
such obligation determined 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.
"Change of Control" means the occurrence of any of the following
events:
(a) prior to the first public offering of Voting Stock of the
Company, the Permitted Holders either (x) cease to be the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of at least 35% of the aggregate of the total
voting power of the Voting Stock of the Company, whether as a result of
issuance of securities of the Company, any merger, consolidation,
liquidation or dissolution of the Company, any direct or indirect transfer
of securities by any Permitted Holder or otherwise, or (y) do not have the
right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors (for purposes
of this clause (a), the Permitted Holders shall be deemed to own
beneficially any Voting Stock of an entity (the "specified entity") held
by any other entity (the "parent entity") so long as the Permitted Holders
beneficially own (as so defined), directly or indirectly, in the aggregate
a majority of the voting power of the Voting Stock of the parent entity);
(b) (i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act), other than one or more Permitted Holders, is
or becomes the beneficial owner (as defined in clause (a) above, except
that such person shall be deemed to have "beneficial ownership" of all
shares that any such person has the right to acquire, whether such right
is exercisable immediately or only after the passage of time), directly or
indirectly, of more than 35% of the
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total voting power of the Voting Stock of the Company and (ii) the
Permitted Holders "beneficially own" (as defined in clause (a) above),
directly or indirectly, in the aggregate a lesser percentage of the total
voting power of the Voting Stock of the Company than such other person and
do not have the right or ability by voting power, contract or otherwise to
elect or designate for election a majority of the Board of Directors (for
the purposes of this clause (b), such other Person shall be deemed to own
beneficially any Voting Stock of a specified corporation held by a parent
corporation, if such other person "beneficially owns" (as defined in this
clause (b)), directly or indirectly, more than 35% of the voting power of
the Voting Stock of such parent corporation and the Permitted Holders
"beneficially own" (as defined in clause (a) above), directly or
indirectly, in the aggregate a lesser percentage of the voting power of
the Voting Stock of such parent corporation and do not have the right or
ability by voting power, contract or otherwise to elect or designate for
election a majority of the board of directors of such parent corporation);
or
(c) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of Directors (together
with any new directors whose election by such Board of Directors or whose
nomination for election by the shareholders of the Company was approved by
a vote of a majority of the directors of the Company then still in office
who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the Board of Directors then in
office.
"Closing Date" means December 19, 1997.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor and, for purposes of
any provision contained herein and required by the TIA, each other obligor on
the indenture securities.
"Consolidated Coverage Ratio" as of any date of determination means
the ratio of (a) the aggregate amount of EBITDA for the period of the most
recent four consecutive
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fiscal quarters ending prior to the date of such determination for which
financial statements are available to (b) Consolidated Interest Expense for such
four fiscal quarters; provided, however, that (i) if the Company or any
Restricted Subsidiary has Incurred any Indebtedness since the beginning of such
period that remains outstanding on such date of determination or if the
transaction giving rise to the need to calculate the Consolidated Coverage Ratio
is an Incurrence of Indebtedness, EBITDA and Consolidated Interest Expense for
such period shall be calculated after giving effect on a pro forma basis to such
Indebtedness as if such Indebtedness had been Incurred on the first day of such
period and the discharge of any other Indebtedness repaid, repurchased, defeased
or otherwise discharged with the proceeds of such new Indebtedness as if such
discharge had occurred on the first day of such period, (ii) if since the
beginning of such period the Company or any Restricted Subsidiary shall have
made any Asset Disposition, the EBITDA for such period shall be reduced by an
amount equal to the EBITDA (if positive) directly attributable to the assets
that are the subject of such Asset Disposition for such period or increased by
an amount equal to the EBITDA (if negative) directly attributable thereto for
such period and Consolidated Interest Expense for such period shall be reduced
by an amount equal to the Consolidated Interest Expense directly attributable to
any Indebtedness of the Company or any Restricted Subsidiary repaid,
repurchased, defeased or otherwise discharged with respect to the Company and
its continuing Restricted Subsidiaries in connection with such Asset Disposition
for such period (or, if the Capital Stock of any Restricted Subsidiary is sold,
the Consolidated Interest Expense for such period directly attributable to the
Indebtedness of such Restricted Subsidiary to the extent the Company and its
continuing Restricted Subsidiaries are no longer liable for such Indebtedness
after such sale), (iii) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made an Investment in
any Restricted Subsidiary (or any Person that becomes a Restricted Subsidiary)
or an acquisition of assets, including any acquisition of assets occurring in
connection with a transaction causing a calculation to be made hereunder, which
constitutes all or substantially all of an operating unit of a business, EBITDA
and Consolidated Interest Expense for such period shall be calculated, after
giving pro forma effect thereto (as described below), including the Incurrence
of any Indebtedness in connection therewith as if such Investment or acquisition
occurred on the first day of such period and (iv) if since the beginning of such
period any Person (that subsequently became a Restricted Subsidiary or was
merged with or into the Company
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or any Restricted Subsidiary since the beginning of such period) shall have made
any Asset Disposition or any Investment or acquisition of assets that would have
required an adjustment pursuant to clause (ii) or (iii) above if made by the
Company or a Restricted Subsidiary during such period, EBITDA and Consolidated
Interest Expense for such period shall be calculated after giving pro forma
effect thereto as if such Asset Disposition, Investment or acquisition of assets
occurred on the first day of such period. For purposes of this definition,
whenever pro forma effect is to be given to an acquisition of assets, the amount
of income or earnings relating thereto and the amount of Consolidated Interest
Expense associated with any Indebtedness Incurred in connection therewith, the
pro forma calculations shall be determined in good faith by a responsible
financial or accounting Officer of the Company. If any Indebtedness bears a
floating rate of interest and is being given pro forma effect, the interest
expense on such Indebtedness shall be calculated as if the rate in effect on the
date of determination had been the applicable rate for the entire period (taking
into account any Interest Rate Agreement applicable to such Indebtedness if such
Interest Rate Agreement has a remaining term as at the date of determination in
excess of 12 months).
"Consolidated Interest Expense" means, for any period, the total
consolidated interest expense of the Company and its Restricted Subsidiaries for
such period, plus, to the extent Incurred by the Company and its Restricted
Subsidiaries in such period but not included in such interest expense, (a)
interest expense attributable to Capitalized Lease Obligations and Attributable
Debt, (b) amortization of debt discount and debt issuance cost, (c) capitalized
interest, (d) noncash interest expense, (e) commissions, discounts and other
fees and charges with respect to letters of credit and bankers' acceptance
financing, (f) interest accruing on any Indebtedness of any other Person to the
extent such Indebtedness is Guaranteed by the Company or any Restricted
Subsidiary; provided that payments of such amounts by the Company or any
Restricted Subsidiary is being made to, or is sought by, the holders of such
Indebtedness pursuant to such Guarantee, (g) net costs associated with Hedging
Obligations (including amortization of fees), (h) interest paid or accrued in
respect of any agreement classified as a long-term obligation on the
consolidated balance sheet of the Company, (i) Preferred Stock dividends in
respect of all Preferred Stock of Subsidiaries of the Company and Disqualified
Stock of the Company held by Persons other than the Company or a Wholly Owned
Subsidiary, and (j) the cash contributions to any employee stock ownership plan
or similar trust to the extent
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such contributions are used by such plan or trust to pay interest or fees to any
Person (other than the Company) in connection with Indebtedness Incurred by such
plan or trust.
"Consolidated Net Income" means, for any period, the consolidated
net income (loss) of the Company and its Subsidiaries for such period; provided,
however, that there shall not be included in such Consolidated Net Income:
(a) any net income (loss) of any Person if such Person is not a
Restricted Subsidiary, except that (i) subject to the limitations
contained in clause (d) below, the Company's equity in the net income of
any such Person for such period shall be included in such Consolidated Net
Income up to the aggregate amount of cash actually distributed by such
Person during such period to the Company or a Restricted Subsidiary as a
dividend or other distribution (subject, in the case of a dividend or
other distribution to a Restricted Subsidiary, to the limitations
contained in clause (c) below) and (ii) the Company's equity in a net loss
of any such Person (other than an Unrestricted Subsidiary) for such period
but only to the extent of the aggregate Investment of the Company and any
Restricted Subsidiary in such Person shall be included in determining such
Consolidated Net Income;
(b) any net income (loss) of any person acquired by the Company or a
Subsidiary in a pooling of interests transaction for any period prior to
the date of such acquisition;
(c) any net income (loss) of any Restricted Subsidiary if such
Subsidiary is subject to restrictions, directly or indirectly, on the
payment of dividends or the making of distributions by such Restricted
Subsidiary, directly or indirectly, to the Company, except that (i)
subject to the limitations contained in clause (d) below, the Company's
equity in the net income of any such Restricted Subsidiary for such period
shall be included in such Consolidated Net Income up to the aggregate
amount of cash that could have been distributed by such Restricted
Subsidiary during such period to the Company or another Restricted
Subsidiary as a dividend (subject, in the case of a dividend that could
have been made to another Restricted Subsidiary, to the limitation
contained in this clause) and (ii) the Company's equity in a net loss of
any such Restricted Subsidiary for such period shall be included in
determining such Consolidated Net Income;
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(d) any gain or loss realized upon the sale or other disposition of
any asset of the Company or its consolidated Subsidiaries (including
pursuant to any Sale/Leaseback Transaction) that is not sold or otherwise
disposed of in the ordinary course of business and any gain or loss
realized upon the sale or other disposition of any Capital Stock of any
Person;
(e) any extraordinary gain or loss; and
(f) the cumulative effect of a change in accounting principles.
Notwithstanding the foregoing, for the purposes of Section 4.04 only, there
shall be excluded from Consolidated Net Income any dividends, repayments of
loans or advances or other transfers of assets from Unrestricted Subsidiaries to
the Company or a Restricted Subsidiary to the extent such dividends, repayments
or transfers increase the amount of Restricted Payments permitted under such
section pursuant to clause (a)(iv)(C)(4) thereof.
"Consolidated Net Worth" means the total of the amounts shown on the
balance sheet of the Company and the Restricted Subsidiaries, determined on a
Consolidated basis, as of the end of the most recent fiscal quarter of the
Company ending at least 45 days prior to the taking of any action for the
purpose of which the determination is being made, as (a) the par or stated value
of all outstanding Capital Stock of the Company plus (b) paid-in capital or
capital surplus relating to such Capital Stock plus (c) any retained earnings or
earned surplus less (ii) any accumulated deficit and (B) any amounts
attributable to Disqualified Stock.
"Consolidation" means the consolidation of the accounts of each of
the Restricted Subsidiaries with those of the Company in accordance with GAAP
consistently applied; provided, however, that "Consolidation" shall not include
consolidation of the accounts of any Unrestricted Subsidiary, but the interest
of the Company or any Restricted Subsidiary in a Unrestricted Subsidiary shall
be accounted for as an investment. The term "Consolidated" has a correlative
meaning.
"Credit Agreement" means the credit agreement dated as of October
14, 1997, as amended and restated as of the Closing Date and as further amended,
restated, waived or otherwise modified from time to time, among the Company and
The Chase Manhattan Bank, as agent (except to the extent that any such
amendment, waiver or other modification
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thereto would be prohibited by the terms of this Indenture, unless otherwise
agreed to by the Holders of at least a majority in aggregate principal amount of
Securities at the time outstanding).
"Currency Agreement" means, with respect to any Person, any foreign
exchange contract, currency swap agreement or other similar agreement or
arrangement as to which such Person is a party or a beneficiary.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Deferred Obligations" means any Indebtedness issued to the
employees of, stockholders of, or the holders of an equivalent equity interest
in, any entity acquired by the Company or any Restricted Subsidiary in
connection with such acquisition.
"Definitive Securities" means Securities that are in the form of
Exhibit A, Exhibit B or Exhibit C attached hereto that do not include the Global
Securities Legend therein.
"Depositary" means, with respect to the Securities issuable or
issued in whole or in part in global form, the person specified in Section 2.03
as the Depositary with respect to the Securities, until a successor shall have
been appointed and become such pursuant to the applicable provisions of this
Indenture, and thereafter, "Depositary" shall mean or include such successor.
"Designated Senior Indebtedness" means (a) the Bank Indebtedness and
(b) any other Senior Indebtedness that, at the date of determination, has an
aggregate principal amount outstanding of, or under which, at the date of
determination, the holders thereof, are committed to lend up to, at least $10.0
million and is specifically designated by the Company in the instrument
evidencing or governing such Senior Indebtedness as "Designated Senior
Indebtedness" for purposes of this Indenture. "Designated Senior Indebtedness"
of a Guarantor Subsidiary shall have a correlative meaning.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable or exercisable) or upon the
happening of any event (a) matures or is mandatorily redeemable pursuant to a
sinking fund obligation or
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11
otherwise, (b) is convertible or exchangeable for Indebtedness or Disqualified
Stock or (c) is redeemable at the option of the holder thereof, in whole or in
part, in each case on or prior to the first anniversary of the Stated Maturity
of the Securities.
"EBITDA" for any period means the Consolidated Net Income for such
period (adjusted to exclude any noncash items attributable to purchase
accounting for any acquisition transactions consummated subsequent to the
Closing Date), plus the following to the extent deducted in calculating such
Consolidated Net Income: (a) income tax expense, (b) Consolidated Interest
Expense, (c) depreciation expense, (d) amortization expense and (e) all other
noncash charges (excluding all such charges, for purposes of this clause (e), to
the extent they represent future cash disbursements reasonably expected to
materialize prior to the Stated Maturity of the Securities), in each case for
such period. Notwithstanding the foregoing, the provision for taxes based on the
income or profits of, and the depreciation and amortization of, a Subsidiary of
the Company shall be added to Consolidated Net Income to compute EBITDA only to
the extent (and in the same proportion) that the net income (loss) of such
Subsidiary was included in calculating Consolidated Net Income and only if a
corresponding amount would be permitted at the date of determination to be
dividended to the Company by such Subsidiary without prior approval (that has
not been obtained), pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to such Subsidiary or its stockholders.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange and Registration Rights Agreement" means (a) with respect
to the Original Securities, the Exchange and Registration Rights Agreement dated
December 19, 1997, among the Company, the Guarantor Subsidiaries signatory
thereto and the Initial Purchaser, as such agreement may be amended, modified,
or supplemented from time to time in accordance with the terms thereof and (b)
with respect to any Additional Securities, any registration rights agreement
entered into among the Company, any Guarantor Subsidiaries and the relevant
initial purchasers or underwriters, as the same may be amended, modified or
supplemented from time to time in accordance with the terms thereof.
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12
"Exchange Offer Registration Statement" means a registration
statement or shelf registration statement filed pursuant to any Exchange and
Registration Rights Agreement.
"Exchange Securities" means the 10 1/8% Senior Subordinated Series A
Notes due 2007 to be issued pursuant to this Indenture in connection with the
offer to exchange Securities for the Initial Securities that may be made by the
Company pursuant to an Exchange and Registration Rights Agreement.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, including those set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants, in statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession. All ratios and computations based on GAAP contained in
this Indenture shall be computed in conformity with GAAP.
"Gateway Lease" means a lease agreement between Marketing Specialist
Sales Company and ABP Partners Ltd., a Texas partnership, relating to 0000
Xxxxxxx Xxxxx, Xxxxxx, Xxxxx.
"Global Security" means a Security that is in the form of Exhibit A,
Exhibit B or Exhibit C hereto that includes the Global Securities Legend
therein.
"Global Securities Legend" means the legend set forth in the first
paragraph of Exhibit A hereto.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and any obligation, direct or indirect, contingent or
otherwise, of such Person (a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation of such other
Person (whether arising by virtue of partnership arrangements, or by agreement
to keep well, to purchase assets, goods, securities or services, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (b) entered into
for purposes of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part); provided, however, that the term
"Guarantee" shall not include endorsements for collection or deposit in the
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ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Guarantor Subsidiary" means any Person that has issued a Subsidiary
Guarantee.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such
Person at the time it becomes a Subsidiary; provided further, however, that
increases in the balance sheet carrying value of items described in clauses (d)
and (j) of the definition of the term "Indebtedness" resulting solely from
noncash accruals shall not constitute the Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(a) the principal of and premium (if any) in respect of indebtedness
of such Person for borrowed money;
(b) the principal of and premium (if any) in respect of obligations
of such Person evidenced by bonds, debentures, notes or other similar
instruments;
(c) all obligations of such Person in respect of letters of credit
or other similar instruments (including reimbursement obligations with
respect thereto);
(d) all obligations of such Person to pay the deferred and unpaid
purchase price of property (including stock or the assets of an ongoing
business) or services (except Trade Payables), which purchase price is due
more than six months after the date of placing such property in service or
taking delivery and title thereto or the completion of such services, to
the extent not included in clause (j) below;
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(e) all Capitalized Lease Obligations and all Attributable Debt of
such Person;
(f) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock or,
with respect to any Subsidiary of the Company, any Preferred Stock (but
excluding, in each case, any accrued dividends);
(g) all Indebtedness of other Persons secured by a Lien on any asset
of such Person, whether or not such Indebtedness is assumed by such
Person; provided, however, that the amount of Indebtedness of such Person
shall be the lesser of (i) the fair market value of such asset at such
date of determination and (ii) the amount of such Indebtedness of such
other Persons;
(h) all Indebtedness of other Persons to the extent Guaranteed by
such Person;
(i) to the extent not otherwise included in this definition, Hedging
Obligations of such Person; and
(j) with respect to the Company and its Restricted Subsidiaries,
covenants not to compete, deferred payment agreements and deferred
compensation liabilities, in each case to the extent reflected on the
consolidated balance sheet of the Company as long-term obligations.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and the
maximum liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations at such date, except with respect to
the items set forth in clauses (d) and (j) of this definition, in which case the
amount of such Indebtedness at any date shall be the amount recorded in
accordance with GAAP on such Person's balance sheet for the most recent fiscal
period for which financial statements are available.
"Indenture" means this Indenture as amended or supplemented from
time to time.
"Initial Purchaser" means Chase Securities Inc.
"Interest Rate Agreement" means, with respect to any Person, any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement,
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interest rate collar agreement, interest rate hedge agreement or other similar
agreement or arrangement as to which such Person is party or a beneficiary.
"Investment" in any Person means any direct or indirect advance,
loan (other than advances to customers in the ordinary course of business that
are recorded as accounts receivable on the balance sheet of such Person) or
other extension of credit (including by way of Guarantee or similar arrangement)
or capital contribution to (by means of any transfer of cash or other property
to others or any payment for property or services for the account or use of
others), or any purchase or acquisition of Capital Stock, Indebtedness or other
similar instruments issued by such Person. For purposes of the definition of
"Unrestricted Subsidiary" and Section 4.04, (a) "Investment" shall include the
portion (proportionate to the Company's equity interest in such Subsidiary) of
the fair market value of the net assets of any Subsidiary of the Company at the
time that such Subsidiary is designated an Unrestricted Subsidiary; provided,
however, that upon a redesignation of such Subsidiary as a Restricted
Subsidiary, the Company shall be deemed to continue to have a permanent
"Investment" in an Unrestricted Subsidiary in an amount (if positive) equal to
(x) the Company's "Investment" in such Subsidiary at the time of such
redesignation less (y) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the fair market value of the net assets of such
Subsidiary at the time of such redesignation; and (b) any property transferred
to or from an Unrestricted Subsidiary shall be valued at its fair market value
at the time of such transfer, in each case as determined in good faith by the
Board of Directors.
"Issue Date" means the date on which any Initial Securities are
originally issued.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"Management Stockholders" means Xxxxxx X. Xxxxxxxx, Xxxx X. Xxxxxx
and Xxxxx X. Xxxxxx.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Net Available Cash" from an Asset Disposition means cash payments
received (including any cash payments received by way of deferred payment of
principal pursuant to
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a note or installment receivable or otherwise, but only as and when received,
but excluding any other consideration received in the form of assumption by the
acquiring person of Indebtedness or other obligations relating to the properties
or assets that are the subject of such Asset Disposition or received in any
other non-cash form) therefrom, in each case net of (a) all legal, title and
recording expenses, commissions and other fees and expenses incurred, and all
Federal, state, provincial, foreign and local taxes required to be paid or
accrued as a liability under GAAP, as a consequence of such Asset Disposition,
(b) all payments made on any Indebtedness which is secured by any assets subject
to such Asset Disposition, in accordance with the terms of any Lien upon such
assets, or which must by its terms, 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, (c) all distributions and other payments required to be
made to minority interest holders in Subsidiaries or joint ventures as a result
of such Asset Disposition and (d) appropriate amounts to be provided by the
party or parties making such Asset Disposition as a reserve, in accordance with
GAAP, against any liabilities associated with the assets disposed of in such
Asset Disposition and retained by the Company or any Restricted Subsidiary after
such Asset Disposition.
"Net Cash Proceeds", with respect to any issuance or sale of Capital
Stock, means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the
Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers
or by one Officer and by an Assistant Treasurer or an Assistant Secretary.
"Opinion of Counsel" means a written opinion from legal counsel who
is acceptable to the Trustee. The counsel may be an employee of or counsel to
the Company or the Trustee.
"Permitted Holders" means Richmont Enterprises LLC, a Delaware
limited liability company controlled by
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certain Affiliates of Richmont Capital Partners I, L.P., a Delaware limited
partnership, JR Investment Corp., a Delaware corporation (including Xxxx X.
Xxxxxx and the other current stockholders of JR Investment Corp.), MS
Acquisition Limited, a Delaware limited partnership, the Management Stockholders
and any of their respective Affiliates (including any Person owned or controlled
by any such Person, any member of any such Person's family, any trust for the
benefit of any such Person (or a member of his family) or any Person owned or
controlled by any of the foregoing) and any Person acting in the capacity of an
underwriter in connection with a public or private offering of the Company's
Capital Stock.
"Permitted Investment" means an Investment by the Company or any
Restricted Subsidiary in (a) a Restricted Subsidiary or a Person that will, upon
the making of such Investment, become a Restricted Subsidiary; provided,
however, that the primary business of such Restricted Subsidiary is a Related
Business; (b) another Person if as a result of such Investment such other Person
is merged or consolidated with or into, or transfers or conveys all or
substantially all its assets to, the Company or a Restricted Subsidiary;
provided, however, that such Person's primary business is a Related Business;
(c) Temporary Cash Investments; (d) receivables owing to the Company or any
Restricted Subsidiary, if created or acquired in the ordinary course of business
consistent with past practices of the Company or such Restricted Subsidiary and
payable or dischargeable in accordance with customary trade terms; provided,
however, that such trade terms may include such concessionary trade terms as the
Company or any such Restricted Subsidiary deems reasonable under the
circumstances; (e) payroll, travel and similar advances to cover matters that
are expected at the time of such advances ultimately to be treated as expenses
for accounting purposes and that are made in the ordinary course of business;
(f) loans or advances to employees made in the ordinary course of business
consistent with past practices of the Company or such Restricted Subsidiary and
not exceeding $500,000 in the aggregate outstanding at any time; (g) stock,
obligations or securities received in settlement of debts created in the
ordinary course of business and owing to the Company or any Restricted
Subsidiary or in satisfaction of judgments; (h) a Person engaged in a Related
Business; provided, however, that no Permitted Investments may be made pursuant
to this clause (h) to the extent the amount thereof would, when taken together
with all other Permitted Investments made pursuant to this clause (h), exceed
$5.0 million in the aggregate outstanding at any time (other than Permitted
Investments in Persons which become
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Restricted Subsidiaries); (i) any Person to the extent such Investment
represents the noncash portion of the consideration from an Asset Disposition
permitted pursuant to and in compliance with Section 4.06; and (j) Securities
repurchased pursuant to an offer described in Section 4.08 or Section 4.06 or
otherwise purchased by the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Principal" of a Security means the principal of the Security plus
the premium, if any, payable on the Security that is due or overdue or is to
become due at the relevant time.
"Private Exchange" shall have the meaning set forth in the Exchange
and Registration Rights Agreement.
"Private Exchange Securities" means Securities of the Company to be
delivered in a Private Exchange pursuant to the Exchange and Registration Rights
Agreement.
"Public Equity Offering" means an underwritten public offering of
common stock of the Company pursuant to an effective registration statement
under the Securities Act.
"Public Market" means any time after (a) a Public Equity Offering
has been consummated and (b) at least 15% of the total issued and outstanding
common stock of the Company has been distributed by means of an effective
registration statement under the Securities Act or sales under Rule 144 under
the Securities Act.
"Purchase Agreement" means (a) with respect to the Original
Securities, the Purchase Agreement dated December 19, 1997, for the purchase of
$100,000,000 principal amount of Original Securities among the Company, the
Guarantor Subsidiaries signatory thereto and the Initial Purchaser as such
agreement may be amended, modified, or
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supplemented from time to time in accordance with the terms thereof and (b) with
respect to any Additional Securities, any purchase or underwriting agreement
entered into by the Company, any Guarantor Subsidiaries and the initial
purchasers or underwriters with respect thereto, as such agreement may be
amended, modified or supplemented from time to time in accordance with the terms
thereof.
"Purchase Money Indebtedness" means Indebtedness (a) consisting of
the deferred purchase price of tangible property, conditional sale obligations,
obligations under any title retention agreement and other purchase money
obligations, in each case where the maturity of such Indebtedness does not
exceed the anticipated useful life of the asset being financed, and (b) incurred
to finance the acquisition by the Company of such asset, including additions and
improvements; provided, however, that any Lien arising in connection with any
such Indebtedness shall be limited to the specified asset being financed or, in
the case of real property or fixtures, including additions and improvements, the
real property on which such asset is attached; and provided further, that such
Indebtedness is incurred within 180 days after the acquisition by the Company of
such asset.
"Refinancing Indebtedness" means Indebtedness that is Incurred to
refund, refinance, replace, renew, repay or extend (including pursuant to any
defeasance or discharge mechanism) (collectively, "refinances" and "refinanced"
shall have a correlative meaning) any Indebtedness existing on the Closing Date
or Incurred in compliance with this Indenture (including Indebtedness of the
Company that refinances Indebtedness of any Restricted Subsidiary (to the extent
permitted in this Indenture) and Indebtedness of any Restricted Subsidiary that
refinances Indebtedness of another Restricted Subsidiary), including
Indebtedness that refinances Refinancing Indebtedness; provided, however, that
(a) the Refinancing Indebtedness has a Stated Maturity no earlier than the
Stated Maturity of the Indebtedness being refinanced, (b) the Refinancing
Indebtedness has an Average Life at the time such Refinancing Indebtedness is
Incurred that is equal to or greater than the Average Life of the Indebtedness
being refinanced, (c) such Refinancing Indebtedness is Incurred in an aggregate
principal amount (or, if issued with original issue discount, an aggregate issue
price) that is equal to or less than the aggregate principal amount (or, if
issued with original issue discount, the aggregate accreted value) then
outstanding of the Indebtedness being refinanced and (d) if the Indebtedness
being refinanced is subordinated in right of payment to the Securities, such
Refinancing Indebtedness is
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subordinated in right of payment to the Securities to the extent of the
Indebtedness being refinanced; provided further, however, that Refinancing
Indebtedness shall not include (i) Indebtedness of a Restricted Subsidiary that
refinances Indebtedness of the Company or (ii) Indebtedness of the Company or a
Restricted Subsidiary that refinances Indebtedness of an Unrestricted
Subsidiary.
"Registered Exchange Offer" shall mean an offer made by the Company
pursuant to an Exchange and Registration Rights Agreement and under an effective
registration statement under the Securities Act to exchange Exchange Securities
for outstanding Initial Securities substantially identical in all material
respects to such Initial Securities (except for the differences provided for
therein).
"Related Business" means any business related, ancillary or
complementary to the businesses of the Company and the Restricted Subsidiaries
on the Closing Date.
"Representative" means the trustee, agent or representative (if any)
for an issue of Senior Indebtedness.
"Restricted Securities Legend" means the legend set forth in the
second and third paragraphs of Exhibit A hereto.
"Restricted Subsidiary" means any Subsidiary of the Company other
than an Unrestricted Subsidiary.
"S&P" means Standard and Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc., and its successors.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired by the Company or a Restricted
Subsidiary whereby the Company or such Restricted Subsidiary transfers such
property to a Person and the Company or such Restricted Subsidiary leases it
from such Person, other than leases between the Company and a Wholly Owned
Subsidiary or between Wholly Owned Subsidiaries.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Company secured
by a Lien. "Secured Indebtedness" of a Guarantor Subsidiary has a correlative
meaning.
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"Securities" means, collectively, the Initial Securities and, when
and if issued as provided in the Exchange and Registration Rights Agreement, the
Exchange Securities and when and if issued as provided in the Exchange and
Registration Rights Agreement, the Private Exchange Securities from and after
the issuance of any Additional Securities (but not for purposes of determining
whether such issuance is permitted hereunder), "Securities" shall include such
Additional Securities for purposes of this Indenture and all Exchange Securities
and Private Exchange Securities from time to time issued with respect to any
Initial Securities that constitute such Additional Securities. Such Securities,
including any such Additional Securities, shall vote together as one series of
Securities under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" or "Custodian" means the custodian with
respect to any Global Security (as appointed by the Depositary), or any
successor entity thereto covered in Section 2.03.
"Senior Credit Documents" means the collective reference to the
Credit Agreement, the notes issued pursuant thereto (if any) and the Guaranty
thereof, and the Borrower's Security Agreement and the Subsidiary Security
Agreement, each as defined in the Credit Agreement.
"Senior Indebtedness" of the Company means the principal of, premium
(if any) and interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization of the Company, regardless of
whether or not a claim for post-filing interest is allowed in such proceedings)
on, and fees and other amounts owing in respect of, Bank Indebtedness of the
Company and all other Indebtedness of the Company, whether outstanding on the
Closing Date or thereafter Incurred, unless in the instrument creating or
evidencing the same or pursuant to which the same is outstanding it is provided
that such obligations are not superior in right of payment to the Securities;
provided, however, that Senior Indebtedness shall not include (a) any obligation
of the Company to any Subsidiary, (b) any liability for federal, state, local or
other taxes owed or owing by the Company, (c) any accounts payable or other
liability of the Company to trade creditors arising in the ordinary course of
business (including Guarantees thereof or instruments evidencing such
liabilities), (d) any Indebtedness or obligation of the Company that by its
terms is subordinate or junior in any respect to
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any other Indebtedness, Guarantee or obligation of the Company, including any
Senior Subordinated Indebtedness and any Subordinated Obligations, (e) any
obligations of the Company with respect to any Capital Stock, (f) any
Indebtedness Incurred in violation of the Indenture, (g) any Indebtedness issued
to the shareholders of Atlas in connection with the Atlas Acquisition or (h) any
Deferred Obligation of the Company. If any Senior Indebtedness is disallowed,
avoided or subordinated pursuant to the provisions of Section 548 of Title 11 of
the United States Code or any applicable state fraudulent conveyance law, such
Senior Indebtedness nevertheless shall constitute Senior Indebtedness. "Senior
Indebtedness" of any Guarantor Subsidiary has a correlative meaning.
"Senior Subordinated Indebtedness" means the Securities and any
other Indebtedness of the Company that specifically provides that such
Indebtedness is to rank pari passu with the Securities and is not subordinated
by its terms to any Indebtedness or other obligation of the Company which is not
Senior Indebtedness. "Senior Subordinated Indebtedness" of a Guarantor
Subsidiary has a correlative meaning.
"Significant Subsidiary" means any Restricted Subsidiary that would
be a "Significant Subsidiary" of the Company within the meaning of Rule 1-02
under Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the repurchase
of such security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has
occurred).
"Subordinated Obligation" means any Indebtedness of the Company
(whether outstanding on the Closing Date or thereafter Incurred) that is
subordinate or junior in right of payment to the Securities pursuant to a
written agreement. "Subordinated Obligation" of a Guarantor Subsidiary has a
correlative meaning.
"Subsidiary" of any Person means any corporation, association,
partnership, limited liability company or other business entity of which more
than 50% of the total voting power of shares of Capital Stock or other interests
(including partnership interests) entitled (without regard
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23
to the occurrence of any contingency) to vote in the election of directors,
managers, trustees, or members of any other governing body thereof is at the
time owned or controlled, directly or indirectly, by (a) such Person or (b) one
or more Subsidiaries of such Person.
"Subsidiary Guarantee" means any Guarantee of the Securities which
may from time to time be executed and delivered pursuant to the terms of this
Indenture. Each such Subsidiary Guarantee shall have subordination provisions
equivalent to those contained in this Indenture and shall be substantially in
the form of Exhibit E hereto.
"Temporary Cash Investments" means any of the following: (a) any
investment in direct obligations of the United States of America or any agency
thereof or obligations Guaranteed by the United States of America or any agency
thereof, (b) investments in time deposit accounts, certificates of deposit and
money market deposits maturing within 180 days of the date of acquisition
thereof issued by a bank or trust company that is organized under the laws of
the United States of America, any state thereof or any foreign country
recognized by the United States of America having capital, surplus and undivided
profits aggregating in excess of $250.0 million (or the foreign currency
equivalent thereof) and whose long-term debt is rated "A" (or such similar
equivalent rating) or higher by at least one nationally recognized statistical
rating organization (as defined in Rule 436 under the Securities Act), (c)
repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in clause (a) above entered into with a bank
meeting the qualifications described in clause (b) above, (d) investments in
commercial paper, maturing not more than 90 days after the date of acquisition,
issued by a corporation (other than an Affiliate of the Company) organized and
in existence under the laws of the United States of America or any foreign
country recognized by the United States of America with a rating at the time as
of which any investment therein is made of "P-1" (or higher) according to
Xxxxx'x or "A-1" (or higher) according to S&P, and (e) investments in securities
with maturities of six months or less from the date of acquisition issued or
fully guaranteed by any state, commonwealth or territory of the United States of
America, or by any political subdivision or taxing authority thereof, and rated
at least "A" by S&P or "A" by Xxxxx'x.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb) as in effect on the date of this Indenture.
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"Trade Payables" means, with respect to any Person, any accounts
payable or any indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person arising in the ordinary course of business
in connection with the acquisition of goods or services.
"Transfer Restricted Securities" means Securities that bear or are
required to bear the Restricted Securities Legend.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"Trust Officer" means the Chairman of the Board, the President or
any other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform Commercial Code
as in effect from time to time.
"Unrestricted Subsidiary" means (a) any Subsidiary of the Company
that at the time of determination shall be designated an Unrestricted Subsidiary
by the Board of Directors in the manner provided below and (b) any Subsidiary of
an Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary
of the Company (including any newly acquired or newly formed Subsidiary of the
Company) to be an Unrestricted Subsidiary unless such Subsidiary or any of its
Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds any
Lien on any property of, the Company or any other Restricted Subsidiary of the
Company that is not a Subsidiary of the Subsidiary to be so designated;
provided, however, that either (i) the Subsidiary to be so designated has total
Consolidated assets of $1,000 or less or (ii) if such Subsidiary has
Consolidated assets greater than $1,000, then such designation would be
permitted under Section 4.04. The Board of Directors may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided, however, that
immediately after giving effect to such designation (x) the Company could Incur
$1.00 of additional Indebtedness under Section 4.03(a) and (y) no Default shall
have occurred and be continuing. Any such designation of a Subsidiary as a
Restricted Subsidiary or Unrestricted Subsidiary by the Board of Directors shall
be evidenced to the Trustee by promptly filing with the Trustee a copy of the
resolution of the Board of Directors giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing provisions.
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"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock of
such Person then outstanding that normally entitle the holders of such interests
to participate in the management or to elect those participating in the
management of such Person.
"Wholly Owned Subsidiary" means a Restricted Subsidiary of the
Company all the Capital Stock or other ownership interests of which (other than
directors' qualifying shares) is owned by the Company or another Wholly Owned
Subsidiary.
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- -------
"Affiliate Transaction"....................................... 4.07
"Agent Members"............................................... 2.13
"Bankruptcy Law".............................................. 6.01
"Blockage Notice"............................................. 10.03
"covenant defeasance option".................................. 8.01(b)
"Custodian"................................................... 6.01
"Event of Default"............................................ 6.01
"IAIs"........................................................ 2.01(b)
"IAI Global Security"......................................... 2.01(b)
"Initial Securities".......................................... Preamble
"legal defeasance option"..................................... 8.01(b)
"Legal Holiday"............................................... 13.08
"Obligations"................................................. 11.01
"Offer"....................................................... 4.06(b)
"Offer Amount"................................................ 4.06(c)
"Offer Period"................................................ 4.06(c)
"Paying Agent"................................................ 2.03
"Payment Blockage Period"..................................... 10.03
"Physical Securities"......................................... 2.01(c)
"Purchase Date"............................................... 4.06(c)
"QIB Global Security"......................................... 2.01(b)
"QIBs"........................................................ 2.01(b)
"Registrar"................................................... 2.03
"Regulation S"................................................ 2.01(b)
"Regulation S Global Security"................................ 2.01(b)
"Restricted Payment".......................................... 4.04(a)
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"Successor Company"........................................... 5.01
"U.S. Global Securities"...................................... 2.01(b)
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
This Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities and the Subsidiary
Guarantees.
"indenture Securityholder" 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, the
Subsidiary Guarantees and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) "including" means including without limitation;
(e) words in the singular include the plural and words in the plural
include the singular;
(f) unsecured Indebtedness shall not be deemed to be subordinate or
junior to Secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
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(g) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof that
would be shown on a balance sheet of the issuer dated such date prepared
in accordance with GAAP; but the accretion of principal on such security
shall not be deemed to be the Incurrence of Indebtedness; and
(h) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater.
ARTICLE II
The Securities
SECTION 2.01. Form and Dating. (a) The Original Securities and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A, which is hereby incorporated in and expressly made a part of this
Indenture, and as otherwise provided in this Article II. Any Exchange Securities
and the Trustee's certificate of authentication shall be substantially in the
form of Exhibit B, which is hereby incorporated in and expressly made a part of
this Indenture, and as otherwise provided in this Article II. Any Private
Exchange Securities and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit C, which is hereby incorporated in and
expressly made a part of this Indenture, and as otherwise provided in this
Article II. Any Additional Securities shall be issued in the form of either (i)
Exhibit A, if such Security is a Transfer Restricted Security, or (ii) Exhibit
B, if such Security is not a Transfer Restricted Security. The Securities may
have notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Company or any Guarantor Subsidiary is subject, if any,
or usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Company). Each Security shall be dated the date of its
authentication. The terms of the Securities set forth in Exhibit A, Exhibit B
and Exhibit C are part of the terms of this Indenture. The Securities shall be
issuable only in registered form without coupons and only in denominations of
$1,000 and integral multiples thereof.
(b) The Original Securities issued on the date hereof are being
offered and sold by the Company pursuant to the Purchase Agreement. The Original
Securities shall be
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offered and sold by the Initial Purchaser only (i) to "qualified institutional
buyers" (as defined in Rule 144A under the Securities Act ("Rule 144A"))
("QIBs") and (ii) in reliance on Regulation S under the Securities Act
("Regulation S"). The Additional Securities may be issued and sold as provided
in the related Purchase Agreement. After such initial offers and sales, Initial
Securities that are Transfer Restricted Securities may be transferred to, among
others, QIBS, in reliance on Regulation S and to institutional "Accredited
Investors" (within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) ("IAIs") in accordance with certain transfer restrictions.
Initial Securities that are Transfer Restricted Securities shall be issued
initially in the form of several permanent Global Securities (with separate
CUSIP numbers) substantially in the form set forth in Exhibit A deposited with
the Trustee, as Securities Custodian, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. One or more such Global
Securities shall represent the Initial Securities sold to QIBs (collectively,
the "QIB Global Security"). One or more such Global Securities shall represent
the Initial Securities sold pursuant to Regulation S (collectively, the
"Regulation S Global Security"). One or more such Global Securities shall
represent any Initial Securities issued or subsequently transferred to IAIs
(collectively, the "IAI Global Security" and, together with the QIB Global
Security, the "U.S. Global Securities"). The aggregate principal amount of each
Global Security may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as Securities Custodian. Transfers of
Initial Securities between QIBs and IAIs and to or by purchasers pursuant to
Regulation S shall be represented by appropriate increases and decreases to the
respective amounts of the appropriate Global Securities, as more fully provided
in Section 2.14.
(c) Except as otherwise provided in the related Purchase Agreement,
Initial Securities offered and sold other than as described in the preceding two
paragraphs, if any, shall be issued in the form of permanent certificated
Securities in registered form in substantially the form set forth in Exhibit A
attached hereto without the Global Securities Legend (the "Physical
Securities").
SECTION 2.02. Execution and Authentication. One or more Officers of
the Company shall sign the Securities by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee
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authenticates the Security, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate and make available for delivery upon
a written order of the Company signed by two of its Officers (a) Initial
Securities for original issue on the date hereof in an aggregate principal
amount of $100,000,000, (b) subject to Section 4.03, Additional Securities in an
aggregate principal amount of up to $50,000,000 and (c) (i) Exchange Securities
for issue only in a Registered Exchange Offer, and (ii) Private Exchange
Securities for issue only in a Private Exchange, in the case of each of clauses
(i) and (ii) pursuant to a Registration Rights Agreement and for Initial
Securities for a like principal amount of Initial Securities exchanged pursuant
thereto. Such order shall specify the amount of the Securities to be
authenticated, the date on which the original issue of Securities is to be
authenticated and whether the Securities are to be Initial Securities,
Additional Securities, Exchange Securities or Private Exchange Securities. The
aggregate principal amount of Securities outstanding at any time may not exceed
$150,000,000 except as provided in Section 2.07.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Securities. Any such appointment
shall be evidenced by an instrument signed by a Trust Officer of the Trustee, a
copy of which shall be furnished to the Company. Unless limited by the terms of
such appointment, an authenticating agent may authenticate Securities whenever
the Trustee may do so. After any such appointment, each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as any Registrar, Paying
Agent or agent for service of notices and demands.
SECTION 2.03. Registrar and Paying Agent. The Company shall maintain
an office or agency where Securities may be presented for registration of
transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the Securities and of their transfer and exchange. The
Company may have one or more co-registrars and one or more
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additional paying agents. The term "Paying Agent" includes any additional paying
agent.
The Company shall enter into an appropriate agency agreement with
any Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. Either
the Company or any domestically organized Wholly Owned Subsidiary may act as
Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and Paying
Agent in connection with the Securities.
The Company initially appoints The Depository Trust Company to act
as Depositary with respect to the Global Securities, and the Trustee shall
initially be the Securities Custodian with respect to the Global Securities.
The Company may remove any Registrar or Paying Agent upon written
notice to such Registrar or Paying Agent and to the Trustee, provided, however,
that no such removal shall become effective until (a) acceptance of an
appointment by a successor as evidenced by an appropriate agreement entered into
by the Company and such successor Registrar or Paying Agent, as the case may be,
and delivered to the Trustee or (b) notification to the Trustee that the Trustee
shall serve as Registrar or Paying Agent until the appointment of a successor in
accordance with clause (a) above. The Registrar or Paying Agent may resign at
any time upon not less than three Business Days' prior written notice to the
Company; provided, however, that the Trustee may resign as Paying Agent or
Registrar only if the Trustee also resigns as Trustee in accordance with Section
7.08.
SECTION 2.04. Paying Agent To Hold Money in Trust. Prior to each due
date of the principal and interest on any Security, the Company shall deposit
with the Paying Agent (or if the Company or a Wholly Owned Subsidiary is acting
as Paying Agent, segregate and hold in trust for the benefit of the Persons
entitled thereto) a sum sufficient to pay such principal and interest when so
becoming due. The Company shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent shall
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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 and shall notify the Trustee in writing of any default by the Company
in making any such payment within one Business Day thereof. If the Company or a
Wholly Owned Subsidiary acts as Paying Agent, it shall segregate the money held
by it as Paying Agent and hold it as a separate trust fund. The Company at any
time may require a Paying Agent to pay all money held by it to the Trustee and
to account for any funds disbursed by the Paying Agent. Upon complying with this
Section, the Paying Agent shall have no further liability for the money
delivered to the Trustee.
Any money deposited with any Paying Agent, or then held by the
Company or a Wholly Owned Subsidiary in trust for the payment of principal or
interest on any Security and remaining unclaimed for two years after such
principal and interest has become due and payable shall be paid to the Company
at its request, or, if then held by the Company or a Wholly Owned Subsidiary,
shall be discharged from such trust; and the Securityholders shall thereafter,
as general unsecured creditors, look only to the Company for payment thereof,
and all liability of the Paying Agent with respect to such money, and all
liability of the Company or such Wholly Owned Subsidiary as trustee thereof,
shall thereupon cease.
SECTION 2.05. Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall furnish, or cause the Registrar to furnish, to the
Trustee, in writing at least five Business Days before each interest payment
date and at such other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably require of the names
and addresses of Securityholders.
SECTION 2.06. Transfer and Exchange. The Securities shall be issued
in registered form and shall be transferable only upon the surrender of a
Security for registration of transfer. When a Security is presented to the
Registrar or a co-registrar with a request to register a transfer, the Registrar
shall register the transfer as requested if the requirements of Section 8-401 of
the Uniform Commercial Code are met. When Securities are presented to the
Registrar or a co-registrar with a request to exchange them for an equal
principal amount of Securities of other denominations, the Registrar shall make
the
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exchange as requested if the same requirements are met. To permit registration
of transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Securities at the Registrar's or co-registrar's request. The
Company may require payment of a sum sufficient to pay all taxes, assessments or
other governmental charges in connection with any transfer or exchange pursuant
to this Section. The Company shall not be required to make, and the Registrar
need not register, transfers or exchanges of Securities selected for redemption
(except, in the case of Securities to be redeemed in part, the portion thereof
not to be redeemed) or transfers or exchanges of any Securities for a period of
15 days before a selection of Securities to be redeemed.
Prior to the due presentation for registration of transfer of any
Security, the Company, the Guarantor Subsidiaries, the Trustee, the Paying
Agent, the Registrar or any co-registrar may deem and treat the Person in whose
name a Security is registered as the absolute owner of such Security for the
purpose of receiving payment of principal of and accrued and unpaid interest and
Liquidated Damages, if any, on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and none of the Company,
the Trustee, the Paying Agent, the Registrar or any co-registrar shall be
affected by notice to the contrary.
Any Holder of a Global Security shall, by acceptance of such Global
Security, agree that transfers of beneficial interests in such Global Security
may be effected only through a book-entry system maintained by (a) the Holder of
such Global Security (or its agent) or (b) any holder of such beneficial
interest, and that ownership of a beneficial interest in such Global Security
shall be required to be reflected in a book entry.
All Securities issued upon any transfer or exchange pursuant to this
Section 2.06 will evidence the same debt and will be entitled to the same
benefits under this Indenture as the Securities surrendered upon such transfer
or exchange.
SECTION 2.07. Replacement Securities. If a mutilated Security is
surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met, such that the Holder (a)
satisfies the Company or the Trustee within a reasonable time after he has
notice of
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such loss, destruction or wrongful taking and the Registrar does not register a
transfer prior to receiving such notification, (b) makes such request to the
Company or the Trustee prior to the Security being acquired by a protected
purchaser as defined in Section 8-303 of the Uniform Commercial Code (a
"protected purchaser") and (c) satisfies any other reasonable requirements of
the Trustee and the Company including evidence of the destruction, loss or theft
of the Security. If required by the Trustee or the Company, such Holder shall
furnish an indemnity bond sufficient in the judgment of the Trustee to protect
the Company, the Trustee, the Paying Agent, the Registrar and any co-registrar
from any loss that any of them may suffer if a Security is replaced. The Company
and the Trustee may charge the Holder for their expenses in replacing a Security
including the payment of a sum sufficient to cover any tax or other governmental
charge that may be required. In the event any such mutilated, lost, destroyed or
wrongfully taken Security has become or is about to become due and payable, the
Company in its discretion may pay such Security instead of issuing a new
Security in replacement thereof.
Every replacement Security is an additional obligation of the
Company.
The provisions of this Section 2.07 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, lost, destroyed or wrongfully taken
Securities.
SECTION 2.08. Outstanding Securities. Securities outstanding at any
time are all Securities authenticated by the Trustee except for those canceled
by it, those delivered to it for cancelation and those described in this Section
as not outstanding. A Security does not cease to be outstanding because the
Company or an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a protected purchaser.
If the Paying Agent segregates and holds in trust, in accordance
with this Indenture, on a redemption date or maturity date money sufficient to
pay all principal and interest payable on that date with respect to the
Securities (or portions thereof) to be redeemed or maturing, as the case may be,
and the Paying Agent is not prohibited from paying such money to the
Securityholders on that date pursuant to the terms of this Indenture, then on
and after
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that date such Securities (or portions thereof) cease to be outstanding and
interest on them ceases to accrue.
SECTION 2.09. Temporary Securities. Until Definitive Securities and
Global Securities are ready for delivery, the Company may prepare and the
Trustee shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of Definitive Securities but may have variations that
the Company considers appropriate for temporary Securities. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate Definitive
Securities and deliver them in exchange for temporary Securities upon surrender
of such temporary Securities at the office or agency of the Company, without
charge to the Holder.
SECTION 2.10. Cancelation. The Company at any time may deliver
Securities to the Trustee for cancelation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment or
cancelation and deliver canceled Securities to the Company pursuant to written
direction by an Officer of the Company. The Company may not issue new Securities
to replace Securities it has redeemed, paid or delivered to the Trustee for
cancelation. The Trustee shall not authenticate Securities in place of canceled
Securities other than pursuant to the terms of this Indenture.
SECTION 2.11. Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, the Company shall pay the defaulted
interest (plus interest on such defaulted interest to the extent lawful) in any
lawful manner. The Company may pay the defaulted interest to the persons who are
Securityholders on a subsequent special record date. The Company shall fix or
cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail or cause to be
mailed to each Securityholder a notice that states the special record date, the
payment date and the amount of defaulted interest to be paid.
The Company may make payment of any defaulted interest in any other
lawful manner not inconsistent with the requirements (if applicable) of any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment
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pursuant to this paragraph, such manner of payment shall be deemed practicable
by the Trustee.
SECTION 2.12. CUSIP Numbers. The Company in issuing the Securities
may use "CUSIP" numbers (if then generally in use) and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided, however, that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
SECTION 2.13. Book-Entry Provisions for Global Securities. (a) Each
Global Security initially shall (i) be registered in the name of the Depositary
for such Global Security or the nominee of such Depositary and (ii) be delivered
to the Trustee as the initial Securities Custodian for such Depositary.
Beneficial interests in Global Securities may be held indirectly through members
of or participants in ("Agent Members") the Depositary (including Cedel and
Euroclear in the case of the Regulation S Global Security).
Agent Members shall have no rights under this Indenture with respect
to any Global Security held on their behalf by the Depositary, or the Trustee as
Securities Custodian, or under such Global Security, and the Depositary may be
treated by the Company, the Trustee and any agent of the Company or the Trustee
as the absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or shall impair, as between the Depositary and its Agent Members, the operation
of customary practices governing the exercise of the rights of a Holder of any
Security.
(b) Transfers of a Global Security shall be limited to transfers of
such Global Security in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred in accordance with the rules and procedures
of the Depositary (and Agent Member, if applicable) and the provisions of
Section 2.14. The Trustee shall register the transfer of Physical Securities to
all beneficial owners in exchange for their beneficial interests in a Global
Security if (i) the Depositary notifies the
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Company that it is unwilling or unable to continue as Depositary for such Global
Security or the Depositary ceases to be a clearing agency registered under the
Exchange Act, at a time when the Depositary is required to be so registered in
order to act as Depositary, and in each case a successor Depositary is not
appointed by the Company within 90 days of such notice, or (ii) the Company
executes and delivers to the Trustee and Registrar an Officers' Certificate
stating that such Global Security shall be so exchangeable or (iii) an Event of
Default has occurred and is continuing and the Registrar has received a request
from the Depositary to permit such transfers. Notwithstanding the previous
sentence, in no event shall Physical Securities be delivered to investors who
purchased Securities in reliance on Regulation S prior to the day that is 40
days after the Issue Date with respect to such Securities.
(c) The registered holder of a Global Security may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action that a Holder is
entitled to take under this Indenture or the Securities.
SECTION 2.14. Special Transfer Provisions. Unless and until a
Transfer Restricted Security is transferred or exchanged under an effective
registration statement under the Securities Act, the following provisions shall
apply:
(a) Transfers to Non-QIB IAIs. Unless otherwise specified in the
relevant Purchase Agreement, the minimum amount of Securities that may be
purchased by an IAI that is not a QIB is $250,000. The following
provisions shall apply with respect to the registration of any proposed
transfer of a Transfer Restricted Security to any IAI that is not a QIB
(other than pursuant to Regulation S):
(i) The Registrar shall register the transfer of any Transfer
Restricted Security by a Holder if (x) the requested transfer is (A)
at least two years after the later of (1) the Issue Date with
respect to such Transfer Restricted Security and (2) the date such
Transfer Restricted Security was acquired from an affiliate of the
Company and (B) at least three months after the last date such
Holder was an affiliate of the Company or (y) the proposed
transferee has delivered to the Registrar a letter substantially in
the form set forth in Exhibit D hereto.
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(ii) If the proposed transferee is an Agent Member and the
Transfer Restricted Security to be transferred consists of a
beneficial interest in the QIB Global Security or the Regulation S
Global Security, upon receipt by the Registrar of (x) the letter, if
any, required by paragraph (i) above and (y) instructions given in
accordance with the Depositary's and the Registrar's procedures
therefor, the Registrar shall reflect on its books and records the
date and an increase in the principal amount of the IAI Global
Security in an amount equal to the principal amount of the
beneficial interest in the QIB Global Security or the Regulation S
Global Security to be so transferred and the Registrar shall reflect
on its books and records the date and an appropriate decrease in the
principal amount of such QIB Global Security or Regulation S Global
Security.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Transfer
Restricted Security to a QIB (other than pursuant to Regulation S):
(i) The Registrar shall register the transfer of a Transfer
Restricted Security by a Holder if (x) the requested transfer is (A)
at least two years after the later of (1) the Issue Date with
respect to such Transfer Restricted Security and (2) the date such
Transfer Restricted Security was acquired from an affiliate of the
Company and (B) at least three months after the last date such
Holder was an affiliate of the Company or (y) such transfer is being
made by a proposed transferor who has provided the Registrar with a
letter substantially in the form set forth in Exhibit F hereto.
(ii) If the proposed transferee is an Agent Member and the
Transfer Restricted Security to be transferred consists of an
interest in the IAI Global Security or the Regulation S Global
Security, upon receipt by the Registrar of (x) the letter, if any,
required by paragraph (i) above and (y) instructions given in
accordance with the Depositary's and the Registrar's procedures
therefor, the Registrar shall reflect on its books and records the
date and an increase in the principal amount of the QIB Global
Security in an amount equal to the principal amount of the
beneficial interest in the IAI Global Security or
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the Regulation S Global Security to be so transferred, and the
Registrar shall reflect on its books and records the date and an
appropriate decrease in the principal amount of such IAI Global
Security or Regulation S Global Security.
(c) Transfers Pursuant to Regulation S. The following provisions
shall apply with respect to registration of any proposed transfer of a
Transfer Restricted Security pursuant to Regulation S:
(i) The Registrar shall register any proposed transfer of a
Transfer Restricted Security by a Holder if (x) the requested
transfer is at least two years after the Issue Date with respect to
such Transfer Restricted Security and at least three months after
the last date such Holder was an affiliate of the Company or (y)
upon receipt of a letter substantially in the form set forth in
Exhibit G hereto from the proposed transferor.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in a U.S. Global Security, upon receipt by the
Registrar of (x) the letter, if any, required by paragraph (i) above
and (y) instructions in accordance with the Depositary's and the
Registrar's procedures therefor, the Registrar shall reflect on its
books and records the date and an increase in the principal amount
of the Regulation S Global Security in an amount equal to the
principal amount of the beneficial interest in such U.S. Global
Security to be transferred, and the Registrar shall reflect on its
books and records the date and an appropriate decrease in the
principal amount of the applicable U.S. Global Security.
(d) Restricted Securities Legend. Upon the transfer, exchange or
replacement of Securities not bearing the Restricted Securities Legend,
the Registrar shall deliver Securities that do not bear the Restricted
Securities Legend. Upon the transfer, exchange or replacement of
Securities bearing the Restricted Securities Legend, the Registrar shall
deliver only Securities that bear the Restricted Securities Legend unless
either (i) the circumstances contemplated by paragraph (a)(i)(x),
(b)(i)(x) or (c)(i)(x) of this Section exist, (ii) in the case of any
Initial Securities purchased in reliance upon
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Regulation S, (A) such transfer, exchange or replacement occurs at least
40 days after the Issue Date with respect to such Securities and (B) the
transferor has delivered a letter substantially in the form set forth in
Exhibit G hereto or (iii) there is delivered to the Registrar an Opinion
of Counsel reasonably satisfactory to the Company and the Trustee to the
effect that neither such legend nor the related restrictions on transfer
are required in order to maintain compliance with the provisions of the
Securities Act.
(e) General. By its acceptance of any Security bearing the
Restricted Securities Legend, each Holder of such a Security acknowledges
the restrictions on transfer of such Security set forth in this Indenture
and in the Restricted Securities Legend and agrees that it shall transfer
such Security only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to this Section 2.14. The Company shall
have the right to inspect and make copies of all such letters, notices or other
written communications at any reasonable time upon the giving of reasonable
written notice to the Registrar.
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee. If the Company elects to redeem
Securities pursuant to Section 3.07, it shall notify the Trustee in writing of
the redemption date, the principal amount of Securities to be redeemed and the
paragraph of the Securities pursuant to which the redemption will occur.
The Company shall give each notice to the Trustee provided for in
this Section at least 45 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein. If fewer than all the
Securities are to be redeemed, the record date relating to such redemption shall
be selected by the Company and given to the Trustee, which record date shall be
not fewer than 15 days after the date of notice to the Trustee. Any such notice
may be canceled
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at any time prior to notice of such redemption being mailed to any Holder and
shall thereby be void and of no effect.
SECTION 3.02. Selection of Securities To Be Redeemed. If fewer than
all of the Securities are to be redeemed at any time, the Trustee shall select
the Securities to be redeemed pro rata, by lot or by a method that complies with
applicable legal and securities exchange requirements, if any, and that the
Trustee considers fair and appropriate and in accordance with methods generally
used at the time of selection by fiduciaries in similar circumstances. The
Trustee shall make the selection from outstanding Securities not previously
called for redemption. The Trustee may select for redemption portions of the
principal of Securities that have denominations larger than $1,000. Securities
and portions of them the Trustee selects shall be in amounts of $1,000 or a
whole multiple of $1,000. Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called for
redemption. The Trustee shall notify the Company promptly of the Securities or
portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days but not more
than 60 days before a date for redemption of Securities, the Company shall mail
a notice of redemption by first-class mail to each Holder of Securities to be
redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) the name and address of the Paying Agent;
(d) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(e) if fewer than all the outstanding Securities are to be redeemed,
the certificate numbers and principal amounts of the particular Securities
to be redeemed;
(f) that, unless the Company defaults in making such redemption
payment or the Paying Agent is prohibited from making such payment
pursuant to the terms of this Indenture, interest on Securities (or a
portion
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thereof) called for redemption ceases to accrue on and after the
redemption date;
(g) the CUSIP number, if any, printed on the Securities being
redeemed; and
(h) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the
Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest, if any, to the redemption
date; provided, however, that if the redemption date is after a regular record
date and on or prior to the interest payment date, the accrued interest shall be
payable to the Securityholder of the redeemed Securities registered on the
relevant record date. Failure to give notice or any defect in the notice to any
Holder shall not affect the validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. Prior to 10:00 a.m. on
the redemption date, the Company shall deposit with the Paying Agent (or, if the
Company or a Subsidiary is the Paying Agent, shall segregate and hold in trust)
money sufficient to pay the redemption price of and accrued interest, if any, on
all Securities to be redeemed on that date other than Securities or portions of
Securities called for redemption that have been delivered by the Company to the
Trustee for cancelation.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate for the Holder (at the Company's expense) a new Security
equal in principal amount to the unredeemed portion of the Security surrendered.
SECTION 3.07. Optional Redemption. (a) Except as set forth in
Section 3.07(b), the Securities may not be redeemed prior to December 15, 2002.
Thereafter, the Securities will be subject to redemption at any time at the
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option of the Company, in whole or in part, at the following redemption prices
(expressed as percentages of principal amount), plus accrued and unpaid
interest, if any, to the applicable redemption date (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date) if redeemed during the 12-month period beginning
on or after December 15 of the years set forth below:
Redemption
Period Price
------ -----
2002.............................................................. 105.063%
2003.............................................................. 103.375%
2004.............................................................. 101.688%
2005 and thereafter............................................... 100.000%
(b) In addition, at any time and from time to time prior to December
15, 2000, the Company may redeem in the aggregate up to 35% of the original
aggregate principal amount of Securities at a redemption price of 110.125% of
the principal amount thereof, plus the accrued and unpaid interest, if any, to
the redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date), with
the net cash proceeds of one or more Public Equity Offerings following which
there is a Public Market; provided, however, that at least 65% of the original
aggregate principal amount of Initial Securities remains outstanding immediately
after the occurrence of such redemption.
ARTICLE IV
Covenants
SECTION 4.01. Payment of Securities. The Company shall promptly pay
the principal of and interest on the Securities on the dates and in the manner
provided in the Securities and in this Indenture. Principal and interest shall
be considered paid on the date due if on such date the Trustee or the Paying
Agent holds in accordance with this Indenture money sufficient to pay all
principal and interest then due and the Trustee or the Paying Agent, as the case
may be, is not prohibited from paying such money to the Securityholders on that
date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the rate
specified therefor in the Securities, and it
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shall pay interest on overdue installments of interest at the same rate to the
extent lawful.
SECTION 4.02. SEC Reports. Prior to the effectiveness of the
Exchange Offer Registration Statement or if the Company is otherwise not
obligated to make the filings required by the following sentence, the Company
shall provide within a reasonable time (not to exceed 45 days following the end
of the first three quarters of any fiscal year and 90 days following the end of
such fiscal year) to the Trustee, the Securityholders and prospective
Securityholders (upon request) quarterly and annual financial statements
prepared in accordance with GAAP, together with management's discussion and
analysis of financial condition and results of operations and, in the case of
annual financial statements, a description of any changes in, or disagreements
with, accountants on accounting and financial disclosure, a brief description of
the Company's business, a discussion of any material legal proceedings in which
the Company is involved (other than routine legal proceedings incidental to the
conduct of the business) and a discussion of the compensation paid to, and any
material arrangements with, the Company's executive officers. Following the
effectiveness of the Exchange Offer Registration Statement, notwithstanding that
the Company may not be required to be or remain subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file
with the SEC and provide the Trustee and Securityholders and prospective
Securityholders (upon request) within 15 days after it files them with the SEC,
copies of its annual report and the information, documents and other reports
that are specified in Sections 13 and 15(d) of the Exchange Act, provided that
the requirements of this sentence relating to filings with the SEC shall not be
applicable to the extent that the SEC refuses to accept any such filing. In
addition, following a Public Equity Offering, the Company shall furnish to the
Trustee and the Securityholders, promptly upon their becoming available, copies
of the annual report to shareholders and any other information provided by the
Company to its public shareholders generally. The Company also shall comply with
the other provisions of Section 314(a) of the TIA.
SECTION 4.03. Limitation on Indebtedness. (a) The Company shall not,
and shall not permit any Restricted Subsidiary to, Incur any Indebtedness;
provided, however, that the Company and any of its Restricted Subsidiaries may
Incur Indebtedness if on the date thereof the Consolidated Coverage Ratio would
be greater than
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2.00:1.00 if such Indebtedness is Incurred on or prior to December 31, 1999 and
2.25:1.00 if such Indebtedness is Incurred thereafter.
(b) Notwithstanding Section 4.03(a), the Company and its Restricted
Subsidiaries may Incur the following Indebtedness:
(i) Bank Indebtedness or Indebtedness Incurred pursuant to any other
revolving credit, term loan or working capital financings in an aggregate
principal amount at any time outstanding not in excess of the greater of
$25.0 million and the Borrowing Base in effect from time to time (in each
case less the aggregate amount of all repayments of principal actually
made thereunder since the Closing Date with Net Available Cash from Asset
Dispositions pursuant to Section 4.06(a)(iii)(A));
(ii) Indebtedness of the Company owing to and held by any Wholly
Owned Subsidiary or Indebtedness of a Restricted Subsidiary owing to and
held by the Company or any Wholly Owned Subsidiary; provided, however,
that any subsequent issuance or transfer of any Capital Stock or any other
event that results in any such Wholly Owned Subsidiary ceasing to be a
Wholly Owned Subsidiary or any subsequent transfer of any such
Indebtedness (except to the Company or a Wholly Owned Subsidiary) shall be
deemed, in each case, to constitute the Incurrence of such Indebtedness by
the issuer thereof;
(iii) Indebtedness of the Company or its Restricted Subsidiaries (A)
represented by the Securities (other than Additional Securities) or the
Subsidiary Guarantees (other than Guarantees of Additional Securities),
(B) outstanding on the Closing Date (other than the Indebtedness described
in clauses (i) and (ii) above) or (C) consisting of Refinancing
Indebtedness Incurred in respect of any Indebtedness described in this
clause (iii), clauses (v), (vi) (vii), and (viii) of this paragraph (b) or
in Section 4.03(a);
(iv) (A) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Restricted Subsidiary
was acquired by the Company (other than Indebtedness Incurred as
consideration in, in contemplation of, or to provide all or any portion of
the funds or credit support utilized to consummate, the transaction or
series of related transactions pursuant to which such Restricted
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Subsidiary became a Subsidiary or was otherwise acquired by the Company);
provided, however, that at the time such Restricted Subsidiary is acquired
by the Company, the Company would have been able to Incur $1.00 of
additional Indebtedness pursuant to Section 4.03(a) after giving effect to
the Incurrence of such Indebtedness pursuant to this clause (iv) and (B)
Refinancing Indebtedness Incurred by a Restricted Subsidiary or the
Company in respect of Indebtedness Incurred by such Restricted Subsidiary
pursuant to this clause (iv);
(v) Indebtedness (A) in respect of performance bonds, bankers'
acceptances, letters of credit, surety or appeal bonds or guarantees
resulting from the endorsement of negotiable instruments provided by the
Company and its Restricted Subsidiaries in the ordinary course of their
business and which do not secure other Indebtedness, and (B) under
Currency Agreements and Interest Rate Agreements, in each case entered
into for bona fide hedging purposes of the Company in the ordinary course
of business; provided, however, that, in the case of Currency Agreements
and Interest Rate Agreements, such Currency Agreements and Interest Rate
Agreements do not increase the Indebtedness of the Company outstanding at
any time other than as a result of fluctuations in foreign currency
exchange rates or interest rates or by reason of fees, indemnities and
compensation payable thereunder;
(vi) Indebtedness of the Company or any Restricted Subsidiary
consisting of obligations in respect of purchase price adjustments in
connection with the acquisition or disposition of assets by the Company or
any Restricted Subsidiary permitted under the Indenture, provided that the
principal amount of all Indebtedness incurred pursuant to this clause
(vi), when taken together with all other Indebtedness Incurred pursuant to
this clause (vi) and then outstanding, shall not exceed $3.0 million;
(vii) Indebtedness of the Company or a Restricted Subsidiary owed to
(including in respect of letters of credit for the benefit of) any Person
in connection with workers' compensation insurance provided by such Person
to the Company or such Restricted Subsidiary, pursuant to reimbursement or
indemnification obligations to such Person, in each case Incurred in the
ordinary course of business;
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(viii) Purchase Money Indebtedness, Attributable Debt and
Capitalized Lease Obligations in an aggregate principal amount not in
excess of $2.0 million at any time outstanding; or
(ix) Indebtedness (other than Indebtedness permitted to be Incurred
pursuant to Section 4.03(a) or any other clause of this Section 4.03(b))
in an aggregate principal amount on the date of Incurrence that, when
added to all other Indebtedness Incurred pursuant to this clause (ix) and
then outstanding, shall not exceed $15.0 million.
(c) Notwithstanding the foregoing, the Company shall not Incur any
Indebtedness pursuant to paragraph (b) above if the proceeds thereof are used,
directly or indirectly, to repay, prepay, redeem, defease, retire, refund or
refinance any Subordinated Obligations unless such Indebtedness shall be
subordinated to the Securities to at least the same extent as such Subordinated
Obligations. The Company shall not Incur any Indebtedness pursuant to Section
4.03(a) or 4.03(b) if such Indebtedness is subordinate or junior in ranking in
any respect to any Senior Indebtedness unless such Indebtedness is Senior
Subordinated Indebtedness or is expressly subordinated in right of payment to
Senior Subordinated Indebtedness. The Company shall not Incur any Indebtedness
that constitutes Deferred Obligations after the Closing Date unless such
Indebtedness is expressly subordinated in right of payment to the Securities. In
addition, the Company shall not Incur any Secured Indebtedness that is not
Senior Indebtedness unless contemporaneously therewith effective provision is
made to secure the Securities equally and ratably with (or on a senior basis to,
in the case of Indebtedness Subordinated in right of payment to the Securities)
such Secured Indebtedness for so long as such Secured Indebtedness is secured by
a Lien. A Guarantor Subsidiary shall not Incur any Indebtedness if such
Indebtedness is by its terms expressly subordinate or junior in ranking in any
respect to any Senior Indebtedness of such Guarantor Subsidiary unless such
Indebtedness is Senior Subordinated Indebtedness of such Guarantor Subsidiary or
is expressly subordinated in right of payment to Senior Subordinated
Indebtedness of such Guarantor Subsidiary. A Guarantor Subsidiary shall not
Incur any Indebtedness that constitutes Deferred Obligations after the Closing
Date unless such Indebtedness is expressly subordinated in right of payment to
the Subsidiary Guarantees. In addition, a Guarantor Subsidiary may not Incur any
Secured Indebtedness that is not Senior Indebtedness of such Guarantor
Subsidiary unless contemporaneously therewith effective provision is made to
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secure the Subsidiary Guarantee of such Guarantor Subsidiary equally and ratably
with (or on a senior basis to, in the case of Indebtedness subordinated in right
of payment to such Subsidiary Guarantee) such Secured Indebtedness for as long
as such Secured Indebtedness is secured by a Lien.
(d) Notwithstanding any other provision of this Section 4.03, the
maximum amount of Indebtedness that the Company or any Restricted Subsidiary may
Incur pursuant to this Section shall not be deemed to be exceeded solely as a
result of fluctuations in the exchange rates of currencies. For purposes of
determining the outstanding principal amount of any particular Indebtedness
Incurred pursuant to this Section 4.03, (i) Indebtedness Incurred pursuant to
the Credit Agreement prior to or on the date of this Indenture shall be treated
as Incurred pursuant to Section 4.03(b)(i), (ii) Indebtedness permitted by this
Section 4.03 need not be permitted solely by reference to one provision
permitting such Indebtedness but may be permitted in part by one such provision
and in part by one or more other provisions of this Section permitting such
Indebtedness and (iii) in the event that Indebtedness or any portion thereof
meets the criteria of more than one of the types of Indebtedness described in
this Section 4.03, the Company, in its sole discretion, shall classify such
Indebtedness and only be required to include the amount of such Indebtedness in
one of such clauses.
SECTION 4.04. Limitation on Restricted Payments. (a) The Company
shall not, and shall not permit any Restricted Subsidiary, directly or
indirectly, to (i) declare or pay any dividend or make any distribution on or in
respect of its Capital Stock (including any payment in connection with any
merger or consolidation involving the Company) except dividends or distributions
payable solely in its Capital Stock (other than Disqualified Stock) and except
dividends or distributions payable to the Company or another Restricted
Subsidiary (and, if such Restricted Subsidiary has shareholders other than the
Company or other Restricted Subsidiaries, to its other shareholders on a pro
rata basis), (ii) purchase, redeem, retire or otherwise acquire for value any
Capital Stock of the Company or any Restricted Subsidiary held by Persons other
than the Company or another Restricted Subsidiary, (iii) purchase, repurchase,
redeem, defease or otherwise acquire or retire for value, prior to scheduled
maturity, scheduled repayment or scheduled sinking fund payment any Subordinated
Obligations (other than (A) the purchase, repurchase or other acquisition of
Subordinated Obligations purchased in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case due within one
year of the date of acquisition and (B) reductions of Subordinated
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Obligations consisting of purchase price adjustments in connection with the
acquisition or disposition of assets by the Company or a Restricted Subsidiary
permitted by the Indenture); or (iv) make any Investment (other than a Permitted
Investment) in any Person (any such dividend, distribution, purchase,
redemption, repurchase, defeasance, other acquisition, retirement or Investment
being herein referred to as a "Restricted Payment") if at the time the Company
or such Restricted Subsidiary makes such Restricted Payment:
(A) a Default shall have occurred and be continuing (or would result
therefrom);
(B) the Company could not Incur at least $1.00 of additional
Indebtedness under Section 4.03(a); or
(C) the aggregate amount of such Restricted Payment and all other
Restricted Payments (the amount so expended, if other than in cash, to be
determined in good faith by the Board of Directors, whose determination
shall be conclusive and evidenced by a resolution of the Board of
Directors) declared or made subsequent to the Closing Date would exceed
the sum of:
(1) 50% of the Consolidated Net Income accrued during the
period (treated as one accounting period) from the Closing Date to
the end of the most recent fiscal quarter ending prior to the date
of such Restricted Payment for which financial statements are then
available (or, in case such Consolidated Net Income shall be a
deficit, minus 100% of such deficit);
(2) the aggregate Net Cash Proceeds received by the Company
from the issue or sale of its Capital Stock (other than Disqualified
Stock) subsequent to the Closing Date (other than an issuance or
sale to a Subsidiary of the Company or an employee stock ownership
plan or other trust established by the Company or any of its
Subsidiaries);
(3) the aggregate Net Cash Proceeds received by the Company
from the issue or sale of its Capital Stock (other than Disqualified
Stock) to an employee stock ownership plan or other trust subsequent
to the Closing Date; provided, however, that if such plan or trust
Incurs any Indebtedness to, or Guaranteed by, the Company or any
Restricted Subsidiary to finance the acquisition
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of such Capital Stock, such aggregate amount shall be limited to
such Net Cash Proceeds less such Indebtedness Incurred to or
Guaranteed by the Company or any Restricted Subsidiary and any
increase in the Consolidated Net Worth of the Company resulting from
principal repayments made by such plan or trust with respect to
Indebtedness Incurred by it to finance the purchase of such Capital
Stock;
(4) the amount by which Indebtedness of the Company or its
Restricted Subsidiaries is reduced on the Company's balance sheet
upon the conversion or exchange (other than by a Subsidiary) of any
Indebtedness of the Company or its Restricted Subsidiaries issued
subsequent to the Closing Date and convertible or exchangeable for
Capital Stock (other than Disqualified Stock) of the Company (less
the amount of any cash or other property distributed by the Company
or any Restricted Subsidiary upon such conversion or exchange); and
(5) the amount equal to the net reduction in Investments in
Unrestricted Subsidiaries resulting from (aa) payments of dividends,
repayments of the principal of loans or advances or other transfers
of assets to the Company or any Restricted Subsidiary from
Unrestricted Subsidiaries or (bb) the redesignation of Unrestricted
Subsidiaries as Restricted Subsidiaries (valued in each case as
provided in the definition of "Investment") not to exceed, in the
case of any Unrestricted Subsidiary, the amount of Investments
previously made by the Company or any Restricted Subsidiary in such
Unrestricted Subsidiary, which amount was included in the
calculation of the amount of Restricted Payments or (cc) the sale,
liquidation or repayment of any such Investment in Unrestricted
Subsidiaries, in an amount not to exceed the lesser of (x) the net
cash proceeds received by the Company or any Restricted Subsidiary
in connection with such sale, liquidation or repayment and (y) the
initial amount of such Investment, which amount was included in the
calculation of the amount of Restricted Payments.
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(b) The provisions of Section 4.04(a) shall not prohibit:
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(i) any purchase or redemption of Capital Stock of the Company or
Subordinated Obligations of the Company made by exchange for, or out of
the proceeds of the substantially concurrent sale of, Capital Stock of the
Company (other than Disqualified Stock and other than Capital Stock issued
or sold to a Subsidiary or an employee stock ownership plan or other trust
established by the Company or any of its Subsidiaries); provided, however,
that (A) such purchase or redemption shall be excluded in the calculation
of the amount of Restricted Payments and (B) the Net Cash Proceeds from
such sale applied in the manner set forth in this clause (i) shall be
excluded from clause (C)(2) or (C)(3) of Section 4.04(a);
(ii) any purchase or redemption of Subordinated Obligations of the
Company made by exchange for, or out of the proceeds of the substantially
concurrent sale of, Indebtedness of the Company which is permitted to be
Incurred pursuant to Section 4.03(b); provided, however, that such
purchase or redemption shall be excluded in the calculation of the amount
of Restricted Payments;
(iii) any purchase or redemption of Subordinated Obligations from
Net Available Cash to the extent permitted by Section 4.06; provided,
however, that such purchase or redemption shall be excluded in the
calculation of the amount of Restricted Payments;
(iv) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividend would have complied
with Section 4.04(a); provided, however, that such dividend shall be
included in the calculation of the amount of Restricted Payments;
(v) the repurchase of shares of, or options to purchase shares of,
common stock of the Company or any of its Subsidiaries from employees,
former employees, directors or former directors of the Company or any of
its Subsidiaries (or permitted transferees of such employees, former
employees, directors or former directors), pursuant to the terms of the
agreements (including employment agreements) or plans (or amendments
thereto) approved by the Board of Directors under which such individuals
purchase or sell, or are granted the option to purchase or sell, shares of
such common stock; provided, however, that the aggregate amount of such
repurchases (other than repurchases made with respect to a deceased Person
that are funded using
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the proceeds of a life insurance policy relating to such Person of which
the Company or a Restricted Subsidiary is the beneficiary) shall not
exceed $5.0 million in any calendar year; provided further, however, that
such repurchases shall be included in the calculation of the amount of
Restricted Payments;
(vi) any purchase for total consideration not in excess of $10.0
million of any common stock of the Company then held by members of senior
management of the Company who are not members of the Board of Directors on
the Closing Date, so long as the condition specified in Section 4.04(a)(A)
is satisfied; provided, however, that such purchase shall be included in
the calculation of the amount of Restricted Payments;
(vii) dividends, distributions or other payments made on or with
respect to Capital Stock to the extent payable in shares of Capital Stock
of such Person (other than Disqualified Stock); or
(viii) other Restricted Payments in an aggregate amount not to
exceed $3.0 million.
SECTION 4.05. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (a) pay dividends or make any other distributions on
its Capital Stock or pay any Indebtedness or other obligations owed to the
Company, (b) make any loans or advances to the Company or (c) transfer any of
its property or assets to the Company, except:
(i) any encumbrance or restriction pursuant to an agreement in
effect at or entered into on the Closing Date;
(ii) any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement relating to any Indebtedness Incurred
by such Restricted Subsidiary prior to the date on which such Restricted
Subsidiary was acquired by the Company (other than Indebtedness Incurred
as consideration in, in contemplation of, or to provide all or any portion
of the funds or credit support utilized to consummate, the transaction or
series of related transactions pursuant to which such Restricted
Subsidiary became a
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Restricted Subsidiary or was otherwise acquired by the Company) and
outstanding on such date;
(iii) any encumbrance or restriction pursuant to an agreement
constituting Refinancing Indebtedness or Indebtedness Incurred pursuant to
an agreement referred to in clause (i) or (ii) of this Section 4.05 or
this clause (iii) or contained in any amendment to an agreement referred
to in clause (i) or (ii) of this Section 4.05 or this clause (iii);
provided, however, that the encumbrances and restrictions contained in any
such refinancing agreement or amendment, taken as a whole, are no less
favorable to the Securityholders than the encumbrances and restrictions
contained in such agreements as determined in good faith by the Board of
Directors;
(iv) in the case of clause (c), any encumbrance or restriction (A)
that restricts in a customary manner the subletting, assignment or
transfer of any property or asset that is subject to a lease, license or
similar contract, (B) by virtue of any transfer of, agreement to transfer,
option or right with respect to, or Lien on, any property or assets of the
Company or any Restricted Subsidiary not otherwise prohibited by this
Indenture or (C) contained in security agreements securing Indebtedness of
a Restricted Subsidiary to the extent such encumbrance or restrictions
restrict the transfer of the property subject to such security agreements
or mortgages; and
(v) with respect to a Restricted Subsidiary, any restriction imposed
pursuant to an agreement entered into for the sale or disposition of all
or substantially all the Capital Stock or assets of such Restricted
Subsidiary pending the closing of such sale or disposition.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock.
(a) The Company shall not, and shall not permit any Restricted Subsidiary to,
make any Asset Disposition unless (i) the Company or such Restricted Subsidiary
receives consideration (including by way of relief from, or by any other Person
assuming sole responsibility for, any liabilities, contingent or otherwise) at
the time of such Asset Disposition at least equal to the fair market value of
the shares and assets subject to such Asset Disposition, (ii) at least 85% (or
100% in the case of lease payments) of the consideration thereof received by the
Company or such Restricted Subsidiary is in the form of cash, and (iii) an
amount equal
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to 100% of the Net Available Cash from such Asset Disposition is applied by the
Company (or such Restricted Subsidiary, as the case may be) (A) first, to the
extent the Company or such Restricted Subsidiary elects (or is required by the
terms of any Senior Indebtedness or Indebtedness (other than Preferred Stock) of
a Wholly Owned Subsidiary) to prepay, repay or purchase Senior Indebtedness or
such Indebtedness (in each case other than Indebtedness owed to the Company or
an Affiliate of the Company) within 60 days after the later of the date of such
Asset Disposition or the receipt of such Net Available Cash; (B) second, to the
extent of the balance of Net Available Cash after application in accordance with
clause (A), to the extent the Company or such Restricted Subsidiary elects, to
reinvest in Additional Assets (including by means of an Investment in Additional
Assets by a Restricted Subsidiary with Net Available Cash received by the
Company or another Restricted Subsidiary) within 270 days from the later of such
Asset Disposition or the receipt of such Net Available Cash; (C) third, to the
extent of the balance of such Net Available Cash after application in accordance
with clauses (A) and (B), to make an Offer (as defined below) to purchase
Securities pursuant to and subject to the conditions of Section 4.06(b),
provided that if the Company elects (or is required by the terms of any Senior
Subordinated Indebtedness), such Offer may be made ratably to purchase the
Securities and other Senior Subordinated Indebtedness, and (D) fourth, to the
extent of the balance of such Net Available Cash after application in accordance
with clauses (A), (B) and (C), to prepay, repay or purchase Indebtedness of the
Company (other than Indebtedness owed to an Affiliate of the Company and other
than Disqualified Stock of the Company) or Indebtedness of any Restricted
Subsidiary (other than Indebtedness owed to the Company or an Affiliate of the
Company), in each case described in this clause (D) within one year from the
receipt of such Net Available Cash or, if the Company has made an Offer pursuant
to clause (C) of this Section 4.06(a), six months from the date such Offer is
consummated; provided, however, that in connection with any prepayment,
repayment or purchase of Indebtedness pursuant to clause (A), (C) or (D) above,
the Company or such Restricted Subsidiary shall retire such Indebtedness and
shall cause the related loan commitment (if any) to be permanently reduced in an
amount equal to the principal amount so prepaid, repaid or purchased.
Notwithstanding the foregoing provisions of this Section 4.06, the Company and
the Restricted Subsidiaries shall not be required to apply any Net Available
Cash in accordance with this Section 4.06 except to the extent that the
aggregate Net Available Cash from all Asset Dispositions
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in any year that is not applied in accordance with this Section 4.06 exceeds
$5.0 million.
For the purposes of this Section 4.06, the following are deemed to
be cash: (x) the assumption of Indebtedness of the Company (other than
Disqualified Stock of the Company) or any Restricted Subsidiary and the release
of the Company or such Restricted Subsidiary from all liability on such
Indebtedness in connection with such Asset Disposition and (y) securities
received by the Company or any Restricted Subsidiary from the transferee that
are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase
of Securities pursuant to Section 4.06(a)(iii)(C), the Company shall be required
to purchase Securities tendered pursuant to an offer by the Company for the
Securities (the "Offer") at a purchase price of 100% of their principal amount
plus accrued and unpaid interest, if any, to the date of purchase in accordance
with the procedures (including prorationing in the event of oversubscription)
set forth in Section 4.06(c). If the aggregate purchase price of Securities
tendered pursuant to the Offer is less than the Net Available Cash allotted to
the purchase of the Securities, the Company shall apply the remaining Net
Available Cash in accordance with Section 4.06(a)(iii)(D). The Company shall not
be required to make an Offer for Securities pursuant to this Section if the Net
Available Cash available therefor (after application of the proceeds as provided
in clauses (A) and (B) of Section 4.06(a)(iii)) is less than $10.0 million for
any particular Asset Disposition (which lesser amount shall be carried forward
for purposes of determining whether an Offer is required with respect to the Net
Available Cash from any subsequent Asset Disposition).
(c) (i) Promptly, and in any event within 10 days after the Company
becomes obligated to make an Offer, the Company shall be obligated to deliver to
the Trustee and send, by first-class mail to each Holder, a written notice
stating that the Holder may elect to have his Securities purchased by the
Company either in whole or in part (subject to prorationing as hereinafter
described in the event the Offer is oversubscribed) in integral multiples of
$1,000 of principal amount, at the applicable purchase price. The notice shall
specify a purchase date not less than 30 days nor more than 60 days after the
date of such notice (the "Purchase Date") and shall contain such information
concerning the business of the Company which the Company in good faith believes
will enable such Holders to make an
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informed decision (which at a minimum shall (A) include, if material,
appropriate pro forma financial information and (B) include or incorporate by
reference (and provide upon request) the information most recently provided in
accordance with Section 4.02) and all instructions and materials necessary to
tender Securities pursuant to the Offer, together with the address referred to
in clause (iii).
(ii) Not later than the date upon which written notice of an Offer
is delivered to the Trustee as provided above, the Company shall deliver to the
Trustee an Officers' Certificate as to (A) the amount of the Offer (the "Offer
Amount"), (B) the allocation of the Net Available Cash from the Asset
Dispositions pursuant to which such Offer is being made and (C) the compliance
of such allocation with the provisions of Section 4.06(a). On such date, the
Company shall also irrevocably deposit with the Trustee or with a paying agent
(or, if the Company is acting as its own paying agent, segregate and hold in
trust) an amount equal to the Offer Amount to be invested in Temporary Cash
Investments and to be held for payment in accordance with the provisions of this
Section. Upon the expiration of the period for which the Offer remains open (the
"Offer Period"), the Company shall deliver to the Trustee for cancelation the
Securities or portions thereof that have been properly tendered to and are to be
accepted by the Company. The Trustee (or the Paying Agent, if not the Trustee)
shall, on the date of purchase, mail or deliver payment to each tendering Holder
in the amount of the purchase price. In the event that the aggregate purchase
price of the Securities delivered by the Company to the Trustee is less than the
Offer Amount applicable to the Securities, the Trustee shall deliver the excess
to the Company immediately after the expiration of the Offer Period for
application in accordance with this Section.
(iii) Holders electing to have a Security purchased shall be
required to surrender the Security, with an appropriate form duly completed, to
the Company at the address specified in the notice at least three Business Days
prior to the date of purchase. Holders shall be entitled to withdraw their
election if the Trustee or the Company receives, not later than one Business Day
prior to the Purchase Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Security which
was delivered by the Holder for purchase and a statement that such Holder is
withdrawing his election to have such Security purchased. If at the expiration
of the Offer Period the aggregate principal amount of Securities and any other
Senior Subordinated
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Indebtedness included in the Offer surrendered by holders thereof exceeds the
Offer Amount, the Company shall select the Securities and other Senior
Subordinated Indebtedness to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Company so that only Securities
and other Senior Subordinated Indebtedness in denominations of $1,000, or
integral multiples thereof, shall be purchased). Holders whose Securities are
purchased only in part shall be issued new Securities equal in principal amount
to the unpurchased portion of the Securities surrendered.
(iv) At the time the Company delivers Securities to the Trustee
which are to be accepted for purchase, the Company shall also deliver an
Officers' Certificate stating that such Securities are to be accepted by the
Company pursuant to and in accordance with the terms of this Section. A
Security shall be deemed to have been accepted for purchase at the time the
Trustee, directly or through an agent, mails or delivers payment therefor to the
surrendering Holder.
(v) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section 4.06 by virtue thereof.
SECTION 4.07. Limitation on Transactions with Affiliates. (a) The
Company shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, enter into or conduct any transaction (including, the purchase,
sale, lease or exchange of any property or the rendering of any service) with
any Affiliate of the Company (an "Affiliate Transaction") on terms (i) that are
less favorable to the Company or such Restricted Subsidiary, as the case may be,
than those that could be obtained at the time of such transaction in
arm's-length dealings with a Person who is not such an Affiliate and (ii) that,
in the event such Affiliate Transaction involves an aggregate amount in excess
of $1.0 million, are not in writing and have not been approved by a majority of
the members of the Board of Directors having no personal stake in such Affiliate
Transaction and who are not employed or otherwise associated with such
Affiliates. In addition, if such Affiliate Transaction involves an amount in
excess of
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$5.0 million, a fairness or reasonableness opinion must be obtained from a
nationally recognized appraisal, accounting or investment banking firm.
(b) The provisions of Section 4.07(a) shall not prohibit (i) any
payment or transaction permitted pursuant to Section 4.04, (ii) any issuance of
securities, or other payments, awards or grants in cash, securities or otherwise
pursuant to, or the funding of, employment arrangements, stock options and stock
ownership plans approved by the Board of Directors or the board of directors of
the relevant Restricted Subsidiary, (iii) loans or advances to employees in the
ordinary course of business in accordance with past practices of the Company,
but in any event not to exceed $500,000 in the aggregate outstanding at any one
time, (iv) the payment of reasonable fees to directors of the Company and its
Subsidiaries who are not employees of the Company or its Subsidiaries, (v) any
transaction between the Company and a Wholly Owned Subsidiary or between Wholly
Owned Subsidiaries, (vi) indemnification or insurance provided to officers or
directors of the Company and the Restricted Subsidiaries approved in good faith
by the Board of Directors or the board of directors of the relevant Restricted
Subsidiary, (vii) payments under, or amendments or extensions of, the Gateway
Lease; provided that any such amendments or extensions are on commercially
reasonable terms as certified by a recognized commercial real estate firm that
is not an Affiliate of the Company, (viii) leases of real property from any
Permitted Holder, provided that any such leases are on commercially reasonable
terms as certified by a recognized commercial real estate firm that is not an
Affiliate of the Company, (ix) any fee paid to Permitted Holders (other than any
Management Stockholder) in consideration of the provision of management services
in an aggregate amount not to exceed $500,000 per annum, plus out-of-pocket
expenses relating to the provision of such management services, and (x) sales of
Capital Stock of the Company to Affiliates.
SECTION 4.08. Change of Control. (a) Upon a Change of Control, each
Holder shall have the right to require that the Company repurchase all or any
part of such Holder's Securities at a purchase price in cash equal to 101% of
the principal amount thereof plus accrued and unpaid interest, if any, to the
date of purchase (subject to the right of Holders on the relevant record date to
receive interest due on the relevant interest payment date), in accordance with
the terms contemplated in Section 4.08(b); provided, however, that
notwithstanding the occurrence of a Change in Control, the Company shall not be
obligated to purchase the Securities pursuant to this Section 4.08 in the
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event that it has exercised its right to redeem all the Securities under Section
3.07 or in the event that a third party makes or has made such an offer in
compliance with Section 3.07 and such third party purchases all Securities
validly tendered and not withdrawn pursuant to such offer. In the event that at
the time of such Change of Control the terms of the Bank Indebtedness restrict
or prohibit the repurchase of Securities pursuant to this Section 4.08, then
prior to the mailing of the notice to Holders provided for in Section 4.08(b)
below but in any event within 30 days following any Change of Control, the
Company shall (i) repay in full all Bank Indebtedness or offer to repay in full
all Bank Indebtedness and repay the Bank Indebtedness of each lender who has
accepted such offer or (ii) obtain the requisite consent under the agreements
governing the Bank Indebtedness to permit the repurchase of the Securities as
provided for in Section 4.08(b).
(b) Within 30 days following any Change of Control (except as
provided in the proviso to the first sentence of Section 4.08(a)), the Company
shall mail a notice to each Holder with a copy to the Trustee stating:
(i) that a Change of Control has occurred and that such Holder has
the right to require the Company to purchase such Holder's Securities at a
purchase price in cash equal to 101% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the date of repurchase, which
shall be the date the Company deposits the required cash with the Trustee
for such purpose (subject to the right of Holders of record on a record
date to receive interest due on the relevant interest payment date);
(ii) the circumstances and relevant facts and financial information
regarding such Change of Control;
(iii) the repurchase date (which shall be no earlier than 30 days
nor later than 60 days from the date such notice is mailed); and
(iv) the instructions determined by the Company, consistent with
this Section 4.08, that a Holder must follow in order to have its
Securities purchased.
(c) Holders electing to have a Security purchased shall be required
to surrender the Security, with an appropriate form duly completed, to the
Company at the address specified in the notice at least three Business Days
prior to the purchase date. Holders shall be entitled to withdraw their election
if the Trustee or the Company receives not
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later than one Business Day prior to the purchase date a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Security which was delivered for purchase by the Holder
and a statement that such Holder is withdrawing his election to have such
Security purchased.
(d) On the purchase date, all Securities purchased by the Company
under this Section shall be delivered to the Trustee for cancelation, and the
Company shall pay the purchase price plus accrued and unpaid interest, if any,
to the Holders entitled thereto.
(e) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section by virtue thereof.
SECTION 4.09. Compliance Certificate. The Company shall deliver to
the Trustee within 120 days after the end of each fiscal year of the Company an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company they would normally have
knowledge of any Default and whether or not the signers know of any Default that
occurred during such period. If they do, the certificate shall describe the
Default, its status and what action the Company is taking or proposes to take
with respect thereto. The Company also shall comply with Section 314(a)(4) of
the TIA.
SECTION 4.10. Further Instruments and Acts. Upon request of the
Trustee, the Company shall execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 4.11. Future Guarantor Subsidiaries. The Company shall cause
each Restricted Subsidiary which Incurs Indebtedness to execute and deliver to
the Trustee a supplemental indenture pursuant to which such Subsidiary shall
Guarantee payment of the Securities; provided, however, that such Subsidiary
shall not be required to execute and deliver a supplemental indenture pursuant
to this Section in the event that such Subsidiary is a party to the Indenture at
the time of such Incurrence of
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Indebtedness. Each Subsidiary Guarantee shall be limited to an amount not to
exceed the maximum amount that can be Guaranteed by that Subsidiary without
rendering the Subsidiary Guarantee, as it relates to such Subsidiary, voidable
under applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally.
SECTION 4.12. Limitation on Lines of Business. The Company shall
not, and shall not permit any Restricted Subsidiary to, engage in any business,
other than a Related Business.
SECTION 4.13. Limitation on the Sale or Issuance of Capital Stock of
Restricted Subsidiaries. The Company shall not sell any shares of Capital Stock
of a Restricted Subsidiary, and shall not permit any Restricted Subsidiary,
directly or indirectly, to issue or sell any shares of its Capital Stock or the
Capital Stock of another Restricted Subsidiary, except (a) to the Company or a
Wholly Owned Subsidiary, (b) if, immediately after giving effect to such
issuance or sale, such Restricted Subsidiary would no longer constitute a
Restricted Subsidiary or (c) directors' qualifying shares. The proceeds of any
sale of such Capital Stock permitted hereby shall be treated as Net Available
Cash from an Asset Disposition and shall be applied in accordance with Section
4.06.
SECTION 4.14. Limitation on Sale/Leaseback Transactions. The Company
shall not, and shall not permit any Restricted Subsidiary to, enter into any
Sale/Leaseback Transaction with respect to any property unless (a) the Company
or such Subsidiary would be entitled to (i) Incur Indebtedness in an amount
equal to the Attributable Debt with respect to such Sale/Leaseback Transaction
pursuant to Section 4.03 and (ii) create a Lien on such property securing such
Attributable Debt without equally and ratably securing the Securities pursuant
to Section 4.03, (b) the net cash proceeds received by the Company or any
Restricted Subsidiary in connection with such Sale/Leaseback Transaction are at
least equal to the fair value (as determined in good faith by the Board of
Directors) of such property and (c) the transfer of such property is permitted
by, and the Company applies the proceeds of such transaction in compliance with,
Section 4.06.
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ARTICLE V
Successor Company
SECTION 5.01. When Company May Merge or Transfer Assets. The Company
shall not consolidate with or merge with or into, or convey, transfer or lease
all or substantially all its assets to, any Person, unless:
(a) the resulting, surviving or transferee Person (the "Successor
Company") shall be a corporation, limited liability company, limited
partnership or business trust organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia
and the Successor Company (if not the Company) shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, all the obligations of the Company
under the Securities and this Indenture;
(b) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Company or any Restricted Subsidiary as a result of such transaction as
having been Incurred by the Successor Company or such Restricted
Subsidiary at the time of such transaction), no Default shall have
occurred and be continuing;
(c) immediately after giving effect to such transaction, the
Successor Company would be able to Incur an additional $1.00 of
Indebtedness pursuant to Section 4.03(a);
(d) immediately after giving effect to such transaction, the
Successor Company shall have Consolidated Net Worth in an amount which is
not less than the Consolidated Net Worth of the Company immediately prior
to such transaction; and
(e) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture.
The Successor Company shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture, but the
predecessor Company in the case of a conveyance, transfer or lease of
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all or substantially all its assets shall not be released from the obligation to
pay the principal of and interest on the Securities.
Notwithstanding the foregoing clauses (b), (c) and (d), (a) any
Restricted Subsidiary may consolidate with, merge with or into or transfer all
or part of its properties and assets to the Company and (b) the Company may
merge with an Affiliate incorporated solely for the purpose of reincorporating
the Company in another jurisdiction to realize tax or other benefits.
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default. An "Event of Default" occurs if:
(a) the Company defaults in any payment of interest on any Security
when the same becomes due and payable, whether or not such payment shall
be prohibited by Article X, and such default continues for a period of 30
days;
(b) the Company (i) defaults in the payment of the principal of any
Security when the same becomes due and payable at its Stated Maturity,
upon optional redemption, upon required repurchase, upon declaration or
otherwise, whether or not such payment shall be prohibited by Article X or
(ii) fails to redeem or purchase Securities when required pursuant to this
Indenture or the Securities, whether or not such redemption or purchase
shall be prohibited by Article X;
(c) the Company fails to comply with Section 5.01;
(d) the Company fails to comply with Section 4.02, 4.03, 4.04, 4.05,
4.06, 4.07, 4.08, 4.11, 4.12, 4.13 or 4.14 (other than a failure to
purchase Securities when required under Section 4.06 or 4.08) and such
failure continues for 30 days after the notice specified below;
(e) the Company fails to comply with any of its agreements in the
Securities or this Indenture (other than those referred to in (a), (b),
(c) or (d) above) and such failure continues for 60 days after the notice
specified below;
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(f) Indebtedness of the Company or any Restricted Subsidiary is not
paid within any applicable grace period after final maturity or the
acceleration by the holders thereof because of a default and the total
amount of such Indebtedness unpaid or accelerated exceeds $5.0 million or
its foreign currency equivalent at the time;
(g) the Company or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it
in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for
any substantial part of its property;
(iv) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(h) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company or any Significant
Subsidiary in an involuntary case;
(ii) appoints a Custodian of the Company or any
Significant Subsidiary or for any substantial part of its
property; or
(iii) orders the winding up or liquidation of the
Company or any Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order or
decree remains unstayed and in effect for 60 days;
(i) any final and nonappealable judgment or decree for the payment
of money in excess of $5.0 million or its foreign currency equivalent at
the time is entered against the Company or any Restricted Subsidiary and
is not discharged, waived or stayed and either (A) an enforcement
proceeding has been commenced by any creditor upon such judgment or decree
or (B) there is a
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period of 60 days following the entry of such judgment or decree during
which such judgment or decree is not discharged, waived or the execution
thereof stayed; or
(j) any Subsidiary Guarantee shall cease to be in full force and
effect (except as contemplated by the terms thereof) or any Guarantor
Subsidiary or person acting by or on behalf of such Guarantor Subsidiary
shall deny or disaffirm its obligations under this Indenture or any
Subsidiary Guarantee and such Default continues for 10 days.
The foregoing shall constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
A Default under clause (d) or (e) is not an Event of Default until
the Trustee or the Holders of at least 25% in principal amount of the
outstanding Securities notify the Company of the Default and the Company does
not cure such Default within the time specified after receipt of such notice.
Such notice must specify the Default, demand that it be remedied and state that
such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Event of Default and any event which with the giving of notice or the lapse
of time would become an Event of Default under clause (d), (e), (h) or (i), its
status and what action the Company is taking or proposes to take with respect
thereto.
SECTION 6.02. Acceleration. If an Event of Default (other than an
Event of Default specified in Section 6.01(g) or (h) with respect to the
Company) occurs and is continuing, the Trustee by notice to the Company, or the
Holders of at least 25% in principal amount of the outstanding Securities by
notice to the Company, may declare the principal of and accrued but unpaid
interest on all the Securities to be due and payable. Upon such a declaration,
such principal and interest shall be due and payable
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immediately. If an Event of Default specified in Section 6.01(g) or (h) with
respect to the Company occurs, the principal of and interest on all the
Securities shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Securityholders.
The Holders of a majority in principal amount of the Securities by notice to the
Trustee may rescind an acceleration and its consequences if the rescission would
not conflict with any judgment or decree and if all existing Events of Default
have been cured or waived except nonpayment of principal or interest that has
become due solely because of acceleration. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a majority in
principal amount of the Securities by notice to the Trustee may waive an
existing Default and its consequences except (a) a Default in the payment of the
principal of or interest on a Security or (b) a Default in respect of a
provision that under Section 9.02 cannot be amended without the consent of each
Securityholder affected. When a Default is waived, it is deemed cured, but no
such waiver shall extend to any subsequent or other Default or impair any
consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority in
principal amount of the Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Securityholders or would involve the Trustee in personal
liability; provided, however, that the Trustee may
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take any other action deemed proper by the Trustee that is not inconsistent with
such direction. Prior to taking any action hereunder, the Trustee shall be
entitled to indemnification satisfactory to it in its sole discretion against
all losses and expenses caused by taking or not taking such action.
SECTION 6.06. Limitation on Suits. A Securityholder may not pursue
any remedy with respect to this Indenture or the Securities unless:
(a) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(b) the Holders of at least 25% in principal amount of the
Securities make a written request to the Trustee to pursue the remedy;
(c) such Holder or Holders offer to the Trustee reasonable security
or indemnity against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or indemnity; and
(e) the Holders of a majority in principal amount of the Securities
do not give the Trustee a direction inconsistent with the request during
such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights
of another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.07. Rights of Holders To Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of principal of and liquidated damages and interest on the Securities
held by such Holder, on or after the respective due dates expressed in the
Securities, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default
specified in Section 6.01(a) or (b) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount then due and owing (together
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with interest on any unpaid interest to the extent lawful) and the amounts
provided for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Company, any Subsidiary or
Guarantor Subsidiary, their creditors or their property and, unless prohibited
by law or applicable regulations, may vote on behalf of the Holders in any
election of a trustee in bankruptcy or other Person performing similar
functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article VI, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of Senior Indebtedness to the extent required by
Article X;
THIRD: to Securityholders for amounts due and unpaid on the
Securities for principal and interest, ratably, and any liquidated damages
without preference or priority of any kind, according to the amounts due
and payable on the Securities for principal, any liquidated damages and
interest, respectively; and
FOURTH: to the Company.
The Trustee may fix a record date and payment date for any payment
to Securityholders pursuant to this Section. At least 15 days before such record
date, the Trustee shall mail to each Securityholder and the Company a notice
that states the record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken
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or omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07 or a suit by Holders of more than 10% in
principal amount of the Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. Neither the Company
nor any Guarantor Subsidiary (to the extent it may lawfully do so) shall at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company and each Guarantor Subsidiary (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and shall not hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the require-
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ments of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) 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
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or indemnity satisfactory to it against such risk or liability is
not reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
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SECTION 7.02. Rights of Trustee. Subject to Section 7.01:
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on the
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute wilful
misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or opinion
of counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other paper or document unless requested in writing to do so
by the Holders of not less than a majority in principal amount of the Securities
at the time outstanding, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent,
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Registrar, co-registrar or co-paying agent may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement of the Company in this Indenture or in any document issued in
connection with the sale of the Securities or in the Securities other than the
Trustee's certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Securityholder notice of the Default within the earlier of 90 days after it
occurs (if practicable) or 30 days after it is known to a Trust Officer or
written notice of it is received by the Trustee. Except in the case of a Default
in payment of principal of or interest on any Security (including payments
pursuant to the mandatory redemption provisions of such Security, if any), the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is in the
interests of Securityholders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as
practicable after each May 15 beginning with the May 15 following the date of
this Indenture, and in any event prior to July 15 in each year, the Trustee
shall mail to each Securityholder a brief report dated as of May 15 that
complies with Section 313(a) of the TIA. The Trustee shall also comply with
Section 313(b) of the TIA.
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange (if any) on which the
Securities are listed. The Company agrees to notify promptly the Trustee
whenever the Securities become listed on any stock exchange and of any delisting
thereof.
SECTION 7.07. Compensation and Indemnity. The Company shall pay to
the Trustee from time to time reasonable compensation for its services including
extraordinary services such as default administration. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. When the Trustee incurs expenses or renders services after the
incurrence of any Event of Default specified in Article VI
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hereof, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law. The Company
shall reimburse the Trustee upon request for all reasonable out-of-pocket
expenses incurred or made by it, including costs of collection, in addition to
the compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee's agents,
counsel, accountants and experts. The Company and each Guarantor Subsidiary,
jointly and severally shall indemnify the Trustee against any and all loss,
liability or expense (including reasonable attorneys' fees) incurred by the
Trustee without negligence or bad faith on its part in connection with the
administration of this trust and the performance of its duties hereunder. The
Trustee shall notify the Company of any claim for which it may seek indemnity
promptly upon obtaining actual knowledge thereof; provided, however, that any
failure so to notify the Company shall not relieve the Company or any Guarantor
Subsidiary of its indemnity obligations hereunder. The Company shall defend the
claim and the indemnified party shall provide reasonable cooperation at the
Company's expense in the defense. Such indemnified parties may have separate
counsel and the Company shall pay the fees and expenses of such counsel;
provided, however, that the Company shall not be required to pay such fees and
expenses if it assumes such indemnified parties' defense and, in such
indemnified parties' reasonable judgment, there is no conflict of interest
between the Company and such parties in connection with such defense. The
Company need not reimburse any expense or indemnify against any loss, liability
or expense incurred by an indemnified party through such party's own wilful
misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee other than money or property held in trust to pay
principal of and interest and any liquidated damages on particular Securities.
The Company's payment obligations pursuant to this Section shall
survive the satisfaction or discharge of this Indenture, any rejection or
termination of this Indenture under any bankruptcy law or the resignation or
removal of the Trustee. When the Trustee incurs expenses after the occurrence of
a Default specified in Section 6.01(g) or (h) with respect to the Company, the
expenses are intended to constitute expenses of administration under the
Bankruptcy Law.
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SECTION 7.08. Replacement of Trustee. The Trustee may resign at any
time by so notifying the Company. The Holders of a majority in principal amount
of the Securities may remove the Trustee by so notifying the Trustee and may
appoint a successor Trustee. The Company shall remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or other public officer takes charge of the Trustee
or its property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the Holders
of a majority in principal amount of the Securities and such Holders do not
reasonably promptly appoint a successor Trustee, or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in principal amount of the Securities may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
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SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at
all times satisfy the requirements of TIA ss. 310(a). The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with
TIA ss. 310(b); provided, however, that there shall be excluded from the
operation of TIAss. 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
TIA ss. 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA ss. 311(a), excluding any creditor relationship
listed in TIA ss. 311(b). A Trustee who has resigned or been removed shall be
subject to TIA ss. 311(a) to the extent indicated.
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance. (a)
When (i) the Company delivers to the Trustee all outstanding Securities (other
than Securities replaced pursuant to Section 2.07) for cancelation or (ii) all
outstanding Securities have become
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due and payable at maturity or a notice of redemption has been mailed pursuant
to Article III hereof and the Company irrevocably deposits with the Trustee
funds or U.S. Government Obligations on which payment of principal and interest
when due will be sufficient to pay at maturity or upon redemption all
outstanding Securities, including interest thereon to maturity or such
redemption date (other than Securities replaced pursuant to Section 2.07), and
if in either case the Company pays all other sums payable hereunder by the
Company, then this Indenture shall, subject to Section 8.01(c), cease to be of
further effect. The Trustee shall acknowledge satisfaction and discharge of this
Indenture on demand of the Company accompanied by an Officers' Certificate and
an Opinion of Counsel and at the cost and expense of the Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any time
may terminate (i) all of its obligations under the Securities and this Indenture
("legal defeasance option") or (ii) its obligations under Sections 4.02, 4.03,
4.04, 4.05, 4.06, 4.07, 4.08, 4.11, 4.12, 4.13, 4.14, 5.01(c) and 5.01(d) and
the operation of Section 6.01(d), 6.01(e), 6.01(f), 6.01(g) (with respect to
Subsidiaries of the Company only), 6.01(h) (with respect to Subsidiaries of the
Company only) and 6.01(i) ("covenant defeasance option"). The Company may
exercise its legal defeasance option notwithstanding its prior exercise of its
covenant defeasance option. In the event that the Company terminates all of its
obligations under the Securities and this Indenture by exercising either its
covenant defeasance option or its legal defeasance option, the obligations under
the Subsidiary Guarantees shall each be terminated simultaneously with the
termination of such obligations.
If the Company exercises its legal defeasance option, payment of the
Securities may not be accelerated because of an Event of Default. If the Company
exercises its covenant defeasance option, payment of the Securities may not be
accelerated because of an Event of Default specified in Section 6.01(d),
6.01(e), 6.01(f), 6.01(g) (with respect to Subsidiaries of the Company only),
6.01(h) or 6.01(i) or because of the failure of the Company to comply with
clauses (c) and (d) of Section 5.01.
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.03, 2.04, 2.05,
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2.06, 2.07, 7.07, 7.08, 8.04, 8.05 and 8.06 shall survive until the Securities
have been paid in full. Thereafter, the Company's obligations in Sections 7.07,
8.04 and 8.05 shall survive.
SECTION 8.02. Conditions to Defeasance. The Company may exercise its
legal defeasance option or its covenant defeasance option only if:
(a) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the payment of principal, premium (if
any) and interest on the Securities to maturity or redemption, as the case
may be;
(b) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the pay ments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay principal and interest when due
on all the Securities to maturity or redemption, as the case may be;
(c) 123 days pass after the deposit is made and during the 123-day
period no Default specified in Section 6.01(g) or (h) with respect to the
Company occurs which is continuing at the end of the period;
(d) the deposit does not constitute a default under any other
agreement binding on the Company and is not prohibited by Article X;
(e) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or
is qualified as, a regulated investment company under the Investment
Company Act of 1940;
(f) in the case of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel stating 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, and based thereon such Opinion of Counsel shall
confirm that, the Securityholders will not recognize income, gain or loss
for Federal income
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tax purposes as a result of such defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times
as would have been the case if such defeasance had not occurred;
(g) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Securityholders will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such covenant defeasance
had not occurred; and
(h) the Company delivers to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent to
the defeasance and discharge of the Securities as contemplated by this
Article VIII have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article III.
SECTION 8.03. Application of Trust Money. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to this
Article VIII. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Securities. Money
and securities so held in trust are not subject to Article X.
SECTION 8.04. Repayment to Company. The Trustee and the Paying Agent
shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and
the Paying Agent shall pay to the Company upon written request any money held by
them for the payment of principal or interest that remains unclaimed for two
years, and, thereafter, Securityholders entitled to the money must look to the
Company for payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations. The Company
shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or
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assessed against deposited U.S. Government Obligations or the principal and
interest received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article VIII by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article VIII until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article VIII; provided, however, 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
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders. The Company and the
Trustee may amend this Indenture or the Securities without notice to or consent
of any Securityholder:
(a) to cure any ambiguity, omission, defect or inconsistency;
(b) to comply with Article V;
(c) to provide for uncertificated Securities in addition to or in
place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(d) to make any change in Article X or Article XII that would limit
or terminate the benefits available to any holder of Senior Indebtedness
(or Representatives therefor) under Article X or Article XII;
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(e) to add additional Guarantees with respect to the Securities or
to secure the Securities;
(f) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Company;
(g) to comply with any requirements of the SEC in connection with
qualifying this Indenture under the TIA;
(h) to make any change that does not adversely affect the rights of
any Securityholder; or
(i) to provide for the issuance of the Exchange Securities or
Private Exchange Securities, which shall have terms substantially
identical in all material respects to the Initial Securities (except that
the transfer restrictions contained in the Initial Securities shall be
modified or eliminated, as appropriate), and which shall be treated,
together with any outstanding Initial Securities, as a single issue of
securities.
An amendment under this Section may not make any change that
adversely affects the rights under Article X or Article XII of any holder of
Senior Indebtedness then outstanding unless the holders of such Senior
Indebtedness (or any group or representative thereof authorized to give a
consent) consent to such change.
After an amendment under this Section becomes effective, the Company
shall mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section.
SECTION 9.02. With Consent of Holders. The Company, the Guarantor
Subsidiaries and the Trustee may amend this Indenture or the Securities with the
written consent of the Holders of at least a majority in principal amount of the
Securities. However, without the consent of each Securityholder affected, an
amendment may not:
(a) reduce the amount of Securities whose Holders must consent to an
amendment;
(b) reduce the rate of or extend the time for payment of interest or
any liquidated damages on any Security;
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(c) reduce the principal of or extend the Stated Maturity of any
Security;
(d) reduce the premium payable upon the redemption of any Security
or change the time at which any Security may be redeemed in accordance
with Article III;
(e) make any Security payable in money other than that stated in the
Security;
(f) make any change in Article X or Article XII that adversely
affects the rights of any Securityholder under Article X or Article XII;
(g) impair the right of any Holder to receive payment of principal
of and interest on such Holder's Notes on or after the due dates therefor
or to institute suit for the enforcement of any payment on or with respect
to such Holder's Notes;
(h) make any change in Section 6.04 or 6.07 or the second sentence
of this Section; or
(i) modify or affect in any manner adverse to the Holders the terms
and conditions of the obligation of any Guarantor Subsidiary for the due
and punctual payment of the principal of or any liquidated damages or
interest on Securities.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent approves the substance thereof.
An amendment under this Section may not make any change that
adversely affects the rights under Article X of any holder of Senior
Indebtedness then outstanding unless the holders of such Senior Indebtedness (or
any group or representative thereof authorized to give a consent) consent to
such change.
After an amendment under this Section becomes effective, the Company
shall mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section.
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SECTION 9.03. Compliance with Trust Indenture Act. Every amendment
to this Indenture or the Securities shall comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such
Holder's Security or portion of the Security if the Trustee receives the notice
of revocation before the date the amendment or waiver becomes effective. After
an amendment or waiver becomes effective, it shall bind every Securityholder.
An amendment or waiver becomes effective once the requisite number of consents
are received by the Company or the Trustee.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an amendment
changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.06. Trustee To Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article IX if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In sign-
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ing such amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture that
such amendment is the legal, valid and binding obligation of the Company and the
Guarantor Subsidiaries enforceable against them in accordance with its terms,
subject to customary exceptions, and complies with the provisions hereof
(including Section 9.03).
SECTION 9.07. Payment for Consent. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE X
Subordination
SECTION 10.01. Agreement To Subordinate. The Company agrees, and
each Securityholder by accepting a Security agrees, that the Indebtedness
evidenced by the Securities is subordinated in right of payment, to the extent
and in the manner provided in this Article X, to the prior payment in full of
all Senior Indebtedness of the Company and that the subordination is for the
benefit of and enforceable by the holders of such Senior Indebtedness. The
Securities shall in all respects rank pari passu in right of payment with all
other Senior Subordinated Indebtedness of the Company and all existing Deferred
Obligations of the Company and shall rank senior in right of payment to all
existing and future Subordinated Obligations of the Company and all Deferred
Obligations of the Company Incurred after the Closing Date; and only
Indebtedness of the Company that is Senior Indebtedness of the Company shall
rank senior to the Securities in accordance with the provisions set forth
herein. For purposes of these subordination provisions, the Indebtedness
evidenced by the Securities is deemed to include the liquidated damages payable
pursuant to the provisions set forth in the Securities and in the Exchange and
Registration Rights Agreement. All provisions of this Article X shall be subject
to Section 10.12.
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SECTION 10.02. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of the Company to creditors upon a total
or partial liquidation or a total or partial dissolution of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property:
(a) holders of Senior Indebtedness of the Company shall be entitled
to receive payment in full in cash of the Senior Indebtedness before
Securityholders shall be entitled to receive any payment of principal of
or interest on the Securities; and
(b) until the Senior Indebtedness of the Company is paid in full in
cash, any payment or distribution to which Securityholders would be
entitled but for this Article X shall be made to holders of Senior
Indebtedness of the Company as their interests may appear, except that
Securityholders may receive shares of stock and any debt securities that
are subordinated to Senior Indebtedness of the Company to at least the
same extent as the Securities.
SECTION 10.03. Default on Senior Indebtedness. The Company may not
pay the principal of, premium (if any) or interest on the Securities or make any
deposit pursuant to Section 8.01 and may not repurchase, redeem or otherwise
retire any Securities (collectively, "pay the Securities") if (a) any Senior
Indebtedness of the Company is not paid when due or (b) any other default on
such Senior Indebtedness occurs and the maturity of such Senior Indebtedness is
accelerated in accordance with its terms unless, in either case, (i) the default
has been cured or waived and any such acceleration has been rescinded or (ii)
such Senior Indebtedness has been paid in full; provided, however, that the
Company may pay the Securities without regard to the foregoing if the Company
and the Trustee receive written notice approving such payment from the
Representative of the Senior Indebtedness with respect to which either of the
events in clause (a) or (b) of this sentence has occurred and is continuing.
During the continuance of any default (other than a default described in clause
(a) or (b) of the preceding sentence) with respect to any Designated Senior
Indebtedness pursuant to which the maturity thereof may be accelerated
immediately without further notice (except such notice as may be required to
effect such acceleration) or without the expiration of any applicable grace
periods, the Company may not pay the Securities for a period (a "Payment
Blockage Period") commencing upon the receipt by the Trustee (with a copy to the
Company) of written notice (a "Blockage Notice") of such
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default from the Representative of such Designated Senior Indebtedness
specifying an election to effect a Payment Blockage Period and ending 179 days
thereafter (or earlier if such Payment Blockage Period is terminated (i) by
written notice to the Trustee and the Company from the Person or Persons who
gave such Blockage Notice, (ii) by repayment in full of such Designated Senior
Indebtedness or (iii) because the default giving rise to such Blockage Notice is
no longer continuing). Notwithstanding the provisions described in the
immediately preceding sentence (but subject to the provisions contained in the
first sentence of this Section), unless the holders of such Designated Senior
Indebtedness or the Representative of such holders shall have accelerated the
maturity of such Designated Senior Indebtedness, the Company may resume payments
on the Securities after such Payment Blockage Period, including any missed
payments. Not more than one Blockage Notice may be given in any consecutive
360-day period, irrespective of the number of defaults with respect to
Designated Senior Indebtedness during such period; provided, however, that if
any Blockage Notice within such 360-day period is given by or on behalf of any
holders of Designated Senior Indebtedness other than the Bank Indebtedness, the
Representative of the Bank Indebtedness may give another Blockage Notice within
such period; provided further, however, that in no event may the total number of
days during which any Payment Blockage Period or Periods is in effect exceed 179
days in the aggregate during any 360 consecutive day period. For purposes of
this Section, no default or event of default that existed or was continuing on
the date of the commencement of any Payment Blockage Period with respect to the
Designated Senior Indebtedness initiating such Payment Blockage Period shall be,
or be made, the basis of the commencement of a subsequent Payment Blockage
Period by the Representative of such Designated Senior Indebtedness, whether or
not within a period of 360 consecutive days, unless such default or event of
default shall have been cured or waived for a period of not less than 90
consecutive days.
SECTION 10.04. Acceleration of Payment of Securities. If payment of
the Securities is accelerated because of an Event of Default, the Company or the
Trustee shall promptly notify the holders of the Designated Senior Indebtedness
(or their Representative) of the acceleration. If any Designated Senior
Indebtedness is outstanding, the Company may not pay the Securities until five
Business Days after such holders or the Representative of the Designated Senior
Indebtedness receive notice of such acceleration and, thereafter, may pay the
Securities only if this Article X otherwise permits payment at that time.
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SECTION 10.05. When Distribution Must Be Paid Over. If a
distribution is made to Securityholders that because of this Article X should
not have been made to them, the Securityholders who receive the distribution
shall hold it in trust for holders of Senior Indebtedness of the Company and pay
it over to them as their interests may appear.
SECTION 10.06. Subrogation. After all Senior Indebtedness of the
Company is paid in full in cash and until the Securities are paid in full in
cash, Securityholders shall be subrogated to the rights of holders of Senior
Indebtedness of the Company to receive distributions applicable to Senior
Indebtedness. A distribution made under this Article X to holders of Senior
Indebtedness which otherwise would have been made to Securityholders is not, as
between the Company and Securityholders, a payment by the Company on Senior
Indebtedness.
SECTION 10.07. Relative Rights. This Article X defines the relative
rights of Securityholders and holders of Senior Indebtedness of the Company.
Nothing in this Indenture shall:
(a) impair, as between the Company and Securityholders, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on and liquidated damages in respect of, the
Securities in accordance with their terms; or
(b) prevent the Trustee or any Securityholder from exercising its
available remedies upon a Default, subject to the rights of holders of
Senior Indebtedness of the Company to receive distributions otherwise
payable to Securityholders.
SECTION 10.08. Subordination May Not Be Impaired by Company. No
right of any holder of Senior Indebtedness to enforce the subordination of the
Indebtedness evidenced by the Securities shall be impaired by any act or failure
to act by the Company or by its failure to comply with this Indenture.
SECTION 10.09. Rights of Trustee and Paying Agent. Notwithstanding
Section 10.03, the Trustee or Paying Agent may continue to make payments on the
Securities and shall not be charged with knowledge of the existence of facts
that would prohibit the making of any such payments unless, not less than two
Business Days prior to the date of such payment, a Trust Officer of the Trustee
receives notice
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satisfactory to it that payments may not be made under this Article X. The
Company, the Registrar or co-registrar, the Paying Agent, a Representative or a
holder of Senior Indebtedness of the Company may give the notice; provided,
however, that, if an issue of Senior Indebtedness of the Company has a
Representative, only the Representative may give the notice. The Trustee shall
be entitled to rely on the delivery to it of a written notice by a Person
representing himself or itself to be a holder of any Senior Indebtedness of the
Company (or a Representative of such holder) to establish that such notice has
been given by a holder of such Senior Indebtedness or Representative thereof.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. The
Registrar and co-registrar and the Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth in this
Article X with respect to any Senior Indebtedness of the Company which may at
any time be held by it, to the same extent as any other holder of Senior
Indebtedness of the Company; and nothing in Article VII shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article X shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
7.07.
SECTION 10.10. Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Senior Indebtedness
of the Company, the distribution may be made and the notice given to their
Representative (if any).
SECTION 10.11. Article X Not To Prevent Events of Default or Limit
Right To Accelerate. The failure to make a payment pursuant to the Securities by
reason of any provision in this Article X shall not be construed as preventing
the occurrence of a Default. Nothing in this Article X shall have any effect on
the right of the Securityholders or the Trustee to accelerate the maturity of
the Securities.
SECTION 10.12. Trust Moneys Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article VIII by the Trustee
for the payment of principal of and interest on the Securities shall not be
subordinated to the prior payment of any Senior Indebtedness of the Company or
subject to the restrictions set forth in this Article X, and none of the
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Securityholders shall be obligated to pay over any such amount to the Company or
any holder of Senior Indebtedness of the Company or any other creditor of the
Company.
SECTION 10.13. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article X, the Trustee and the Securityholders
shall be entitled to rely (a) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section
10.02 are pending, (b) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Securityholders or (c) upon the Representatives for the holders of Senior
Indebtedness of the Company for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior
Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article X. In the event that the Trustee
determines, in good faith, that evidence is required with respect to the right
of any Person as a holder of Senior Indebtedness of the Company to participate
in any payment or distribution pursuant to this Article 10, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness of the Company held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and other facts pertinent to the rights of such Person
under this Article 10, and, if such evidence is not furnished, the Trustee may
defer any payment to such Person pending judicial determination as to the right
of such Person to receive such payment. The provisions of Sections 7.01 and 7.02
shall be applicable to all actions or omissions of actions by the Trustee
pursuant to this Article X.
SECTION 10.14. Trustee To Effectuate Subordination. Each
Securityholder by accepting a Security authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Securityholders and the holders of
Senior Indebtedness of the Company as provided in this Article X and appoints
the Trustee as attorney-in-fact for any and all such purposes.
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of the Company and shall not be liable to any
such holders if it shall mistakenly pay over or distribute to
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Securityholders or the Company or any other Person, money or assets to which any
holders of Senior Indebtedness of the Company shall be entitled by virtue of
this Article X or otherwise.
SECTION 10.16. Reliance by Holders of Senior Indebtedness on
Subordination Provisions. Each Securityholder by accepting a Security
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness of the Company, whether such Senior Indebtedness was created or
acquired before or after the issuance of the Securities, to acquire and continue
to hold, or to continue to hold, such Senior Indebtedness and such holder of
Senior Indebtedness shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Indebtedness.
SECTION 10.17. Trustee's Compensation Not Prejudiced. Nothing in
this Article shall apply to amounts due to the Trustee pursuant to other
sections of this Indenture.
ARTICLE XI
Subsidiary Guarantees
SECTION 11.01. Subsidiary Guarantees. Each Guarantor Subsidiary
hereby jointly and severally guarantees on an unsecured, senior subordinated
basis, as a primary obligor and not merely as a surety, to each Holder and to
the Trustee and its successors and assigns (a) the full and punctual payment of
principal of and interest on and liquidated damages in respect of the Securities
when due, whether at Stated Maturity, by acceleration, by redemption or
otherwise, and all other monetary obligations of the Company under this
Indenture (including obligations to the Trustee) and the Securities and (b) the
full and punctual performance within applicable grace periods of all other
obligations of the Company whether for expenses, indemnification or otherwise
under this Indenture and the Securities (all the foregoing being hereinafter
collectively called the "Obligations"). Each Guarantor Subsidiary further agrees
that the Obligations may be extended or renewed, in whole or in part, without
notice or further assent from each such Guarantor Subsidiary, and that each such
Guarantor Subsidiary shall remain bound under this Article XI notwithstanding
any extension or renewal of any Obligation.
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Each Guarantor Subsidiary waives presentation to, demand of, payment
from and protest to the Company of any of the Obligations and also waives notice
of protest for nonpayment. Each Guarantor Subsidiary waives the benefits of N.C.
Gen. Stat. ss. 26-7 through ss. 26-9. Each Guarantor Subsidiary waives notice of
any default under the Securities or the Obligations. The obligations of each
Guarantor Subsidiary hereunder shall not be affected by (a) the failure of any
Holder or the Trustee to assert any claim or demand or to enforce any right or
remedy against the Company or any other Person under this Indenture, the
Securities or any other agreement or otherwise; (b) any extension or renewal of
any thereof; (c) any rescission, waiver, amendment or modification of any of the
terms or provisions of this Indenture, the Securities or any other agreement;
(d) the release of any security held by any Holder or the Trustee for the
Obligations or any of them; (e) the failure of any Holder or Trustee to exercise
any right or remedy against any other guarantor of the Obligations; or (f) any
change in the ownership of such Guarantor Subsidiary, except as provided in
Section 11.02(b).
Each Guarantor Subsidiary hereby waives any right to which it may be
entitled to have its obligations hereunder divided among the Guarantor
Subsidiaries, such that such Guarantor Subsidiary's obligations would be less
than the full amount claimed. Each Guarantor Subsidiary hereby waives any right
to which it may be entitled to have the assets of the Company first be used and
depleted as payment of the Company's or such Guarantor Subsidiary's obligations
hereunder prior to any amounts being claimed from or paid by such Guarantor
Subsidiary hereunder. Each Guarantor Subsidiary hereby waives any right to which
it may be entitled to require that the Company be sued prior to an action being
initiated against such Guarantor Subsidiary.
Each Guarantor Subsidiary further agrees that its Subsidiary
Guarantee herein constitutes a guarantee of payment, performance and compliance
when due (and not a guarantee of collection) and waives any right to require
that any resort be had by any Holder or the Trustee to any security held for
payment of the Obligations.
The Subsidiary Guarantee of each Guarantor Subsidiary is, to the
extent and in the manner set forth in Article XII, subordinated and subject in
right of payment to the prior payment in full in cash of the principal of and
premium, if any, and interest on all Senior Indebtedness of the relevant
Guarantor Subsidiary and is made subject to such provisions of this Indenture.
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The obligations of each Guarantor Subsidiary hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to any defense of setoff, counterclaim, recoupment or
termination whatsoever or by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of each Guarantor Subsidiary herein
shall not be discharged or impaired or otherwise affected by the failure of any
Holder or the Trustee to assert any claim or demand or to enforce any remedy
under this Indenture, the Securities or any other agreement, by any waiver or
modification of any thereof, by any default, failure or delay, wilful or
otherwise, in the performance of the Obligations, or by any other act or thing
or omission or delay to do any other act or thing which may or might in any
manner or to any extent vary the risk of any Guarantor Subsidiary or would
otherwise operate as a discharge of any Guarantor Subsidiary as a matter of law
or equity.
Each Guarantor Subsidiary agrees that its Subsidiary Guarantee shall
remain in full force and effect until payment in full of all the Obligations.
Each Guarantor Subsidiary further agrees that its Subsidiary Guarantee herein
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of principal of or interest on any Obligation
is rescinded or must otherwise be restored by any Holder or the Trustee upon the
bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee has at law or in equity against any
Guarantor Subsidiary by virtue hereof, upon the failure of the Company to pay
the principal of or interest on any Obligation when and as the same shall become
due, whether at maturity, by acceleration, by redemption or otherwise, or to
perform or comply with any other Obligation, each Guarantor Subsidiary hereby
promises to and shall, upon receipt of written demand by the Trustee, forthwith
pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal
to the sum of (i) the unpaid principal amount of such Obligations, (ii) accrued
and unpaid interest on such Obligations (but only to the extent not prohibited
by law) and (iii) all other monetary Obligations of the Company to the Holders
and the Trustee.
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Each Guarantor Subsidiary agrees that it shall not be entitled to
any right of subrogation in relation to the Holders in respect of any
Obligations guaranteed hereby until payment in full of all Obligations. Each
Guarantor Subsidiary further agrees that, as between it, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
Obligations guaranteed hereby may be accelerated as provided in Article VI for
the purposes of any Subsidiary Guarantee herein, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
Obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such Obligations as provided in Article VI, such Obligations
(whether or not due and payable) shall forthwith become due and payable by such
Guarantor Subsidiary for the purposes of this Section.
Each Guarantor Subsidiary also agrees to pay any and all reasonable
costs and expenses (including reasonable attorneys' fees and expenses) incurred
by the Trustee or any Holder in enforcing any rights under this Section.
Upon request of the Trustee, each Guarantor Subsidiary shall execute
and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purpose of this
Indenture.
SECTION 11.02. Limitation on Liability. (a) Any term or provision of
this Indenture to the contrary notwithstanding, the maximum, aggregate amount of
the obligations guaranteed hereunder by any Guarantor Subsidiary shall not
exceed the maximum amount that can be hereby guaranteed without rendering this
Indenture, as it relates to any Guarantor Subsidiary, voidable under applicable
law relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.
(b) This Subsidiary Guarantee as to any Guarantor Subsidiary shall
terminate and be of no further force or effect upon (i) the merger or
consolidation of such Guarantor Subsidiary with or into any Person other than
the Company or a Subsidiary of the Company where such Guarantor Subsidiary is
not the surviving entity of such consolidation or merger or (ii) the sale by the
Company or any Subsidiary of the Company (or any pledgee of the Company) of the
Capital Stock of such Guarantor Subsidiary, where, after such sale, such
Guarantor Subsidiary is no longer a Subsidiary of the Company; provided,
however, that each such merger, consolidation or sale (or, in the case of a sale
by
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such a pledgee, the disposition of the proceeds of such sale) shall comply with
Section 4.06.
SECTION 11.03. Successors and Assigns. This Article XII shall be
binding upon each Guarantor Subsidiary and its successors and assigns and shall
inure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges conferred upon that party in this
Indenture and in the Securities shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions of this
Indenture.
SECTION 11.04. No Waiver. Neither a failure nor a delay on the part
of either the Trustee or the Holders in exercising any right, power or privilege
under this Article XI shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights, remedies and benefits of the Trustee and the
Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article XI at law,
in equity, by statute or otherwise.
SECTION 11.05. Modification. No modification, amendment or waiver of
any provision of this Article XI, nor the consent to any departure by any
Guarantor Subsidiary therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Trustee, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice to or demand on any Guarantor Subsidiary in any case shall
entitle such Guarantor Subsidiary to any other or further notice or demand in
the same, similar or other circumstances.
SECTION 11.06. Execution of Supplemental Indenture for Future
Guarantor Subsidiaries. Each Subsidiary which is required to become a Guarantor
Subsidiary pursuant to Section 4.11 shall promptly execute and deliver to the
Trustee a supplemental indenture in the form of Exhibit E hereto pursuant to
which such Subsidiary shall become a Guarantor Subsidiary under this Article XI
and shall guarantee the Obligations. Concurrently with the execution and
delivery of such supplemental indenture, the Company shall deliver to the
Trustee an Opinion of Counsel and an Officers' Certificate to the effect that
such supplemental indenture has been duly authorized, executed and delivered by
such Subsidiary and that, subject to the
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application of bankruptcy, insolvency, moratorium, fraudulent conveyance or
transfer and other similar laws relating to creditors' rights generally and to
the principles of equity, whether considered in a proceeding at law or in
equity, the Subsidiary Guarantee of such Guarantor Subsidiary is a legal, valid
and binding obligation of such Guarantor Subsidiary, enforceable against such
Guarantor Subsidiary in accordance with its terms.
ARTICLE XII
Subordination of the Subsidiary Guarantees
SECTION 12.01. Agreement To Subordinate. Each Guarantor Subsidiary
agrees, and each Securityholder by accepting a Security agrees, that the
Obligations of a Guarantor Subsidiary are subordinated in right of payment, to
the extent and in the manner provided in this Article XII, to the prior payment
in full of all Senior Indebtedness of such Guarantor Subsidiary and that the
subordination is for the benefit of and enforceable by the holders of Senior
Indebtedness of such Guarantor Subsidiary. The Obligations with respect to a
Guarantor Subsidiary shall in all respects rank pari passu in right of payment
with all other Senior Subordinated Indebtedness of such Guarantor Subsidiary and
shall rank senior in right of payment to all existing and future Subordinated
Obligations of such Guarantor Subsidiary and all Deferred Obligations of such
Guarantor Subsidiary Incurred after the Closing Date; and only Indebtedness of
such Guarantor Subsidiary that is Senior Indebtedness of such Guarantor
Subsidiary shall rank senior to the Obligations of such Guarantor Subsidiary in
accordance with the provisions set forth herein.
SECTION 12.02. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of a Guarantor Subsidiary to creditors
upon a total or partial liquidation or a total or partial dissolution of such
Guarantor Subsidiary or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to such Guarantor Subsidiary and its
properties:
(a) holders of Senior Indebtedness of such Guarantor Subsidiary
shall be entitled to receive payment in full in cash of such Senior
Indebtedness before Securityholders shall be entitled to receive any
payment of any Obligations from such Guarantor Subsidiary; and
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(b) until the Senior Indebtedness of such Guarantor Subsidiary is
paid in full in cash, any payment or distribution to which Securityholders
would be entitled but for this Article XII shall be made to holders of
such Senior Indebtedness as their respective interests may appear.
SECTION 12.03. Default on Senior Indebtedness of a Guarantor
Subsidiary. A Guarantor Subsidiary may not make any payment pursuant to any of
the Obligations or repurchase, redeem or otherwise retire any Securities
(collectively, "pay its Guarantee") if (a) any amount due in respect of any
Senior Indebtedness of such Guarantor Subsidiary is not paid when due or (b) any
other default on Senior Indebtedness of such Guarantor Subsidiary occurs and the
maturity of such Senior Indebtedness is accelerated in accordance with its terms
unless, in either case, (x) the default has been cured or waived and any such
acceleration has been rescinded or (y) such Senior Indebtedness has been paid in
full; provided, however, that such Guarantor Subsidiary may pay its Guarantee
without regard to the foregoing if such Guarantor Subsidiary and the Trustee
receive written notice approving such payment from the Representative of the
holders of the Senior Indebtedness with respect to which either of the events in
clause (a) or (b) of this sentence has occurred and is continuing. During the
continuance of any default (other than a default described in clause (a) or (b)
of the preceding sentence) with respect to any Designated Senior Indebtedness of
a Guarantor Subsidiary pursuant to which the maturity thereof may be accelerated
immediately without further notice (except such notice as may be required to
effect such acceleration) or without the expiration of any applicable grace
periods, such Guarantor Subsidiary may not pay its Guarantee for a period (a
"Payment Blockage Period") commencing upon the receipt by the Trustee (with a
copy to such Guarantor Subsidiary and the Company) of written notice (a
"Blockage Notice") of such default from the Representative of the holders of the
Designated Senior Indebtedness of such Guarantor Subsidiary specifying an
election to effect a Payment Blockage Period and ending 179 days thereafter (or
earlier if such Payment Blockage Period is terminated (i) by written notice to
the Trustee (with a copy to such Guarantor Subsidiary and the Company) from the
Person or Persons who gave such Blockage Notice, (ii) because such Designated
Senior Indebtedness has been repaid in full or (iii) because the default giving
rise to such Blockage Notice is no longer continuing). Notwithstanding the
provisions described in the immediately preceding sentence (but subject to the
provisions contained in the first sentence of this Section), unless the holders
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of such Designated Senior Indebtedness or the Representative of such holders
shall have accelerated the maturity of such Designated Senior Indebtedness, such
Guarantor Subsidiary may resume to pay its Guarantee after such Payment Blockage
Period, including any missed payments. Not more than one Blockage Notice may be
given with respect to a Guarantor Subsidiary in any consecutive 360-day period,
irrespective of the number of defaults with respect to Designated Senior
Indebtedness of such Guarantor Subsidiary during such period.
SECTION 12.04. Demand for Payment. If payment of the Securities is
accelerated because of an Event of Default and a demand for payment is made on a
Guarantor Subsidiary pursuant to Article XI, the Trustee shall promptly notify
the holders of the Designated Senior Indebtedness of such Guarantor Subsidiary
(or the Representative of such holders) of such demand. If any Designated Senior
Indebtedness of such Guarantor Subsidiary is outstanding, such Guarantor
Subsidiary may not pay its Guarantee until five Business Days after such holders
or the Representative of the holders of the Designated Senior Indebtedness of
such Guarantor Subsidiary receive notice of such demand and, thereafter, may pay
its Guarantee only if this Article XII otherwise permits payment at that time.
SECTION 12.05. When Distribution Must Be Paid Over. If a payment or
distribution is made to Securityholders that because of this Article XII should
not have been made to them, the Securityholders who receive the payment or
distribution shall hold such payment or distribution in trust for holders of the
Senior Indebtedness of the relevant Guarantor Subsidiary and pay it over to them
as their respective interests may appear.
SECTION 12.06. Subrogation. After all Senior Indebtedness of a
Guarantor Subsidiary is paid in full in cash and until the Securities are paid
in full in cash, Securityholders shall be subrogated to the rights of holders of
Senior Indebtedness of such Guarantor Subsidiary to receive distributions
applicable to Senior Indebtedness of such Guarantor Subsidiary. A distribution
made under this Article XII to holders of Senior Indebtedness of such Guarantor
Subsidiary which otherwise would have been made to Securityholders is not, as
between such Guarantor Subsidiary and Securityholders, a payment by such
Guarantor Subsidiary on Senior Indebtedness of such Guarantor Subsidiary.
SECTION 12.07. Relative Rights. This Article XII defines the
relative rights of Securityholders and holders
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of Senior Indebtedness of a Guarantor Subsidiary. Nothing in this Indenture
shall:
(a) impair, as between a Guarantor Subsidiary and Securityholders,
the obligation of a Guarantor Subsidiary which is absolute and
unconditional, to pay its Obligations to the extent set forth in Article
XI; or
(b) prevent the Trustee or any Securityholder from exercising its
available remedies upon a default by a Guarantor Subsidiary under its
Obligations, subject to the rights of holders of Senior Indebtedness of
such Guarantor Subsidiary to receive distributions otherwise payable to
Securityholders.
SECTION 12.08. Subordination May Not Be Impaired by a Guarantor
Subsidiary. No right of any holder of Senior Indebtedness of a Guarantor
Subsidiary to enforce the subordination of the Obligations of such Guarantor
Subsidiary shall be impaired by any act or failure to act by such Guarantor
Subsidiary or by its failure to comply with this Indenture.
SECTION 12.09. Rights of Trustee and Paying Agent. Notwithstanding
Section 12.03, the Trustee or the Paying Agent may continue to make payments on
the Securities and shall not be charged with knowledge of the existence of facts
that would prohibit the making of any such payments unless, not less than two
Business Days prior to the date of such payment, a Trust Officer of the Trustee
receives notice satisfactory to it that payments may not be made under this
Article XII. A Guarantor Subsidiary, the Registrar or co-registrar, the Paying
Agent, a Representative or a holder of Senior Indebtedness of a Guarantor
Subsidiary may give the notice; provided, however, that if an issue of Senior
Indebtedness of a Guarantor Subsidiary has a Representative, only the
Representative may give the notice. The Trustee shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself or itself to
be a holder of any Senior Indebtedness of a Guarantor Subsidiary (or a
Representative of such holder) to establish that such notice has been given by a
holder of such Senior Indebtedness or Representative thereof.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness of a Guarantor Subsidiary with the same rights it would have if it
were not Trustee. The Registrar and co-registrar and the Paying Agent may do the
same with like rights. The Trustee shall be entitled to all the rights set forth
in this Article XII
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with respect to any Senior Indebtedness of a Guarantor Subsidiary which may at
any time be held by it, to the same extent as any other holder of Senior
Indebtedness of such Guarantor Subsidiary; and nothing in Article VII shall
deprive the Trustee of any of its rights as such holder. Nothing in this Article
XII shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 7.07.
SECTION 12.10. Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Designated Senior
Indebtedness of a Guarantor Subsidiary, the distribution may be made and the
notice given to their Representative (if any).
SECTION 12.11. Article XII Not To Prevent Events of Default or Limit
Right To Accelerate. The failure of a Guarantor Subsidiary to make a payment on
any of its Obligations by reason of any provision in this Article XII shall not
be construed as preventing the occurrence of a default by such Guarantor
Subsidiary under its Obligations. Nothing in this Article XII shall have any
effect on the right of the Securityholders or the Trustee to make a demand for
payment on a Guarantor Subsidiary pursuant to Article XII.
SECTION 12.12. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article XII, the Trustee and the Securityholders
shall be entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 12.02
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Securityholders or (iii) upon the Representatives for the holders of Senior
Indebtedness of a Guarantor Subsidiary for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
the Senior Indebtedness of a Guarantor Subsidiary and other Indebtedness of a
Guarantor Subsidiary, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article XII. In the event that the Trustee determines, in good faith, that
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness of a Guarantor Subsidiary to participate in any payment or
distribution pursuant to this Article XII, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness of such Guarantor Subsidiary held by such Person,
the extent to which such Person is entitled to participate in such payment or
distribution and other facts
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pertinent to the rights of such Person under this Article XII, and, if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment. The provisions of Sections 7.01 and 7.02 shall be applicable to all
actions or omissions of actions by the Trustee pursuant to this Article XII.
SECTION 12.13. Trustee To Effectuate Subordination. Each
Securityholder by accepting a Security authorizes and directs the Trustee on his
or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination between the Securityholders and the
holders of Senior Indebtedness of each of the Guarantor Subsidiaries as provided
in this Article XII and appoints the Trustee as attorney-in-fact for any and all
such purposes.
SECTION 12.14. Trustee Not Fiduciary for Holders of Senior
Indebtedness of a Guarantor Subsidiary. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness of a Guarantor
Subsidiary and shall not be liable to any such holders if it shall mistakenly
pay over or distribute to Securityholders or the relevant Guarantor Subsidiary
or any other Person, money or assets to which any holders of Senior Indebtedness
of such Guarantor Subsidiary shall be entitled by virtue of this Article XII or
otherwise.
SECTION 12.15. Reliance by Holders of Senior Indebtedness of a
Guarantor Subsidiary on Subordination Provisions. Each Securityholder by
accepting a Security acknowledges and agrees that the foregoing subordination
provisions are, and are intended to be, an inducement and a consideration to
each holder of any Senior Indebtedness of a Guarantor Subsidiary, whether such
Senior Indebtedness was created or acquired before or after the issuance of the
Securities, to acquire and continue to hold, or to continue to hold, such Senior
Indebtedness and such holder of Senior Indebtedness shall be deemed conclusively
to have relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Indebtedness.
SECTION 12.16. Defeasance. The terms of this Article XII shall not
apply to payments from money or the proceeds of U.S. Government Obligations held
in trust by the Trustee for the payment of principal of and interest on the
Securities pursuant to the provisions described in Section 8.03.
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ARTICLE XIII
Miscellaneous
SECTION 13.01. Trust Indenture Act Controls. If any provision of
this Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 13.02. Notices. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company:
Richmont Marketing Specialists Inc.
0000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention of:
Chief Financial Officer
if to the Trustee:
Texas Commerce Bank National Association
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention of:
Corporate Trust Department
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be
mailed to the Securityholder at the Securityholder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 13.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to
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TIA ss. 312(b) with other Securityholders with respect to their rights under
this Indenture or the Securities. The Company, the Trustee, the Registrar and
anyone else shall have the protection of TIA ss. 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:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 13.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(a) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(b) 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;
(c) a statement that, in the opinion of such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 13.06. When Securities Disregarded. In determining whether
the Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Company, any Guarantor
Subsidiary or by any Person directly or indirectly
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controlling or controlled by or under direct or indirect common control with the
Company or any Guarantor Subsidiary shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded. Also,
subject to the foregoing, only Securities outstanding at the time shall be
considered in any such determination.
SECTION 13.07. Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or a meeting of Securityholders.
The Registrar and the Paying Agent may make reasonable rules for their
functions.
SECTION 13.08. Legal Holidays. A "Legal Holiday" is a Saturday, a
Sunday or a day on which banking institutions are not required to be open in
the State of New York. If a payment date is a Legal Holiday, payment shall be
made on the next succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period. If a regular record date is a Legal
Holiday, the record date shall not be affected.
SECTION 13.09. Governing Law. This Indenture and the Securities
shall be governed by, and construed in accordance with, the laws of the State of
New York but without giving effect to applicable principles of conflicts of law
to the extent that the application of the laws of another jurisdiction would be
required thereby.
SECTION 13.10. No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.
SECTION 13.11. Successors. All agreements of the Company and each
Guarantor Subsidiary in this Indenture and the Securities shall bind its
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 13.12. Multiple Originals. The parties may sign any number
of copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement. One signed copy is enough to prove
this Indenture.
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SECTION 13.13. Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed as of the date first written above.
RICHMONT MARKETING SPECIALISTS INC.,
By /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
MARKETING SPECIALISTS SALES
COMPANY,
By /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
MSSC CAROLINA, INC.,
By /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
FERRO & ASSOCIATES, INC.,
By /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
BROMAR, INC.,
By /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
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XXXX XXXXXXX & ASSOCIATES, INC.,
By /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
SERVICE ASSETS CORP.,
By /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
BROKERAGE SERVICES, INC.,
By /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
BATESTAS & CO.,
By /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
TOWER MARKETING, INC.,
By /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
T-BAR BROKERAGE,
By /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
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T'NT NATIONAL CONVENIENCE STORE BROKERS, INC.,
By /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
ATLAS MARKETING COMPANY, INC.,
By /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
CENTURY FOOD BROKERS OF HICKORY, INC.,
By /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
EAST COAST FOOD BROKERAGE, INC.,
By /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
ULTIMATE FOOD SALES, INC.,
By /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
CUMBERLAND FOOD BROKERS, INC.,
By /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
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MEATMASTER BROKERAGE, INC.,
By /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
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TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as Trustee,
By /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
117
EXHIBIT A
[FORM OF FACE OF INITIAL SECURITY]
[GLOBAL SECURITIES LEGEND]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY
TO THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.(1)
[RESTRICTED SECURITIES LEGEND]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT
--------
(1) This paragraph should only be added if the security is issued in global
form.
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2
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION
S UNDER THE SECURITIES ACT, (E) TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN
INSTITUTIONAL INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM
PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND IN THE CASE OF ANY OF THE FOREGOING CLAUSES (A) THROUGH (F), A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE COMPANY AND THE TRUSTEE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
RICHMONT MARKETING SPECIALISTS INC.
10 1/8% SENIOR SUBORDINATED NOTE DUE 2007
No. ___ CUSIP No.
$________
RICHMONT MARKETING SPECIALISTS INC., a Delaware corporation (the
"Company"), promises to pay to _______________,or registered assigns, the
principal sum of _____________ on December 15, 2007.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
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3
Additional provisions of this Security are set forth on the other
side of this Security.
Dated: December 19, 1997
RICHMONT MARKETING SPECIALISTS INC.,
by
---------------------------------
Name:
Title:
by
---------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Trustee,
certifies that this is
one of the Securities [Seal]
referred to in the Indenture,
by
-----------------------------
Authorized Signatory
120
4
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
10 1/8% Senior Subordinated Note due 2007
1. Interest
RICHMONT MARKETING SPECIALISTS INC., a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), promises to pay interest on the
principal amount of this Security at the rate per annum shown above. Capitalized
terms used but not defined herein shall have the meanings set forth in the
Indenture.
The Company will pay interest and liquidated damages, if any,
semiannually on June 15 and December 15 of each year. Interest on the Securities
will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the Issue Date with respect to this Security.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue principal at the rate borne by
the Securities, and it shall pay interest on overdue installments of interest at
the same rate to the extent lawful.
The Company and the Guarantor Subsidiaries will use their best
efforts to have the Exchange Offer Registration Statement or, if applicable, the
Shelf Registration Statement (each a "Registration Statement") declared
effective by the Commission as promptly as practicable after the filing thereof.
If (i) the Shelf Registration Statement or Exchange Offer Registration
Statement, as applicable under the Exchange and Registration Rights Agreement
dated the date hereof is not filed with the Commission within 16 months after
the Closing Date, (ii) the Exchange Offer Registration Statement or, as the case
may be, the Shelf Registration Statement, is not declared effective within 17
months after the Closing Date, (iii) the Exchange Offer is not consummated
within 18 months after the Closing Date, or (iv) the Shelf Registration
Statement if filed and declared effective within 17 months after the Closing
Date but shall thereafter cease to be effective (at any time that the Company is
obligated to maintain the effectiveness thereof) without being succeeded within
60 days by an additional Registration Statement filed and declared effective
(each such event referred to in clauses (i) through (iv), a "Registration
Default"), the Company will pay liquidated damages to each holder of Registrable
Securities, during the period of such Registration Default, in an amount equal
to $0.192 per week per $1,000 principal
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5
amount of the Securities constituting Registrable Securities held by such holder
until the applicable Registration Statement if filed or declared effective, the
Exchange Offer is consummated or the Shelf Registration Statement again becomes
effective, as the case may be. All accrued liquidated damages shall be paid to
holders in the same manner as interest payments on the Securities on semiannual
payment dates which correspond to interest payment dates for the Securities.
Following the cure of all Registration Defaults, the accrual of liquidated
damages will cease. The Trustee shall have no responsibility with respect to the
determination of the amount of any such liquidated damages. For purposes of the
foregoing, "Registrable Securities" means (i) each Initial Security until the
date on which such Initial Security has been exchanged for a freely transferable
Exchange Security in the Exchange Offer, (ii) each Initial Security or Private
Exchange Security until the date on which such Initial Security or Private
Exchange Security has been effectively registered under the Securities Act and
disposed of in accordance with the Shelf Registration Statement or (iii) each
Initial Security or Private Exchange Security until the date on which such
Initial Security or Private Exchange Security is distributed to the public
pursuant to Rule 144 under the Securities Act or is saleable pursuant to Rule
144(k) under the Securities Act.
2. Method of Payment
The Company will pay interest (except defaulted interest) on the
Securities to the Persons who are registered holders of Securities at the close
of business on the June 1 or December 1 next preceding the interest payment date
even if Securities are canceled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company will pay principal and interest in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. However, the Company may pay principal and interest by
check payable in such money or by wire transfer of federal funds.
3. Paying Agent and Registrar
Initially, TEXAS COMMERCE BANK NATIONAL ASSOCIATION (the "Trustee")
will act as Paying Agent and Registrar. The Company may appoint and change any
Paying Agent, Registrar or co-registrar. The Company or any
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6
domestically organized Wholly Owned Subsidiary may act as Paying Agent,
Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as of
December 19, 1997 (the "Indenture"), among the Company, the Guarantor
Subsidiaries and the Trustee. The terms of the Securities include those stated
in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date
of the Indenture (the "Act"). Terms defined in the Indenture and not defined
herein have the meanings ascribed thereto in the Indenture. The Securities are
subject to all such terms, and Securityholders are referred to the Indenture and
the Act for a statement of those terms.
The Securities are unsecured senior subordinated obligations of the
Company and are limited to $150,000,000 in aggregate principal amount
outstanding, of which $100,000,000 in aggregate principal amount will be
initially issued on the Closing Date. Subject to the conditions set forth in the
Indenture, the Company may issue up to an additional $50,000,000 aggregate
principal amount of Additional Securities. This Security is one of the Original
Securities referred to in the Indenture. The Securities include the Initial
Securities (consisting of the Original Securities and the Additional Securities)
and any Exchange Securities and Private Exchange Securities issued in exchange
for the Initial Securities pursuant to the Indenture. The Initial Securities,
the Exchange Securities and the Private Exchange Securities are treated as a
single class of securities under the Indenture. The Indenture imposes certain
limitations on the Incurrence of Indebtedness by the Company and its Restricted
Subsidiaries; the payment of dividends on, and redemption of, the Capital Stock
of the Company and its Restricted Subsidiaries and the redemption of certain
subordinated obligations of the Company and its Subsidiaries; other payments by
the Company and its Restricted Subsidiaries; Investments; sales and transfers of
assets and Capital Stock of the Restricted Subsidiaries; the issuance or sale of
Capital Stock of Restricted Subsidiaries; certain transactions with Affiliates
of the Company; the lines of business in which the Company and its Restricted
Subsidiaries may operate; Sale/Leaseback Transactions; and consolidations,
mergers and transfers of all or substantially all of the Company's or a
Guarantor Subsidiary's assets. In addition, the Indenture
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7
prohibits certain restrictions on distributions from Restricted Subsidiaries.
To secure the due and punctual payment of the principal and
liquidated damages and interest, if any, on the Securities and all other amounts
payable by the Company under the Indenture and the Securities when and as the
same shall be due and payable, whether at maturity, by acceleration or
otherwise, according to the terms of the Securities and the Indenture, the
Guarantor Subsidiaries have unconditionally guaranteed the Obligations on a
senior subordinated basis pursuant to the terms of the Indenture.
5. Optional Redemption
Except as set forth in the next paragraph, the Securities may not be
redeemed prior to December 15, 2002. Thereafter, the Securities will be subject
to redemption at any time at the option of the Company, in whole or in part, at
the following redemption prices (expressed as percentages of principal amount),
plus accrued and unpaid interest, if any, to the applicable redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date) if redeemed during
the 12-month period beginning on or after December 15 of the years set forth
below:
Redemption
Period Price
------ -----
2002............................................................... 105.063%
2003 ........................................................... 103.375%
2004............................................................... 101.688%
2005 and thereafter................................................ 100.000%
In addition, at any time and from time to time prior to December 15,
2000, the Company may redeem in the aggregate up to 35% of the original
aggregate principal amount of Securities with the proceeds of one or more Public
Equity Offerings by the Company following which there is a Public Market at a
redemption price of 110.125% of the principal amount thereof, plus the accrued
and unpaid interest, if any, to the redemption date (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date); provided, however, that at least 65% of the
original aggregate principal amount of Initial Securities remains outstanding
immediately after the occurrence of such redemption.
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6. Notice of Redemption
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Securities to be redeemed at its registered address all in accordance with the
Indenture. If less than all of the Securities are to be redeemed at any time,
the Trustee shall select the Securities to be redeemed pro rata, by lot or by a
method that complies with applicable legal and securities exchange requirements,
if any, and that the Trustee considers fair and appropriate and in accordance
with methods generally used at the time of selection by fiduciaries in similar
circumstances; provided that Securities in denominations larger than $1,000 may
be redeemed in part but only in whole multiples of $1,000. If money sufficient
to pay the redemption price of and accrued interest (if any) on all Securities
(or portions thereof) to be redeemed on the redemption date is deposited with
the Paying Agent on or before the redemption date and certain other conditions
are satisfied, on and after such date interest ceases to accrue on such
Securities (or such portions thereof) called for redemption.
7. Repurchase at the Option of the Holder
Upon a Change of Control, any Holder of Securities will have the
right, subject to certain conditions set forth in the Indenture, to cause the
Company to repurchase all or any part of the Securities of such Holder at a
purchase price equal to 101% of the principal amount of the Securities to be
repurchased plus accrued and unpaid interest, if any, to the date of repurchase
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date) as provided in, and
subject to the terms of, the Indenture.
8. Subordination
The Securities are subordinated to Senior Indebtedness as defined in
the Indenture. To the extent provided in the Indenture, Senior Indebtedness must
be paid before the Securities may be paid. The Company and each Guarantor
Subsidiary agrees, and each Securityholder by accepting a Security agrees, to
the subordination provisions contained in the Indenture and authorizes the
Trustee to give it effect and appoints the Trustee as attorney-in-fact for such
purpose.
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9. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. Upon any transfer or
exchange, the Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange any Securities selected for redemption (except, in
the case of a Security to be redeemed in part, the portion of the Security not
to be redeemed) or to transfer or exchange any Securities for a period of 15
days prior to a selection of Securities to be redeemed.
10. Persons Deemed Owners
The registered Holder of this Security may be treated as the owner
of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
12. Discharge and Defeasance
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
13. Amendment; Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least
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10
a majority in principal amount outstanding of the Securities and (ii) any past
default or noncompliance with any provision of the Indenture (other than
payment of principal and interest or default in respect of a provision that
under Section 9.02 of the Indenture cannot be amended without the consent of
each Securityholder affected) may be waived with the consent of the Holders of a
majority in principal amount then outstanding of the Securities. Subject to
certain exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company, the Guarantor Subsidiaries and the Trustee may
amend the Indenture or the Securities to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article V of the Indenture, or to provide for
uncertificated Securities in addition to or in place of certificated Securities
(provided that the uncertificated Securities are issued in registered form for
purposes of Section 163(f) of the Code, or in a manner such that the
uncertificated Securities are described in Section 163(f)(2)(B) of the Code), to
make any change in Article X or Article XII that would limit or terminate the
benefits available to any holder of Senior Indebtedness under Article X or
Article XII, to add additional Guarantees with respect to the Securities or to
secure the Securities, to make any change that would provide any additional
rights or benefits to the Holders of Securities or that does not adversely
affect the rights under this Indenture of any such Holder, to surrender rights
and powers conferred on the Company, to comply with requirements of the SEC in
order to effect or maintain the qualification of the Indenture under the TIA or
to provide for the issuance and authorization of the Exchange Securities or
Private Exchange Securities.
14. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for 30
days in payment of interest on the Securities (whether or not such payment is
prohibited by Article X); (ii) default in payment of principal on the Securities
at maturity, upon redemption pursuant to paragraph 5 of the Securities, upon
acceleration or otherwise, or failure by the Company to redeem or purchase
(whether or not such payment is prohibited by Article X) Securities when
required; (iii) failure by the Company to comply with other covenants and
agreements in the Indenture or the Securities, in certain cases subject to
notice and lapse of time; (iv) certain accelerations (including failure to pay
within any grace period after final maturity) of other Indebtedness of the
Company or any Restricted Subsidiary if the amount accelerated (or so unpaid)
exceeds $5,000,000 or its foreign currency equivalent; (v) certain
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11
events of bankruptcy, insolvency or reorganization with respect to the Company
and any Restricted Subsidiary which is a Significant Subsidiary; (vi) certain
judgments or decrees for the payment of money in excess of $5,000,000 or its
foreign currency equivalent against the Company or any Restricted Subsidiary;
and (vii) certain failures of a Subsidiary Guarantee to remain in full force and
effect and certain denials or disaffirmations of obligations under the Indenture
or a Subsidiary Guarantee by a Guarantor Subsidiary. If an Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the Securities may declare all the Securities to be due and
payable immediately. Certain events of bankruptcy or insolvency are Events of
Default that will result in the Securities being due and payable immediately.
Securityholders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Securities unless it receives indemnity or security
satisfactory to it. Subject to certain limitations, Holders of a majority in
principal amount of the Securities may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Securityholders notice of any
continuing Default (except a Default in payment of principal or interest) if it
determines that withholding notice is in the interest of the Holders.
15. Trustee Dealings with the Company
Subject to certain limitations imposed by the Act, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may other wise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
16. No Personal Liability of Directors, Officers, Employees and Stockholders
A director, officer, employee, stockholder or Affiliate of the
Company, as such, shall not have any liability for any obligations of the
Company under the Securities or this Indenture or for any claim based on, in
respect of, or by reason of such obligations or their creation. No director,
officer, employee, stockholder or Affiliate of any of the Guarantor
Subsidiaries, as such,
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12
will have any liability for any obligations of the Guarantor Subsidiaries under
the Security Guarantees, the Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder of Securities
and Security Guarantees by accepting a Security and a Security Guarantee waives
and releases all such liabilities. The waiver and release are part of the
consideration for issuance of the Securities and the Security Guarantees.
17. Governing Law
THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
18. Authentication
This Security shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
19. Abbreviations
Customary abbreviations may be used in the name of a Securityholder
or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
20. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
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13
The Company will furnish to any Securityholder upon written request
and without charge to the Securityholder a copy of the Indenture which has in
it the text of this Security in larger type. Requests may be made to:
RICHMONT MARKETING SPECIALISTS INC.
0000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention of Secretary
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14
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ____________________________________ agent to transfer
this Security on the books of the Company. The agent may substitute another to
act for him.
Date: ________________ Your Signature: _____________________
Signature Guarantee:____________________________________________________________
(Signature must be guaranteed by a participant in a
recognized signature guarantee medallion program)
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
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15
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF
TRANSFER RESTRICTED SECURITIES
Reference is hereby made to that certain Indenture dated December 19, 1997 (the
"Indenture") among Richmont Marketing Specialists Inc., as Issuer (the
"Company"), the Guarantor Subsidiaries (as defined therein) and Texas Commerce
Bank National Association, as trustee (the "Trustee"). Capitalized terms used
but not defined herein shall have the meanings set forth in the Indenture.
This certificate relates to $_________ principal amount of Securities held in
(check applicable space) ____ book-entry or _____ definitive form by the
undersigned.
The undersigned (check one box below):
|_| has requested the Trustee by written order to deliver in exchange for its
beneficial interest in the Global Security held by the Depository a
Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated above);
|_| has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the periods referred to in Rule
144(k) under the Securities Act, the undersigned confirms that such Securities
are being transferred in accordance with its terms:
CHECK ONE BOX BELOW:
(1) |_| to the Company; or
(2) |_| pursuant to an effective registration statement under
the Securities Act of 1933; or
(3) |_| inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act
of 1933) that purchases for its own account or for the
account of a qualified institutional buyer to whom
notice is given that such transfer is being made
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16
in reliance on Rule 144A under the Securities Act, in
each case pursuant to and in compliance with Rule 144A
under the Securities Act of 1933; or
(4) |_| outside the United States in an offshore transaction
within the meaning of Regulation S under the Securities
Act in compliance with Rule 904 under the Securities Act
of 1933; or
(5) |_| to an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act
of 1933) that has furnished to the Trustee a signed
letter containing certain representations and agreements
(the form of which letter is attached to the Indenture
as Exhibit D and which may be obtained from the
Trustee); or
(6) |_| pursuant to another available exemption from
registration provided by Rule 144 under the Securities
Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Securities evidenced by this certificate in the
name of any person other than the registered holder thereof;
provided, however, that if box (4), (5) or (6) is checked, the
Trustee may require, prior to registering any such transfer of the
Securities, such legal opinions, certifications and other
information as the Company has reasonably requested to confirm that
such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the
Securities Act of 1933, such as the exemption provided by Rule 144
under such Act.
____________________________
Signature
Signature Guarantee:____________________________________________________________
(Signature must be guaranteed by a participant in a
recognized signature guarantee medallion program)
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17
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933 ("Rule 144A"), and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information regarding
the Company as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated: ________________ ________________________________________
NOTICE: To be executed by an executive
officer
134
18
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have
been made:
Date of Amount of decrease Amount of increase Principal amount Signature of
Exchange in Principal in Principal of this Global authorized officer
Amount of this Amount of this Security following of Trustee or
Global Security Global Security such decrease or Securities
increase Custodian
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19
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.06 or 4.08 of the Indenture, check the box:
|_| 4.06 Asset Sale |_| 4.08 Change of Control
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.06 or 4.08 of the Indenture, state the amount:
$_______________.
Date: __________________ Your Signature: ____________________________________
(Sign exactly as your name appears
on the other side of the Security)
______________________
Tax I.D. number
Signature Guarantee:____________________________________________________________
(Signature must be guaranteed by a participant in a
recognized signature guarantee medallion program)
136
EXHIBIT B
[FORM OF FACE OF EXCHANGE SECURITY]
[Global Securities Legend]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY
TO THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN. (2)
RICHMONT MARKETING SPECIALISTS, INC.
10 1/8% SENIOR SUBORDINATED NOTE DUE 2007
No. _______ CUSIP No. _________
$
RICHMONT MARKETING SPECIALISTS INC., a Delaware corporation (the
"Company"), promises to pay to __________, or registered assigns, the principal
sum of $_________ on December 15, 2007.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
--------
(2) This paragraph should only be added if the Security is issued in global
form.
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2
Additional provisions of this Security are set forth on the other
side of this Security.
Dated: _________________
RICHMONT MARKETING SPECIALISTS INC.,
by
---------------------------------
Name:
Title:
by
---------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, as
Trustee, certifies that
this is one of the [Seal]
Securities referred to
in the Indenture,
by
------------------------------
Authorized Signatory
138
3
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY]
10 1/8% Senior Subordinated Note due 2007
1. Interest
RICHMONT MARKETING SPECIALISTS INC., a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company") promises to pay interest on the
principal amount of this Security at the rate per annum shown above. Capitalized
terms used but not defined herein shall have the meanings set forth in the
Indenture.
The Company will pay interest and liquidated damages, if any,
semiannually on June 15 and December 15 of each year. Interest on the Securities
will accrue from the most recent date to which interest has been paid on the
Initial Security for which this Exchange Security was issued or, if no interest
has been paid, from the Issue Date with respect to this Security. Interest will
be computed on the basis of a 360-day year of twelve 30-day months. The Company
shall pay interest on overdue principal at the rate borne by the Securities, and
it shall pay interest on overdue installments of interest at the same rate to
the extent lawful.
2. Method of Payment
The Company will pay interest (except defaulted interest) on the
Securities to the Persons who are registered holders of Securities at the close
of business on the June 1 or December 1 next preceding the interest payment date
even if Securities are canceled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company will pay principal and interest in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. However, the Company may pay principal and interest by
check payable in such money or by wire transfer of federal funds.
3. Paying Agent and Registrar
Initially, TEXAS COMMERCE BANK NATIONAL ASSOCIATION (the "Trustee")
will act as Paying Agent and Registrar. The Company may appoint and change any
Paying
139
4
Agent, Registrar or co-registrar. The Company or any domestically organized
Wholly Owned Subsidiary may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as of
December 19, 1997 (the "Indenture"), among the Company, the Guarantor
Subsidiaries and the Trustee. The terms of the Securities include those stated
in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date
of the Indenture (the "Act"). Terms defined in the Indenture and not defined
herein have the meanings ascribed thereto in the Indenture. The Securities are
subject to all such terms, and Securityholders are referred to the Indenture and
the Act for a statement of those terms.
The Securities are unsecured senior subordinated obligations of the
Company and are limited to $150,000,000 in aggregate principal amount
outstanding, of which $100,000,000 in aggregate principal amount will be
initially issued on the Closing Date. Subject to the conditions set forth in the
Indenture, the Company may issue up to an additional $50,000,000 aggregate
principal amount of Additional Securities. This Security is one of the Exchange
Securities referred to in the Indenture. The Securities include the Initial
Securities (consisting of the Original Securities and the Additional Securities)
and any Exchange Securities and Private Exchange Securities issued in exchange
for the Initial Securities pursuant to the Indenture. The Initial Securities,
the Exchange Securities and the Private Exchange Securities are treated as a
single class of securities under the Indenture. The Indenture imposes certain
limitations on the Incurrence of Indebtedness by the Company and its Restricted
Subsidiaries; the payment of dividends on, and redemption of, the Capital Stock
of the Company and its Restricted Subsidiaries and the redemption of certain
subordinated obligations of the Company and its Subsidiaries; other payments by
the Company and its Restricted Subsidiaries; Investments; sales and transfers of
assets and Capital Stock of the Restricted Subsidiaries; the issuance or sale of
Capital Stock of Restricted Subsidiaries; certain transactions with Affiliates
of the Company; the lines of business in which the Company and its Restricted
Subsidiaries may operate; Sale/Leaseback Transactions; and consolidations,
mergers and transfers of all or substantially all of the Company's or a
Guarantor Subsidiary's assets. In addition, the Indenture
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5
prohibits certain restrictions on distributions from Restricted Subsidiaries.
To secure the due and punctual payment of the principal and
liquidated damages and interest, if any, on the Securities and all other amounts
payable by the Company under the Indenture and the Securities when and as the
same shall be due and payable, whether at maturity, by acceleration or
otherwise, according to the terms of the Securities and the Indenture, the
Guarantor Subsidiaries have unconditionally guaranteed the Obligations on a
senior subordinated basis pursuant to the terms of the Indenture.
5. Optional Redemption
Except as set forth in the next paragraph, the Securities may not be
redeemed prior to December 15, 2002. Thereafter, the Securities will be subject
to redemption at any time at the option of the Company, in whole or in part, at
the following redemption prices (expressed as percentages of principal amount),
plus accrued and unpaid interest, if any, to the applicable redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date) if redeemed during
the 12-month period beginning on or after December 15 of the years set forth
below:
Redemption
Period Price
------ -----
2002............................................................... 105.063%
2003 ........................................................... 103.375%
2004............................................................... 101.688%
2005 and thereafter................................................ 100.000%
In addition, at any time and from time to time prior to December 15,
2000, the Company may redeem in the aggregate up to 35% of the original
aggregate principal amount of Securities with the proceeds of one or more Public
Equity Offerings by the Company following which there is a Public Market at a
redemption price of 110.125% of the principal amount thereof, plus the accrued
and unpaid interest, if any, to the redemption date (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date); provided, however, that at least 65% of the
original aggregate principal amount of Initial Securities remains outstanding
immediately after the occurrence of such redemption.
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6
6. Notice of Redemption
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Securities to be redeemed at its registered address all in accordance with the
Indenture. If less than all of the Securities are to be redeemed at any time,
the Trustee shall select the Securities to be redeemed pro rata, by lot or by a
method that complies with applicable legal and securities exchange requirements,
if any, and that the Trustee considers fair and appropriate and in accordance
with methods generally used at the time of selection by fiduciaries in similar
circumstances; provided that Securities in denominations larger than $1,000 may
be redeemed in part but only in whole multiples of $1,000. If money sufficient
to pay the redemption price of and accrued interest (if any) on all Securities
(or portions thereof) to be redeemed on the redemption date is deposited with
the Paying Agent on or before the redemption date and certain other conditions
are satisfied, on and after such date interest ceases to accrue on such
Securities (or such portions thereof) called for redemption.
7. Repurchase at the Option of the Holder
Upon a Change of Control, any Holder of Securities will have the
right, subject to certain conditions set forth in the Indenture, to cause the
Company to repurchase all or any part of the Securities of such Holder at a
purchase price equal to 101% of the principal amount of the Securities to be
repurchased plus accrued and unpaid interest, if any, to the date of repurchase
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date) as provided in, and
subject to the terms of, the Indenture.
8. Subordination
The Securities are subordinated to Senior Indebtedness as defined in
the Indenture. To the extent provided in the Indenture, Senior Indebtedness must
be paid before the Securities may be paid. The Company and each Guarantor
Subsidiary agrees, and each Securityholder by accepting a Security agrees, to
the subordination provisions contained in the Indenture and authorizes the
Trustee to give it effect and appoints the Trustee as attorney-in-fact for such
purpose.
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9. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. Upon any transfer or
exchange, the Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange any Securities selected for redemption (except, in
the case of a Security to be redeemed in part, the portion of the Security not
to be redeemed) or to transfer or exchange any Securities for a period of 15
days prior to a selection of Securities to be redeemed.
10. Persons Deemed Owners
The registered Holder of this Security may be treated as the owner
of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
12. Discharge and Defeasance
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
13. Amendment; Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount outstanding of the Securities
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and (ii) any past default or noncompliance with any provision of the Indenture
(other than payment of principal and interest or default in respect of a
provision that under Section 9.02 of the Indenture cannot be amended without the
consent of each Securityholder affected) may be waived with the consent of the
Holders of a majority in principal amount then outstanding of the Securities.
Subject to certain exceptions set forth in the Indenture, without the consent of
any Securityholder, the Company, the Guarantor Subsidiaries and the Trustee may
amend the Indenture or the Securities to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article V of the Indenture, or to provide for
uncertificated Securities in addition to or in place of certificated Securities
(provided that the uncertificated Securities are issued in registered form for
purposes of Section 163(f) of the Code, or in a manner such that the
uncertificated Securities are described in Section 163(f)(2)(B) of the Code), to
make any change in Article X or Article XII that would limit or terminate the
benefits available to any holder of Senior Indebtedness under Article X or
Article XII, to add additional Guarantees with respect to the Securities or to
secure the Securities, to make any change that would provide any additional
rights or benefits to the Holders of Securities or that does not adversely
affect the rights under this Indenture of any such Holder, to surrender rights
and powers conferred on the Company, to comply with requirements of the SEC in
order to effect or maintain the qualification of the Indenture under the TIA or
to provide for the issuance and authorization of the Exchange Securities or
Private Exchange Securities.
14. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for 30
days in payment of interest on the Securities (whether or not such payment is
prohibited by Article X); (ii) default in payment of principal on the Securities
at maturity, upon redemption pursuant to paragraph 5 of the Securities, upon
acceleration or otherwise, or failure by the Company to redeem or purchase
(whether or not such payment is prohibited by Article X) Securities when
required; (iii) failure by the Company to comply with other covenants and
agreements in the Indenture or the Securities, in certain cases subject to
notice and lapse of time; (iv) certain accelerations (including failure to pay
within any grace period after final maturity) of other Indebtedness of the
Company or any Restricted Subsidiary if the amount accelerated (or so unpaid)
exceeds $5,000,000 or its foreign currency equivalent; (v) certain events of
bankruptcy, insolvency or reorganization with
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respect to the Company and any Restricted Subsidiary which is a Significant
Subsidiary; (vi) certain judgments or decrees for the payment of money in excess
of $5,000,000 or its foreign currency equivalent against the Company or any
Restricted Subsidiary; and (vii) certain failures of a Subsidiary Guarantee to
remain in full force and effect and certain denials or disaffirmations of
obligations under the Indenture or a Subsidiary Guarantee by a Guarantor
Subsidiary. If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Securities may declare all
the Securities to be due and payable immediately. Certain events of bankruptcy
or insolvency are Events of Default that will result in the Securities being due
and payable immediately.
Securityholders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Securities unless it receives indemnity or security
satisfactory to it. Subject to certain limitations, Holders of a majority in
principal amount of the Securities may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Securityholders notice of any
continuing Default (except a Default in payment of principal or interest) if it
determines that withholding notice is in the interest of the Holders.
15. Trustee Dealings with the Company
Subject to certain limitations imposed by the Act, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may other wise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
16. No Personal Liability of Directors, Officers, Employees and Stockholders
A director, officer, employee, stockholder or Affiliate of the
Company, as such, shall not have any liability for any obligations of the
Company under the Securities or this Indenture or for any claim based on, in
respect of, or by reason of such obligations or their creation. No director,
officer, employee, stockholder or Affiliate of any of the Guarantor
Subsidiaries, as such, will have any liability for any obligations of the
Guarantor
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Subsidiaries under the Security Guarantees, the Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of Securities and Security Guarantees by accepting a Security and a
Security Guarantee waives and releases all such liabilities. The waiver and
release are part of the consideration for issuance of the Securities and the
Security Guarantees.
17. Governing Law
THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
18. Authentication
This Security shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
19. Abbreviations
Customary abbreviations may be used in the name of a Securityholder
or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
20. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
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The Company will furnish to any Securityholder upon written request
and without charge to the Securityholder a copy of the Indenture which has in
it the text of this Security in larger type. Requests may be made to:
RICHMONT MARKETING SPECIALISTS, INC.
0000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention of Secretary
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ____________________________________ agent to transfer
this Security on the books of the Company. The agent may substitute another to
act for him.
Date: ________________ Your Signature: _____________________
Signature Guarantee:____________________________________________________________
(Signature must be guaranteed by a participant in a
recognized signature guarantee medallion program)
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been
made:
Date of Amount of decrease Amount of increase Principal amount Signature of
Exchange in Principal in Principal of this Global authorized officer
Amount of this Amount of this Security following of Trustee or
Global Security Global Security such decrease or Securities
increase Custodian
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.06 or 4.08 of the Indenture, check the box:
|_| 4.06 Asset Sale |_| 4.08 Change of Control
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.06 or 4.08 of the Indenture, state the amount:
$_______________.
Date: __________________ Your Signature: ____________________________________
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:____________________________________________________________
(Signature must be guaranteed by a participant in a
recognized signature guarantee medallion program)
150
EXHIBIT C
[FORM OF FACE OF PRIVATE EXCHANGE SECURITY]
[GLOBAL SECURITIES LEGEND]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY
TO THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.(3)
[RESTRICTED SECURITIES LEGEND]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A
--------
(3) This paragraph should only be added if the security is issued in global
form.
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UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL
INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH
AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT
OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR
FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND
THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE
(D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN THE CASE OF ANY OF
THE FOREGOING CLAUSES (A) THROUGH (F), A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE COMPANY AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
RICHMONT MARKETING SPECIALISTS INC.
10 1/8% SENIOR SUBORDINATED NOTE DUE 2007
No. ___ CUSIP No.
$________
RICHMONT MARKETING SPECIALISTS INC., a Delaware corporation (the
"Company"), promises to pay to ______________ ,or registered assigns, the
principal sum of ______________ on December 15, 2007.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
Additional provisions of this Security are set forth on the other
side of this Security.
Dated: ________________
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3
RICHMONT MARKETING SPECIALISTS INC.,
by
---------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
as Trustee, certifies that
this is one of the Securities [Seal]
referred to in the Indenture,
by
------------------------------
Authorized Signatory
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4
[FORM OF REVERSE SIDE OF PRIVATE EXCHANGE SECURITY]
10 1/8% Senior Subordinated Note due 2007
1. Interest
RICHMONT MARKETING SPECIALISTS INC., a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), promises to pay interest on the
principal amount of this Security at the rate per annum shown above. Capitalized
terms used but not defined herein shall have the meanings set forth in the
Indenture.
The Company will pay interest and liquidated damages, if any,
semiannually on June 15 and December 15 of each year. Interest on the Securities
will accrue from the most recent date to which interest has been paid on the
Initial Security for which this Private Exchange Security was issued or, if no
interest has been paid, from the Issue Date with respect to this Security.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue principal at the rate borne by
the Securities, and it shall pay interest on overdue installments of interest at
the same rate to the extent lawful.
The Company and the Guarantor Subsidiaries will use their best
efforts to have the Exchange Offer Registration Statement or, if applicable, the
Shelf Registration Statement (each, a "Registration Statement") declared
effective by the Commission as promptly as practicable after the filing thereof.
If (i) the Shelf Registration Statement or Exchange Offer Registration
Statement, as applicable under the Exchange and Registration Rights Agreement
dated the date hereof is not filed with the Commission within 16 months after
the Closing Date, (ii) the Exchange Offer Registration Statement or, as the case
may be, the Shelf Registration Statement, is not declared effective within 17
months after the Closing Date, (iii) the Exchange Offer is not consummated
within 18 months after the Closing Date, or (iv) the Shelf Registration
Statement if filed and declared effective within 17 months after the Issue Date
but shall thereafter cease to be effective (at any time that the Company is
obligated to maintain the effectiveness thereof) without being succeeded within
60 days by an additional Registration Statement filed and declared effective
(each such event referred to in clauses (i) through (iv), a "Registration
Default"), the Company will pay liquidated damages to each holder of Registrable
Securities, during the period of such Registration Default,
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5
in an amount equal to $0.192 per week per $1,000 principal amount of the
Securities constituting Registrable Securities held by such holder until the
applicable Registration Statement if filed or declared effective, the Exchange
Offer is consummated or the Shelf Registration Statement again becomes
effective, as the case may be. All accrued liquidated damages shall be paid to
holders in the same manner as interest payments on the Securities on semiannual
payment dates which correspond to interest payment dates for the Securities.
Following the cure of all Registration Defaults, the accrual of liquidated
damages will cease. The Trustee shall have no responsibility with respect to the
determination of the amount of any such liquidated damages. For purposes of the
foregoing, "Registrable Securities" means (i) each Initial Security until the
date on which such Initial Security has been exchanged for a freely transferable
Exchange Security in the Exchange Offer, (ii) each Initial Security or Private
Exchange Security until the date on which such Initial Security or Private
Exchange Security has been effectively registered under the Securities Act and
disposed of in accordance with the Shelf Registration Statement or (iii) each
Initial Security or Private Exchange Security until the date on which such
Initial Security or Private Exchange Security is distributed to the public
pursuant to Rule 144 under the Securities Act or is saleable pursuant to Rule
144(k) under the Securities Act.
2. Method of Payment
The Company will pay interest (except defaulted interest) on the
Securities to the Persons who are registered holders of Securities at the close
of business on the June 1 or December 1 next preceding the interest payment date
even if Securities are canceled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company will pay principal and interest in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. However, the Company may pay principal and interest by
check payable in such money or by wire transfer of federal funds.
3. Paying Agent and Registrar
Initially, TEXAS COMMERCE BANK NATIONAL ASSOCIATION (the "Trustee")
will act as Paying Agent and Registrar. The Company may appoint and change any
Paying
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Agent, Registrar or co-registrar. The Company or any domestically organized
Wholly Owned Subsidiary may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as of
December 19, 1997 (the "Indenture"), among the Company, the Guarantor
Subsidiaries and the Trustee. The terms of the Securities include those stated
in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date
of the Indenture (the "Act"). Terms defined in the Indenture and not defined
herein have the meanings ascribed thereto in the Indenture. The Securities are
subject to all such terms, and Securityholders are referred to the Indenture and
the Act for a statement of those terms.
The Securities are unsecured senior subordinated obligations of the
Company and are limited to $150,000,000 in aggregate principal amount
outstanding, of which $100,000,000 in aggregate principal amount will be
initially issued on the Closing Date. Subject to the conditions set forth in the
Indenture, the Company may issue up to an additional $50,000,000 aggregate
principal amount of Additional Securities. This Security is one of the Private
Exchange Securities referred to in the Indenture. The Securities include the
Initial Securities (consisting of the Original Securities and the Additional
Securities) and any Exchange Securities and Private Exchange Securities issued
in exchange for the Initial Securities pursuant to the Indenture. The Initial
Securities, the Exchange Securities and the Private Exchange Securities are
treated as a single class of securities under the Indenture. The Indenture
imposes certain limitations on the Incurrence of Indebtedness by the Company and
its Restricted Subsidiaries; the payment of dividends on, and redemption of, the
Capital Stock of the Company and its Restricted Subsidiaries and the redemption
of certain subordinated obligations of the Company and its Subsidiaries; other
payments by the Company and its Restricted Subsidiaries; Investments; sales and
transfers of assets and Capital Stock of the Restricted Subsidiaries; the
issuance or sale of Capital Stock of Restricted Subsidiaries; certain
transactions with Affiliates of the Company; the lines of business in which the
Company and its Restricted Subsidiaries may operate; Sale/Leaseback
Transactions; and consolidations, mergers and transfers of all or substantially
all of the Company's or a Guarantor Subsidiary's assets. In addition, the
Indenture
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prohibits certain restrictions on distributions from Restricted Subsidiaries.
To secure the due and punctual payment of the principal and
liquidated damages and interest, if any, on the Securities and all other amounts
payable by the Company under the Indenture and the Securities when and as the
same shall be due and payable, whether at maturity, by acceleration or
otherwise, according to the terms of the Securities and the Indenture, the
Guarantor Subsidiaries have unconditionally guaranteed the Obligations on a
senior subordinated basis pursuant to the terms of the Indenture.
5. Optional Redemption
Except as set forth in the next paragraph, the Securities may not be
redeemed prior to December 15, 2002. Thereafter, the Securities will be subject
to redemption at any time at the option of the Company, in whole or in part, at
the following redemption prices (expressed as percentages of principal amount),
plus accrued and unpaid interest, if any, to the applicable redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date) if redeemed during
the 12-month period beginning on or after December 15 of the years set forth
below:
Redemption
Period Price
------ -----
2002.............................................................. 105.063%
2003 .......................................................... 103.375%
2004.............................................................. 101.688%
2005 and thereafter............................................... 100.000%
In addition, at any time and from time to time prior to December 15,
2000, the Company may redeem in the aggregate up to 35% of the original
aggregate principal amount of Securities with the proceeds of one or more Public
Equity Offerings by the Company following which there is a Public Market at a
redemption price of 110.125% of the principal amount thereof, plus the accrued
and unpaid interest, if any, to the redemption date (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date); provided, however, that at least 65% of the
original aggregate principal amount of Initial Securities remains outstanding
immediately after the occurrence of such redemption.
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6. Notice of Redemption
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Securities to be redeemed at its registered address all in accordance with the
Indenture. If less than all of the Securities are to be redeemed at any time,
the Trustee shall select the Securities to be redeemed pro rata, by lot or by a
method that complies with applicable legal and securities exchange requirements,
if any, and that the Trustee considers fair and appropriate and in accordance
with methods generally used at the time of selection by fiduciaries in similar
circumstances; provided that Securities in denominations larger than $1,000 may
be redeemed in part but only in whole multiples of $1,000. If money sufficient
to pay the redemption price of and accrued interest (if any) on all Securities
(or portions thereof) to be redeemed on the redemption date is deposited with
the Paying Agent on or before the redemption date and certain other conditions
are satisfied, on and after such date interest ceases to accrue on such
Securities (or such portions thereof) called for redemption.
7. Repurchase at the Option of the Holder
Upon a Change of Control, any Holder of Securities will have the
right, subject to certain conditions set forth in the Indenture, to cause the
Company to repurchase all or any part of the Securities of such Holder at a
purchase price equal to 101% of the principal amount of the Securities to be
repurchased plus accrued and unpaid interest, if any, to the date of repurchase
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date) as provided in, and
subject to the terms of, the Indenture.
8. Subordination
The Securities are subordinated to Senior Indebtedness as defined in
the Indenture. To the extent provided in the Indenture, Senior Indebtedness must
be paid before the Securities may be paid. The Company and each Guarantor
Subsidiary agrees, and each Securityholder by accepting a Security agrees, to
the subordination provisions contained in the Indenture and authorizes the
Trustee to give it effect and appoints the Trustee as attorney-in-fact for such
purpose.
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9
9. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. Upon any transfer or
exchange, the Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange any Securities selected for redemption (except, in
the case of a Security to be redeemed in part, the portion of the Security not
to be redeemed) or to transfer or exchange any Securities for a period of 15
days prior to a selection of Securities to be redeemed.
10. Persons Deemed Owners
The registered Holder of this Security may be treated as the owner
of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
12. Discharge and Defeasance
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
13. Amendment; Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least
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a majority in principal amount outstanding of the Securities and (ii) any past
default or noncompliance with any provision of the Indenture (other than
payment of principal and interest or default in respect of a provision that
under Section 9.02 of the Indenture cannot be amended without the consent of
each Securityholder affected) may be waived with the consent of the Holders of a
majority in principal amount then outstanding of the Securities. Subject to
certain exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company, the Guarantor Subsidiaries and the Trustee may
amend the Indenture or the Securities to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article V of the Indenture, or to provide for
uncertificated Securities in addition to or in place of certificated Securities
(provided that the uncertificated Securities are issued in registered form for
purposes of Section 163(f) of the Code, or in a manner such that the
uncertificated Securities are described in Section 163(f)(2)(B) of the Code), to
make any change in Article X or Article XII that would limit or terminate the
benefits available to any holder of Senior Indebtedness under Article X or
Article XII, to add additional Guarantees with respect to the Securities or to
secure the Securities, to make any change that would provide any additional
rights or benefits to the Holders of Securities or that does not adversely
affect the rights under this Indenture of any such Holder, to surrender rights
and powers conferred on the Company, to comply with requirements of the SEC in
order to effect or maintain the qualification of the Indenture under the TIA or
to provide for the issuance and authorization of the Exchange Securities or
Private Exchange Securities.
14. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for 30
days in payment of interest on the Securities (whether or not such payment is
prohibited by Article X); (ii) default in payment of principal on the Securities
at maturity, upon redemption pursuant to paragraph 5 of the Securities, upon
acceleration or otherwise, or failure by the Company to redeem or purchase
(whether or not such payment is prohibited by Article X) Securities when
required; (iii) failure by the Company to comply with other covenants and
agreements in the Indenture or the Securities, in certain cases subject to
notice and lapse of time; (iv) certain accelerations (including failure to pay
within any grace period after final maturity) of other Indebtedness of the
Company or any Restricted Subsidiary if the amount accelerated (or so unpaid)
exceeds $5,000,000 or its foreign currency equivalent; (v) certain
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11
events of bankruptcy, insolvency or reorganization with respect to the Company
and any Restricted Subsidiary which is a Significant Subsidiary; (vi) certain
judgments or decrees for the payment of money in excess of $5,000,000 or its
foreign currency equivalent against the Company or any Restricted Subsidiary
which is a Significant Subsidiary; and (vii) certain failures of a Subsidiary
Guarantee to remain in full force and effect and certain denials or
disaffirmations of obligations under the Indenture or a Subsidiary Guarantee by
a Subsidiary Guarantor. If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the Securities may
declare all the Securities to be due and payable immediately. Certain events of
bankruptcy or insolvency are Events of Default that will result in the
Securities being due and payable immediately.
Securityholders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Securities unless it receives indemnity or security
satisfactory to it. Subject to certain limitations, Holders of a majority in
principal amount of the Securities may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Securityholders notice of any
continuing Default (except a Default in payment of principal or interest) if it
determines that withholding notice is in the interest of the Holders.
15. Trustee Dealings with the Company
Subject to certain limitations imposed by the Act, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may other wise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
16. No Personal Liability of Directors, Officers, Employees and Stockholders
A director, officer, employee, stockholder or Affiliate of the
Company, as such, shall not have any liability for any obligations of the
Company under the Securities or this Indenture or for any claim based on, in
respect of, or by reason of such obligations or their creation. No director,
officer, employee, stockholder or Affiliate of any of the Guarantor
Subsidiaries, as such,
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12
will have any liability for any obligations of the Guarantor Subsidiaries under
the Security Guarantees, the Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder of Securities
and Security Guarantees by accepting a Security and a Security Guarantee waives
and releases all such liabilities. The waiver and release are part of the
consideration for issuance of the Securities and the Security Guarantees.
17. Governing Law
THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
18. Authentication
This Security shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
19. Abbreviations
Customary abbreviations may be used in the name of a Securityholder
or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
20. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
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The Company will furnish to any Securityholder upon written request
and without charge to the Securityholder a copy of the Indenture which has in
it the text of this Security in larger type. Requests may be made to:
RICHMONT MARKETING SPECIALISTS INC.
0000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention of Secretary
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14
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ____________________________________ agent to transfer
this Security on the books of the Company. The agent may substitute another to
act for him.
Date: ________________ Your Signature: _____________________
Signature Guarantee:____________________________________________________________
(Signature must be guaranteed by a participant in a
recognized signature guarantee medallion program)
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
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15
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF
TRANSFER RESTRICTED SECURITIES
Reference is hereby made to that certain Indenture dated December 19, 1997 (the
"Indenture") among Richmont Marketing Specialists Inc., as Issuer (the
"Company"), the Guarantor Subsidiaries (as defined therein) and Texas Commerce
Bank National Association, as trustee (the "Trustee"). Capitalized terms used
but not defined herein shall have the meanings set forth in the Indenture.
This certificate relates to $_________ principal amount of Securities held in
(check applicable space) ____ book-entry or _____ definitive form by the
undersigned.
The undersigned (check one box below):
|_| has requested the Trustee by written order to deliver in exchange for its
beneficial interest in the Global Security held by the Depository a
Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated above);
|_| has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the periods referred to in Rule
144(k) under the Securities Act, the undersigned confirms that such Securities
are being transferred in accordance with its terms:
CHECK ONE BOX BELOW:
(1) |_| to the Company; or
(2) |_| pursuant to an effective registration statement under
the Securities Act of 1933; or
(3) |_| inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act
of 1933) that purchases for its own account or for the
account of a qualified institutional buyer to whom
notice is given that such transfer is being made
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16
in reliance on Rule 144A under the Securities Act, in
each case pursuant to and in compliance with Rule 144A
under the Securities Act of 1933; or
(4) |_| outside the United States in an offshore transaction
within the meaning of Regulation S under the Securities
Act in compliance with Rule 904 under the Securities Act
of 1933; or
(5) |_| to an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act
of 1933) that has furnished to the Trustee a signed
letter containing certain representations and agreements
(the form of which letter is attached to the Indenture
as Exhibit D and which may be obtained from the
Trustee); or
(6) |_| pursuant to another available exemption from
registration provided by Rule 144 under the Securities
Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Securities evidenced by this certificate in the
name of any person other than the registered holder thereof;
provided, however, that if box (4), (5) or (6) is checked, the
Trustee may require, prior to registering any such transfer of the
Securities, such legal opinions, certifications and other
information as the Company has reasonably requested to confirm that
such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration
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17
requirements of the Securities Act of 1933, such as the exemption
provided by Rule 144 under such Act.
________________________________
Signature
Signature Guarantee:____________________________________________________________
(Signature must be guaranteed by a participant in a
recognized signature guarantee medallion program)
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18
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933 ("Rule 144A"), and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information regarding
the Company as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated: ________________ _______________________________________
NOTICE: To be executed by an executive
officer
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19
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have
been made:
Date of Amount of decrease Amount of increase Principal amount Signature of
Exchange in Principal in Principal of this Global authorized officer
Amount of this Amount of this Security following of Trustee or
Global Security Global Security such decrease or Securities
increase Custodian
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20
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.06 or 4.08 of the Indenture, check the box:
|_| 4.06 Asset Sale |_| 4.08 Change of Control
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.06 or 4.08 of the Indenture, state the amount:
$ ______________.
Date: __________________ Your Signature: ___________________________________
(Sign exactly as your name appears on the other
side of the Security)
______________________
Tax I.D. number
Signature Guarantee:____________________________________________________________
(Signature must be guaranteed by a participant in a
recognized signature guarantee medallion program)
170
EXHIBIT D
[Form of Transferee Letter of Representation]
Richmont Marketing Specialists Inc.
c/o Texas Commerce Bank National
Association
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Dear Ladies and Gentlemen:
This certificate is delivered to request a transfer of $ principal
amount of the 10 1/8% Senior Subordinated Notes due 2007 (the "Notes") of
Richmont Marketing Specialists Inc. (the "Company").
Upon transfer, the Notes would be registered in the name of the new
beneficial owner as follows:
Name: ___________________________________
Address: ________________________________
Taxpayer ID Number: _____________________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")) purchasing for our own account or for the account of such an
institutional "accredited investor" at least $250,000 principal amount of the
Notes, and we are acquiring the Notes not with a view to, or for offer or sale
in connection with, any distribution in violation of the Securities Act. We have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes and we invest
in or purchase securities similar to the Notes in the normal course of our
business. We, and any accounts for which we are acting, are each able to bear
the economic risk of our or its investment.
2. We understand that the Notes have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Notes to offer, sell or otherwise transfer
such Notes prior to the date that is two years after the later of the date of
original issue and the last date on which the Company or any
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2
affiliate of the Company was the owner of such Notes (or any predecessor
thereto) (the "Resale Restriction Termination Date") only (a) to the Company,
(b) pursuant to a registration statement which has been declared effective under
the Securities Act, (c) in a transaction complying with the requirements of Rule
144A under the Securities Act ("Rule 144A"), to a person we reasonably believe
is a qualified institutional buyer under Rule 144A (a "QIB") that purchases for
its own account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) pursuant to offers and
sales that occur outside the United States within the meaning of Regulation S
under the Securities Act, (e) to an institutional "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is
purchasing for its own account or for the account of such an institutional
"accredited investor," in each case in a minimum principal amount of Notes of
$250,000 or (f) pursuant to any other available exemption from the registration
requirements of the Securities Act, subject in each of the foregoing cases to
any requirement of law that the disposition of our property or the property of
such investor account or accounts be at all times within our or their control
and in compliance with any applicable state securities laws. The foregoing
restrictions on resales will not apply subsequent to the Resale Restriction
Termination Date. If any resale or other transfer of the Notes is proposed to be
made pursuant to clause (e) above prior to the Resale Restriction Termination
Date, the transferor shall deliver a letter from the transferee substantially in
the form of this letter to the Company and the Trustee, which shall provide,
among other things, that the transferee is an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act and that it is acquiring such Notes for investment purposes and
not for distribution in violation of the Securities Act. Each purchaser
acknowledges that the Company and the Trustee reserve the right prior to any
offer, sale or other transfer prior to the Resale Restriction Termination Date
of the Notes pursuant to clause (d), (e) or (f) above to require the delivery of
an opinion of counsel, certifications or other information satisfactory to the
Company and the Trustee.
TRANSFEREE:___________________
BY____________________________
172
EXHIBIT E
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"),
dated as of [ ], among [NEW GUARANTOR SUBSIDIARY] (the "New
Guarantor Subsidiary"), a subsidiary of Richmont Marketing
Specialists Inc. (or its successor), a Delaware corporation
(the "Company"), THE COMPANY, the existing Guarantor
Subsidiaries (the "Existing Guarantor Subsidiaries") under the
indenture referred to below, and TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, a national banking association, as trustee under
the indenture referred to below (the "Trustee").
W I T N E S S E T H:
WHEREAS the Company and the Existing Guarantor Subsidiaries have
heretofore executed and delivered to the Trustee an indenture (the "Indenture"),
dated as of December 19, 1997, providing for the issuance of an aggregate
principal amount of up to $150,000,000 of 10 1/8% Senior Subordinated Notes due
2007 (the "Securities");
WHEREAS Section 4.11 of the Indenture provides that under certain
circumstances the Company is required to cause the New Guarantor Subsidiary to
execute and deliver to the Trustee a supplemental indenture pursuant to which
the New Guarantor Subsidiary shall unconditionally guarantee all of the
Company's obligations under the Securities and the Indenture pursuant to a
Subsidiary Guarantee on the terms and conditions set forth herein; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the
Company and the Existing Guarantor Subsidiaries are authorized to execute and
deliver this Supplemental Indenture;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Guarantor Subsidiary, the Company and the Existing Guarantor Subsidiaries and
the Trustee mutually covenant and agree for the equal and ratable benefit of the
holders of the Securities as follows:
1. Definitions. (a) Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
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2
(b) For all purposes of this Supplemental Indenture, except as
otherwise herein expressly provided or unless the context otherwise requires:
(i) the terms and expressions used herein shall have the same meanings as
corresponding terms and expressions used in the Indenture; and (ii) the words
"herein," "hereof" and "hereby" and other words of similar import used in this
Supplemental Indenture refer to this Supplemental Indenture as a whole and not
to any particular section hereof.
2. Agreement to Guarantee. The New Guarantor Subsidiary hereby
agrees, jointly and severally with all other Guarantor Subsidiaries, to
guarantee the Company's obligations under the Securities and the Indenture on
the terms and subject to the conditions set forth in Article XI and Article XII
of the Indenture and to be bound by all other applicable provisions of the
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
3. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
4. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
5. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
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6. Effect of Headings. The Section headings herein are for
convenience only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR SUBSIDIARY],
by
---------------------------------
Name:
Title:
RICHMONT MARKETING SPECIALISTS INC.,
by
---------------------------------
Name:
Title:
[EXISTING GUARANTOR SUBSIDIARY],
by
---------------------------------
Name:
Title:
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Trustee
by
---------------------------------
Name:
Title:
175
EXHIBIT F
[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS PURSUANT TO RULE 144A]
Texas Commerce Bank National
Association
0000 Xxxx Xxxxxx, 0xx xxxxx
Xxxxxx, XX 00000
Attention: Corporate Trust Administration
Re Richmont Marketing Specialists Inc. (the
"Company") 10 1/8% Senior Subordinated
Notes due 2007 (the "Securities").
Ladies and Gentlemen:
In connection with our proposed sale of $[ ] aggregate principal
amount of the Securities, we hereby certify that such transfer is being effected
pursuant to and in accordance with Rule 144A ("Rule 144A") under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, we hereby further certify that the Securities are being transferred
to a person that we reasonably believe is purchasing the Securities for its own
account, or for one or more accounts with respect to which such person exercises
sole investment discretion, and such person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A and such Securities are being transferred
in compliance with any applicable blue sky securities laws of any state of the
United States.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter
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2
or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.
Very truly yours,
_________________________________
[Name of Transferor]
by: _____________________________
Authorized Signature
177
EXHIBIT G
[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S]
Texas Commerce Bank National
Association
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attention: Corporate Trust Administration
Re Richmont Marketing Specialists Inc.
(the "Company") 10 1/8% Senior
Subordinated Notes due 2007 (the "Securities").
Ladies and Gentlemen:
In connection with our proposed sale of $[ ] aggregate principal
amount of the Securities, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the
United States;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the United
States or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the
provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are applicable
thereto, we confirm that such
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2
sale has been made in accordance with the applicable provisions of Rule
903(c)(3) or Rule 904(c)(1), as the case may be.
The Company and you are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
_________________________________
[Name of Transferor]
by: _____________________________
Authorized Signature